In the year after former Chief Justice Nancy Rice created a blue ribbon commission to study bail reform statewide, Colorado’s legislature is taking small steps toward overhauling bail practices.
The details of a new Colorado pretrial release program measure may change in the search for best practices, but proponents’ arguments for the need for reform haven’t: Supporters say moving away from cash bail stops the de facto criminalization of poverty, and saves money spent on locking up people who aren’t actually a threat to society.
“If they have money, [jail] can be a very unpleasant but short experience. If they don’t have money, it can be six months or more just because they’re waiting for their trial,” said Attorney General Phil Weiser. “That’s not justice. We can do better.”
Two bills addressing pretrial release reform passed in this year’s legislative session, including House Bill 19-1225 that eliminated cash bail for traffic, municipal and petty offenses. But a third bill, House Bill 19-1226, was left in limbo. It passed the House on May 1 but ran out of time after introduction in the Senate. It would have required counties to develop pretrial release screening programs, including the use of risk assessment algorithms.
In a news release about Gov. Jared Polis’ budget request, Weiser said he supports budgeting $6.5 million for creating pretrial release programs in all of Colorado’s counties. Weiser said that since bail reform has been a work in progress, proponents aren’t starting from scratch for the next session. “I think the matter is having the calendar on our side instead of against us.”
Sponsors of House Bill 1226 said the measure struggled to get buy-in from smaller counties that can’t afford to fund a pretrial services program themselves.
“In Denver, for instance, we have pretrial [services],” said Rep. Leslie Herod. But other counties don’t have a separate department or agency that looks at pretrial specifically.”
Rep. Matt Soper, who also sponsored the bill, said it stalled out in the Senate because some counties wanted lawmakers to hold out for more state funding. According to the bill’s most recent fiscal note, it would have appropriated $3.1 million to the judicial department and Department of Public Safety.
“That was why it ultimately failed in the Senate. There just wasn’t a pot of money really attached to it. We scraped the bottom of the barrel for some dollars, but it really just wasn’t enough.”
The Commission on Criminal and Juvenile Justice also supported House Bill 1226. Department of Public Safety executive director Stan Hilkey chairs the CCJJ, and he declined to comment specifically about the organization’s input on any new legislative effort. A DPS spokesperson said the CCJJ is “hoping to have improved recommendations regarding pretrial release with more stakeholder involvement by January.” Soper is also a member of the commission.
House Bill 1226 called for each county to develop its own pretrial release screening program, and statewide standards from the judicial branch. Weiser said he believes some kind of combination between local and statewide authority is necessary in bail reform.
“What works in Lamar might be different than what works in Grand Junction, and we don’t want to necessarily just impose a prescriptive approach.”
Weiser said not all local governments necessarily need state funding. Some local governments such as Denver and Boulder have already invested in pretrial release screening. He envisions the state funding allocated to counties most in need of resource help and perhaps extra money for counties to encourage experimenting to find best approaches for bail reform.
Soper said, in a perfect world, the state should fund all counties’ pretrial release programs. But he recognizes that’s idealistic, and a grant approach in which counties request what they need is probably a more pragmatic approach.
“I think that’s probably where you’ll see see some negotiations take place because … I don’t want to be in a position where you have a big county that’s wanting to apply for state funding that gets denied because they’re told [they] have the resources,” he said. “I think that it really needs to be fair for all counties to be able to have an equal shot.”
Testimony and comments from a few lawmakers have raised particular concerns over the risk of built-in bias of risk assessment algorithms.
A 2016 investigation by the nonprofit news organization ProPublica delved into the racial bias of risk assessment tools and their tenuous reliability in predicting an arrested person’s likelihood of committing more crimes in the future, which is the algorithms’ purpose. The investigation examined other studies of risk assessment algorithms and conducted its own analysis of risk scores assigned to thousands of people in Broward County, Florida.
Soper said he has had hesitations about using risk assessment algorithms. He believes judges should make the final decisions about people’s release, and while risk assessment algorithms can have a place as one tool in decision making, they shouldn’t bind judges.
“We’re not living in some weird Tom Cruise movie where we have a pre-crimes unit that can determine what your propensity is for committing a future crime.”
Weiser also said he’s mindful of risk assessment tools’ propensity for bias, and they require attention to the quality of the information that’s fed into them.
“The goal here with any tool is to help get past biases, not to codify them. A good risk assessment tool will actually overcome the biases of judges.”
Soper agrees that it’s unjust to keep people in jail because they can’t pay their bond, but he added a few words of caution to optimism about passing a measure. Although bail reform has support from the attorney general and Gov. Jared Polis, the bail lobby does not support moving away from cash bail, because it’s central to their profits.
“That will continue to be a major hurdle going forward, and anyone who thinks this will be an easy legislative lift is completely wrong.”