With California lawmakers last month abolishing the state’s cash bail policy and a federal district judge in Texas recently tossing out one county’s monetary bail system, finding it violated the equal protection clause of the U.S. Constitution, discussions of how best to reform discriminatory bail programs have gained momentum across the country — including in Colorado.
“We’re perhaps on the precipice of reform that will make it fairer as far as not punishing poor people just because they’re poor.” said Rebecca Wallace, staff attorney at the ACLU of Colorado. However, she added that the ACLU is concerned some of the reforms are not aimed at actually reducing jail populations.
Wallace said the ACLU of Colorado is currently studying the state’s jail population but suggested that about 60 percent of people sitting in jails statewide are pre-trial detainees — those accused of but not yet convicted for committing a crime. Almost all of those people, Wallace said, are stuck in jail because they can’t afford to pay their bond.
“The way the system is set up here in Colorado is that the vast majority of people who are accused of a crime will have monetary bond set without meaningful consideration of their ability to pay,” Wallace said. “Basically, that people with money can pay their way out regardless of how dangerous they are or how likely they are to flee prosecution, and people who can’t pay get stuck regardless of how low-level their accused offense, how unlikely they are to do harm upon release and how likely they are to show up for court.”
That line of thinking is what led many activists to push California to abolish cash bail, making it the first state to do so completely. The state’s law will take effect in October 2019.
Rachel Sottile Logvin, vice president of the Pretrial Justice Institute, noted the historical context of why this particular issue has become such a problem. In the 1980s, she said, about two thirds of people sitting in county or local jails had been convicted of crimes. Fast forward to today, Logvin said, that statistic has flipped. Now, about two thirds of people in jail are pretrial. “Violent crime and property crime are decreasing, but jail populations are increasing,” she said. “Money becomes the deciding factor; it is a waste of important resources that otherwise could be utilized in another way.”
Logvin said that although others haven’t formally eliminated the policy in the way California has, states such as New Mexico and New Jersey have effectively eliminated cash bail by turning instead to risk assessment models.
Wallace also expressed that point: “In New Jersey,” she said, “they’ve seen a 30 percent decrease in jail population with no change in crime rates.” She noted this has been a bipartisan issue and that sheriffs have also been advocates for changing to the bail system. “Many sheriffs have expressed frustration with their overcrowded jails serving as debtors’ prisons for individuals who pose little to no public safety risk.”
Two government commissions in Colorado are currently studying the state’s bail system. In March, the Colorado Supreme Court announced it would form a Blue Ribbon Commission specifically to examine possible changes to the bail system. The commission has met three times since its formation, hearing input from both Denver and Weld counties. The Colorado Commission on Criminal and Juvenile Justice also formed a Pretrial Release Task Force in June 2017; that group includes a diverse set of lawmakers, public employees, elected officials, educators and others.
“America has an exceedingly high incarceration rate, one of the highest in the world per capita,” said Stan Hilkey, the executive director of the Colorado Department of Public Safety, and the chair of the CCJJ Task Force. “There’s a lot of recent case law that’s calling into question pretrial detention as such a pervasive use — it has become more the rule than the exception.”
Hilkey said one of the topics the Task Force is tackling, and one of the reasons for its formation, is to address why a 2013 statute, House Bill 1236, that included some pretrial reforms hadn’t been implemented all across the state. In particular, the statute encouraged jurisdictions to use an empirically developed risk-assessment tool instead of a cash bail schedule “where practical and available.”
“We had some good reforms but they’re not necessarily being implemented across the state consistently,” said Jennifer Bradford, a member of the Task Force who teaches criminal justice at Metropolitan State University of Denver. “I think it’s incredibly important. It’s a completely misunderstood and under-reported topic. People just think of it as bail; they don’t understand how important this one decision is.” Bradford added, “People can be detained in a bail setting so early on, before any innocence or guilt or anything has been determined.”
Hilkey said the Task Force hopes to develop some recommendations in the coming months. “We wanted to develop recommendations regarding the use of pretrial tools on a statewide basis; we feel like we don’t have statewide consistency.”
— Chris Outcalt