Rounding out Reform Efforts

Colorado’s reform commission supplements other state efforts underway

Colorado’s Supreme Court recently announced a new bail reform commission, which will examine bail systems in the state to assess their fairness to defendants and ability to protect public safety. / LAW WEEK FILE

The Colorado Supreme Court announced March 5 the formation of a commission to examine and recommend possible changes to bail practices around the state. The initiative is part of a larger push for bail reform around the U.S., and marks the beginning of judicial participation in Colorado’s own reform measures that date back several years.

Eighteenth District Chief Judge Carlos Samour, who will chair the commission, said he first got involved in bail reform when he attended a regional conference of chief judges and state court administrators a few years back and heard about bail reform practices some states have examined and implemented.

“There’s a trend around the country to look at bail issues and to try and improve it, so I was energized and motivated after that meeting to try to do something,” Samour said. He explained bail has two goals: to make sure people show up for their court dates and also to protect the public.

Various states have examined bail reform approaches that maintain defendants’ right to pretrial release under most circumstances while also protecting the public. In 2016, voters in New Mexico approved a constitutional amendment that allows courts to deny bail to people charged with felonies if the defendant is deemed a public threat. Conversely, the measure also ensures courts can’t deny defendants bail because of financial inability to post bond. 

Washington, D.C., has not relied on a money bond system in bail for more than 20 years. Instead, the area uses risk assessment algorithms to “score” people arrested on how likely they are to show up again or reoffend in order to help determine pretrial release conditions. New Jersey adopted a similar approach in 2016, and implemented it in January 2017. In Washington D.C., more than 90 percent of defendants are released pending trial either on their own promises to appear for court dates or with some supervision conditions.

“The idea is, how do we have an evidence-based system that allows us to make accurate risk assessments that then help us make better decisions?” Samour said.

Cherise Burdeen, chief executive officer of the Pretrial Justice Institute, praised Colorado’s formation of its blue ribbon commission. She explained that pretrial risk assessment tools are part of a more “holistic” way to determine appropriate pretrial release conditions. Colorado developed a pretrial risk assessment tool to help determine release conditions as part of bail systems, and Mesa County became the first jurisdiction to implement the Colorado Pretrial Assessment Tool (CPAT) in 2012. Seventeen counties use the tool according to an October 2017 report from the Colorado Criminal Defense Institute. Some other counties do not use their own forms of pretrial risk assessment

The shift away from reliance on money bonds in bail across the U.S. is in part driven by the concern that their use disfavors low-income people who don’t have the money to post bond, and can send them into a deeper cycle of poverty. Burdeen explained that keeping people charged with low-level, nonviolent crimes in jail before trial also places a high cost on counties.

CPAT determines the percentage likelihood of defendants to show up for court and stay arrest-free pending trial. The tool uses a matrix combining specific charges and assessment scores to suggest the most appropriate pretrial release conditions. The recommendations do not include financial conditions.

“This is not about trying to use science to pick the best money dollar amounts, because there is no such thing as science being able to tell you whether $12,000 versus $15,000 is the ‘right amount of money,’” Burdeen said.

According to a 2010 bail study out of Jefferson County, increasing the use of secured money bonds in pretrial releases did not make defendants show up for court appearances more, or increase public safety or compliance with other supervision conditions.

Samour said the commission, which currently comprises 11 judges and other members of the judicial branch, has been designed to represent all of Colorado’s population, not just the large urban areas. In part, the commission will examine funding options for pretrial services programs around the state, which are currently funded at the county level. Colorado currently has standalone pretrial services programs in more than a dozen of its 64 counties: Adams (Run jointly with Broomfield County), Alamosa, Arapahoe, Boulder, Denver, Douglas, El Paso, Garfield, Jefferson, Larimer, Logan, Mesa, Montezuma, Morgan, Pueblo and Weld.

According to 2012 data from the Colorado Legislative Council, the 13 counties with pretrial services programs at the time covered 85 percent of the state’s population.

Burdeen expressed a few hopes of her own for the state’s new blue ribbon commission. She said she hopes it will consider recommendations to the legislature for legal means of detention for defendants who are a public safety threat. She also pointed to the need to address racial disparities in the criminal justice system in bail reform considerations, explaining that people of color are more likely to be arrested, given unaffordable bonds, and receive harsher sentences because of pretrial detention.

“For many people, that alone is a motivator,” Burdeen said. “Even though what we need to do certainly is go back to policing practices in terms of racial disparity work, can we work to minimize or eliminate disparity at the bail-setting moment?”

Samour expressed his excitement for the commission’s upcoming work. “I’m thrilled,” he said. “I think it’s a great opportunity for us to come together, explore what we’re doing in terms of pretrial practices, and see if there’s…room for improvement there, and if so, what that is.”

— Julia Cardi

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