UPDATE: The bill discussed in this article has been introduced into the state legislature as Senate Bill 21-062.
DENVER–A bill being prepared for the 2021 legislative session, sponsored by Sen. Pete Lee, D-Colorado Springs, would prohibit law enforcement from arresting people in a wide array of cases including three classes of felonies and two classes of drug felonies. The bill also seeks to significantly restrict the use of cash bonds.
The Colorado legislature had been slated to reconvene for its 90-day 2021 session on January 13, but the Democrat majority recently announced start of the full session will be delayed until February 16 due to COVID-19 precautions. As reported by the Colorado Sun, lawmakers will instead gavel in on the 13th to address “urgent business” before gaveling back out after a few days.
A draft of the bill obtained by Complete Colorado and dated Dec. 1 requires police to issue summons and complaints with nothing more than a promise to appear for most offenses.
Arrest for traffic violations and misdemeanors would only be permitted if required by statute, such as the mandatory arrest provisions in domestic violence cases. For the felony classes covered under the bill, arrests can be made only if there is a statutory requirement or the arresting officer “documents an objectively reasonable basis to conclude the person poses a threat to the safety of another absent arrest.”
The summons and complaint requirement does not apply to anyone refusing to identify themselves, if they were arrested or convicted “in the last 12 months for certain DUI offenses,” or the offense is “a crime under the victim rights act and the individual poses a threat to the safety of another or is unwilling to stop the criminal behavior without arrest.”
It also prohibits courts from issuing cash bonds in such cases “unless the court finds the defendant will flee prosecution or seriously harm another person.”
Instead, courts are required to issue personal recognizance bonds for such charges as well as for failure to appear, unless the defendant has “3 or more failures to appear in the case.” The personal recognizance requirement also applies to violations of conditions of pretrial release or a probation hearing “unless it is based on a commission of a new crime.”
This is not Colorado’s first attempt at bail reform. A 2019 bill, HB19-1225, prohibiting cash bail for low-level offenses like traffic violations, petty offenses and class 3 misdemeanors was signed into law. Other attempts to prohibit cash bail failed in 2018 and 2020.
The bill also prohibits the execution of misdemeanor arrest warrants outside the county in which they are issued “unless arrest is statutorily required.”
Another section deals with county sheriffs and jails and gives sheriffs “tools” to manage jail populations by, for example, “reserving jail beds for individuals who pose a clear risk of physical harm to others,” setting their own standards for holding prisoners and asking judges for permission to release entire categories of arrestees on personal recognizance, among others.
Senator Lee told Complete Colorado that the impetus for the bill was a request by several county sheriffs “to put into statute the authority and prerogative of sheriffs to actively manage their jails.”
When asked by Complete Colorado about specifics in the bill Lee deferred comment.
“This is a draft and a lot of the language in this bill will be subject to revision and review…to be sure that what we’ve got is consistent with state law,” said Lee.
Lee said that the American Civil Liberties Union (ACLU) was involved in the drafting process, although he couldn’t identify specifically who drafted what parts of the bill.
The ACLU is actively pursuing bail reform across the country, claiming cash bail is “harmful, unnecessary, and against the core principles of our Constitution.”
In California, legislation to abolish cash bail effective October 2019 was signed into law in 2018.
In response, Californians approved a referendum to delay the implementation of the law pending a public vote. The resulting Proposition 25 was defeated 55% to 45% in this year’s November 3 election, thus repealing the law and leaving California’s cash bail system in place.
In a July 23 Politico article on the furious citizen backlash to New York’s recent attempt at abolishing most cash bail, writer Jamiles Larety asked Stan Hilkey, executive director of the Colorado Department of Public Safety about the potential effects on bail reform of releasing arrestees due to COVID-19 concerns.
“If they show up for court and don’t commit any more crime or victimize people,” Hilkey is quoted as saying, “the data in the coming months and years could write a very supportive story for Colorado’s efforts to reduce crime and incarceration.”
The draft Colorado bill is titled “Concerning measures to reduce jail populations.”
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