A pair of bills to reform bail practices in Colorado passed their first committee hearings last Monday. But if financial and philosophical divides revealed by testimony are any indication, the bills will have anything but a smooth path to the governor’s desk.
Senate Bill 161 requires Colorado counties to develop pretrial release programs that reduce the use of cash bail. It was developed and ultimately endorsed by the Colorado Commission on Criminal and Juvenile Justice, which includes stakeholders from a diverse range of backgrounds including criminal defense, law enforcement, district attorneys’ offices and the judiciary.
To reduce reliance on cash bail, the bill requires counties to use risk assessment tools that help determine a person’s pretrial release conditions by estimating the likelihood they will show up for future court dates or commit more crimes while awaiting trial. Risk assessment tools carry a risk of bias, so Senate Bill 161 requires the Division of Criminal Justice to evaluate any risk assessment tool for accuracy. The bill also requires a judge to make the final decision about a person’s pretrial release conditions. It includes some state money to help subsidize counties’ costs of developing and running the programs.
A related measure, Senate Bill 172, requires bond hearings within 48 hours of someone’s arrest. It aims to help counties meet the mandate by creating a bond hearing officer position who would act as a magistrate to conduct hearings when needed. Judicial districts with counties designated as high priority or eligible county by the Underfunded Courthouse Facility Cash Fund Commission – which currently includes more than half of Colorado’s counties – can use the officer on weekends and holidays.
Senate Bill 172 also includes a grant fund for cash-strapped counties to purchase or upgrade audiovisual equipment for conducting remote hearings. Any judicial district can choose to hold hearings remotely, and proponents of the bill say it will save money by reducing resources spent transporting defendants to and from jail for bond hearings. The bill’s fiscal note estimates the cost to the judiciary of video conferencing at $400,000 for the next two fiscal years.
Senate Bill 161 is modeled after Mesa County’s pretrial program, which a prosecutor said hasn’t increased crime rates because it has helped the 21st Judicial District focus on defendants with a higher risk of committing more crimes. Mesa County uses a risk assessment tool in making pretrial release decisions, and he said about 80% of people awaiting trial are now released without a cash bond.
“I believe that through a combination of the risk assessment tool and professional judgment of the judges, we have fairly accurately targeted the right people,” said Bo Zeerip, the 21st Judicial District’s chief deputy district attorney. “One of the things we’ve also done is kept track of who’s in our jail … and we saw before the use of the risk assessment tool that we had a lot of low-risk people in our jail.”
During Senate Judiciary Committee hearings last Monday for the pair of bills, much of the disagreement focused on the price tags of the mandates rather than the principles of reforming bail practices. Attorney General Phil Weiser asked for $6.5 million in state money to fund bail reform, and the governor has asked for $5 million for criminal justice reform. But opponents of the bills say subsidizing counties’ pretrial release programs and expedited bond hearings will likely cost far more than the bills’ fiscal note analyses have estimated.
Since the need for state money to help fund pretrial release programs in cash-strapped counties is a key sticking point for the financial feasibility of these programs, the legislature would have to allocate money each year for them to continue operating.
Senate Bill 161 sponsor Sen. Bob Gardner acknowledged the risk of relying on the legislature to appropriate money each year for pretrial release programs, and said he’s “working with stakeholders” to get some assurance the legislature will continue setting aside money for pretrial release. “It’s always a conundrum when we create something like this. Doesn’t mean we shouldn’t.”
Opponents of the bills echoed similar doubt about the structure of state funding for the measures.
Testifying on Senate Bill 172, Gini Pingenot from Colorado Counties, Inc. said she disagrees with the approach of grant funding for counties to maintain audiovisual equipment for remote hearings because it only provides one-time funding. According to the bill’s fiscal note, the grant fund sunsets in 2025. Pingenot said adding the funding assistance as a permanent line item to the judiciary’s budget would be a better approach.
“As arms of the state, we are often coming before the [Joint Budget Committee] for funding on a variety of things,” she said. “Adding this as another unfunded mandate in which we are going to have to come to the JBC in order to meet our needs is a really tenuous point.” Pingenot added the judiciary should have authority to ask the Joint Budget Committee for more funding mid-fiscal year if needed.
County Sheriffs of Colorado and the Colorado District Attorneys’ Council also testified against Senate Bill 172.
A contract lobbyist for the sheriffs’ association explained there’s uncertainty about how much of the governor’s $5 million funding request for criminal justice reform would actually go to Senate Bill 172. Tom Raynes, executive director of the District Attorneys’ Council, clarified he doesn’t oppose the bill’s philosophy, but that he believes the legislature has underestimated its costs.
Rebecca Wallace, a senior staff attorney with the American Civil Liberties Union of Colorado, said she believes some judicial districts overestimate how much the bill’s mandate would cost them by basing estimates on keeping courts open on weekends and conducting in-person hearings instead of using the bill’s option for remote hearings and deploying the state-funded bond hearing officer.
“We see there are all these different options jurisdictions want to comply, and if they want to choose the expensive way they should pay for it. And if they want to have a less expensive, more efficient option, the state should provide it.”
—Julia Cardi