Colorado’s bail system is irrational, harmful

Colorado is in the midst of a jail crisis. Across the state, jails are overcrowded, with several jails operating at 150 percent capacity with deplorable conditions. Yet the majority of people in those jails have not been convicted — they have been accused of a crime and are deemed to be innocent in the eyes of the law. Many will ultimately be exonerated. Many who are convicted will be sentenced to probation and released when their case is disposed of, and all but a very few are constitutionally entitled to release until their trial.

The difference between those who are freed pre-trial and those who are kept behind bars is simple and disturbing: money. Those with money can pay their bail and go free while those without money must sit behind bars and wait for trial, or, as defendants often do, plead guilty just to get out of jail and get home sooner. This situation does not just deprive people of their liberty, it puts them at risk of losing their job, frays family relationships and exposes their families to loss of housing and financial insecurity.

In this irrational system, individuals who are dangerous or likely to flee prosecution can buy their way out of jail while impoverished individuals who pose no risk of flight or to public safety remain incarcerated. This is particularly concerning because we know that, solely as a result of their pretrial incarceration, individuals who remain in jail pretrial are more likely to be convicted, receive a heavier sentence and have future involvement with the criminal justice system than those who are freed.

This system of wealth-based detention is not only bad policy, it is unconstitutional. Across the country, courts are finding that jailing individuals because they can’t afford bail violates the right to equal protection and due process. A wealth of research shows that using money bail does nothing to advance the only two legitimate purposes of bail: getting people to return to court and protecting the community from violence. Non-monetary conditions of release, such as court reminders and community-based supervision, are much more effective in advancing these goals.

While comprehensive bail reform in Colorado requires action by the legislature, it is ultimately the judiciary that must change its practices. Without judicial leadership, bail reform is likely doomed in this state.

Case in point: In 2013, I sponsored legislation to reform this state’s bail system, in part by discouraging judicial reliance on money bail and inflexible bond schedules and encouraging individualized assessment of risk. Unfortunately, most judges in Colorado do not follow the requirements of the 2013 law — they still perfunctorily require payment of money as a condition of pretrial release and do not seriously consider a defendant’s ability to pay the bond set by the court. As a result, our jails remain crowded with pre-trial defendants incarcerated simply because they are poor.

Some Colorado judges are working hard to comply with the 2013 law and constitutional requirements. Judges in Mesa County, Denver, Aurora and Boulder are working to dramatically roll back the use of cash bail and increase release on personal recognizance bonds. But this issue cannot be left to the inclinations of judges in each of Colorado’s 22 judicial districts.

Outgoing Colorado Supreme Court Chief Justice Nancy Rice has formed the Bail Blue Ribbon Commission to address Colorado’s pretrial release practices. Colorado is desperately in need of statewide reform of bail practices but, while leadership from the top is encouraging, lack of progress reflects lack of commitment at the trial court level and not lack of legal authority. The 2013 law was the result of negotiation with prosecutors, defense attorneys, the bail bond industry and the judicial branch, and it provided the tools needed to end the practice of incarcerating people awaiting trial.

Whether this Commission accomplishes anything will depend on strong leadership and commitment by all its members to ending incarceration of pretrial detainees.

Claire Levy of Boulder served in the Colorado legislature from 2007 to 2013.