Colorado’s jail population plummeted due to temporary pandemic changes. Some could become law.

When Elisabeth Epps, co-founder of Colorado Freedom Fund, talks about abolishing cash bond — the amount of money someone has to pay in order to get out of jail while awaiting court — she’s explicit.

“Can someone tell me who this handsome, happy, smiling man is?” Epps asked a group gathered online for a court watch training in February. She was pointing to an image of Michael Marshall, a 50-year-old Black man who in 2015 was in jail after being unable to pay a $100 bond for an alleged trespassing and disturbing the peace violation and days after his arrest was killed by Denver jail deputies.

“We’re doing this work, so that the reason that you know Michael Marshall’s name is because of a poem he wrote or a sermon he gave, not because he was killed while held on a money bond,” Epps, who is a former public defender, said. “We cannot end mass incarceration, and all that that entails, without first changing what happens before trial.”

The number of people booked in Colorado jails last year decreased by over 46% between April and September as a result of temporary changes enacted by sheriffs and district attorneys that put limits on who could be arrested for what crimes, and when courts can issue cash bonds during the pandemic.

Now, state lawmakers and criminal justice advocates hope to cement some of the temporary changes into law.

Senate Bill 21-062, which passed out of the Senate Judiciary Committee on March 4 and now heads to the Appropriations Committee, aims to restrict police officers from arresting people accused of certain crimes, including misdemeanors and some low-level felonies. Instead, these individuals would be given a summons to appear in court. The bill also seeks to ban the use of money bail for low-level crimes, a practice that has long kept poor people behind bars when individuals with more money can buy their way out while awaiting court. 

The bill includes a long list of exemptions that would allow arrest, including if the person is driving under the influence, if the crime involves a direct harm to a victim — such as sexual assault, murder, and kidnapping — and if the crime involves the illegal possession or use of a gun.

Opponents of the bill worry that the changes could result in an increase in crime

Supporters of the bill say that despite nearly half as many people being in jail during parts of last year, crime overall has remained relatively stable. But according to the Colorado Bureau of Investigation, there was a 3.9% increase from 2019 to 2020 in total reported crimes. Much of that increase is due to a surge in property crimes throughout the year. For example, motor vehicle theft increased by 28% from 2019 to 2020. While some crimes increased, others, such as DUIs and sexual assaults, reportedly decreased last year.

“To me that’s not a small uptick, that’s a major problem,” said state Sen. John Cooke, a Greeley Republican and a former Weld County sheriff who opposes the bill. “To suggest that not putting people in jail has nothing to do with crime rates, that’s far-fetched and ridiculous.”

But researchers warn that trying to tie jail depopulation efforts to rising crime in 2020 leaves out one crucial variable: the pandemic.

“When we think about crime, we shouldn’t think about it as a consequence of lack of incarceration,” Andrea Borrego, assistant professor of criminal justice and criminology at Metropolitan State University, said. “We should think about crime as a consequence of what we’re not providing to our society.”

The United States, with approximately 2.2 million people in prison and jails, incarcerates more people than any other country, according to analysis from The Sentencing Project, a criminal justice research and advocacy organization. The number of people incarcerated has increased 500% over the last 40 years, far out pacing crime rates. Much of that increase can be attributed to the number of people being incarcerated waiting for their court date, according to Borrego. 

Borrego said while there are still a lot of unknowns when trying to understand the impact the emotional and economic crisis brought on by the pandemic has had on crime rates, the outlook is likely not good. 

“To try to say that any change in crime is due to depopulation efforts, that’s not correct. It’s more nuanced than that,” Borrego said. “This is all happening in the middle of a global pandemic that is unprecedented for our population and we have only just started to understand the impacts of all of this.”

Using the pandemic year as a roadmap

When COVID-19 hit in March 2020, officials within the Jefferson County jail quickly evaluated who in the jail was there for low-level offenses and whether they could be released on personal recognizance bonds while they awaited trial.

“The sheriff also, much like all the other sheriffs across the state, evaluated the offenses that were actually coming into the facility, and sent out a sheriff’s directive that said we were only going to take certain levels of crimes,” said Rob Reardon, who oversees the Jefferson County jail.

Reardon said the most restrictive directive precluded new people into the facility unless their alleged offense involved direct, physical harm to a victim. As a result, the jail decreased its population by 48.7% between April and July.

“So we did that for several months, and just recently within the last couple of months we’ve actually reduced that restriction,” Reardon added. “So that we are now taking (class) 4 or 5, and 6 felony offenses.”

The bill as written would follow many of the same parameters by prohibiting officers from arresting a person for traffic, petty, municipal, misdemeanor, class 4, 5 or 6 felony (such as trespassing, low-level burglaries and criminal mischief) or level 3 or 4 drug felony offenses. But lawmakers are proposing a long list of exceptions.

Officers would still have the authority to take a person into jail if: the officer can’t determine the person’s identity; the suspect was driving under the influence or has been convicted of such in the last five years or three or more times in the past; the offense involves a direct harm to a victim, the illegal possession or use of a firearm or is a violation a temporary or regular extreme risk protection order; the person poses a credible threat to a school; or the person would remain an immediate threat to another person.

Reardon said, as a resident, he feels there has been an increase in crime, specifically car thefts, in response to his county’s efforts to depopulate the jail. “Relative to the data, I couldn’t speak to that,” he said. “I’m just the jail guy.”

But he recognized that the pandemic could also be playing a role in the perceived increase in crime. 

“Jails are a microcosm of what’s going on in the larger community. And so I think, you know, there’s a lot of stress out there,” Reardon said. “I think a lot of people are dealing with stress as a function of the pandemic and that’s coming out in the higher numbers we are seeing.”

Reardon’s main concern with the proposed legislation is that it would limit the authority an officer has to arrest someone they think is a danger. “Once you’re taking that authority away from people, I don’t think it’s going to be good,” he added. 

Eliminating policies that keep poor people behind bars while the affluent can buy their freedom

The proposed bill, which the ACLU of Colorado supports, would ban judges from issuing cash bonds for people accused of the types of offenses cited in the arrest-reducing provision. 

“This bill is intended to increase freedom and liberty in Colorado by not arresting and jailing people who commit low level offenses, by reducing reliance on cash bonds — which adversely impacts poor people — so presumptively innocent people are not detained pretrial,” state Sen. Pete Lee, a Colorado Springs Democrat, told lawmakers on March 4.

Instead, the court would issue a personal recognizance bond unless the court finds that the defendant will likely flee prosecution or threaten the safety of another person if not held in custody. Past failure to appear in court or citizen status alone are not be sufficient evidence of future intent to flee prosecution, according to the amended bill.

The court would also be required to issue a personal recognizance bond instead of a cash bond when a person accused of a crime fails to appear, with exceptions for a person who has missed court three or more times in the case; the violation is for failure to complete court ordered sex offense treatment; or a crime is related to domestic violence. Personal recognizance bonds would also be given for parole violations, unless the violation is related to a new crime. 

A judge is still allowed to issue a cash bond if they have substantial reason to believe the suspect will flee prosecution or threaten the safety of another person, or if the person suspected of a crime has already had probation revoked for failure to comply.

“After a year of these policies, we know that the sky didn’t fall when we cut our jail populations in half,” Lee said. “And tens of thousands of people’s lives were changed because they were home with their families, able to keep their jobs, able to avoid getting COVID.”