Arrested on a Friday? For some Coloradans, that may mean waiting in jail until Monday or a Tuesday for a bond hearing when courts are back open.
Now, Democratic state lawmakers want to make it easier for people in jail to have their bail set and avoid getting stuck in lockup longer than necessary.
House Bill 1280 would require courts to hold a bond hearing within 48 hours of a person’s arrest and booking in jail. It also aims to cut barriers to those hearings being held by allowing hearings to be held by phone and video conference and requiring judicial districts to come up with a way for bail to be paid online.
The legislation would also create a statewide bond hearing officer who can hold hearings remotely and on weekends and holidays, when local courts, particularly in rural areas, are closed.
“This bill is all about due process,” said state Rep. Steven Woodrow, a prime sponsor of the legislation along with fellow Denver Democratic Rep. Serena Gonzales-Gutierrez. “We have the technology and the means now to get people out of cages sooner.”
If someone is arrested, they must appear at a bond hearing and request that a judge allow them to be released from police custody while their criminal case is pending. A judge will often set bail at that time, allowing the person to be free while they await a trial.
Getting someone out of jail a day sooner can prevent people from missing a shift at work and losing a job, said Tristan Gorman, a lobbyist for the Colorado Criminal Defense Bar who also works as an attorney.
“It’s incredibly important to get a bail hearing within 48 hours – that’s when the worst collateral consequences of pretrial detention happens,” said Gorman, adding that low-income people often “suffer the most for being in jail, may not be able to get to their kids, they have transportation issues.”
There are many reasons why someone may spend more time in jail than necessary before trial. People can be kept in jail longer than 48 hours when they are arrested before the weekend or a holiday and can’t be seen by a judge. In other cases, a person may be arrested by law enforcement in one judicial district for a warrant issued by another.
“Say it’s issued in Denver, and you’re picked up on that warrant in Weld County. So you’re arrested and held in Weld, sometimes for days on end, until the two districts can coordinate getting you in front of a judge,” said Denise Maes, public policy director for the American Civil Liberties Union Colorado, which helped write the bill.
But county sheriffs and rural district attorneys have raised concerns about the cost of complying with the requirements of the legislation. The bill doesn’t have new funding for local government agencies, though it could cost them large sums.
“Colorado sheriffs would support holding bond hearings within 48 hours if there is additional funding to comply with this new requirement,” Amy Nichols, executive director of the County Sheriffs of Colorado, said in an emailed statement.
The legislation follows a 2019 bill, Senate Bill 191, which required each judicial district to outline plans for how they would hold bond hearings within 48 hours of a person’s arrest and estimate the cost of doing so. Some urban judicial districts see thousands of court filings a year but have hundreds of employees, while more rural districts can span hundreds of square miles and multiple counties with a limited number of judges and staff members.
Courts already started holding video conference hearings during the coronavirus pandemic, Maes said, showing how easily many proceedings could be conducted remotely.
“The bill is a little easier to swallow this session than prior sessions,” Maes said.
A number of rural district attorneys have raised concerns about the cost of complying with the new requirements. Although creating a statewide bond hearing officer could ease pressure on local courts, district attorneys would still have to attend and prepare for additional weekend hearings, said Christian Champagne, 6th Judicial District Attorney and president of the Colorado District Attorneys’ Council.
“The problem is it creates a major, unfunded mandate for communities. Many of us in rural jurisdictions don’t hold court on Saturdays and Sundays,” said Champagne, whose district includes Archuleta, La Plata and San Juan counties. “We’re going to have to staff up our offices to appear in court and conduct background work that goes into bond arguments. ... That does come with costs.”
Champagne said additional weekend duty would have a bigger impact on his 11 attorneys and seven legal assistants compared with a big urban district. He supports the idea, but estimates his office would need to spend an additional $50,000 for staffing costs.
“Especially in rural Colorado, money is very tight in this post-COVD-19 time period,” Champagne said. “And many of our counties can’t afford an extra burden like this without some support from the Legislature.”
A version of the bond-hearing legislation introduced last year, but which didn’t move forward because of the coronavirus pandemic, included $3 million in grant funding for counties to implement the requirements.
HB 1280 would require a bond hearing be held “as soon as practicable,” but no later than 48 hours after a person arrives to a detention center. There would be exceptions for emergencies forcing courts to close, if a defendant refuses to appear in court or if the defendant has a debilitating physical ailment, is intoxicated or unable to proceed because of mental illness.
The bill also would:
Eliminate requirements that bail be paid in a defendants’ name, so family and third parties can also make payments.Require defendants be released no later than six hours after posting bail, and require agencies to document the reason for delays.Based on existing weekend and holiday caseloads, the cost to the state of implementing the legislation is expected to be $577,410 in the next fiscal year, which starts in July. That would pay for increased staffing, operational costs and streaming services in the Judicial Department and increased costs for the State Public Defender’s Office, according to a fiscal analysis by nonpartisan legislative staff members.
The following fiscal year, the first year that state bond hearing officers would be fully implemented, the cost would be $1.15 million annually.
Nonpartisan staff members estimate the annual cost for rural district attorneys between $20,000 to $25,000 a year, or up to $45,000 if the district covers multiple counties.
Still, Gorman with the Colorado Criminal Defense Bar argues the bill would bring some uniformity to the standards by which people who are accused of crimes are treated.
“Otherwise, you’re going to have justice by geography, and it’s going to depend on what county you’re in,” Gorman said. “We’ve seen a lot of technology and innovation during the pandemic that has shown we’re able to do things better, and more efficiently.”
HB1280 is scheduled to be debated for the first time Wednesday in the House Judiciary Committee.