get the facts on SB21-062:
A Response to the Opposition
The primary opposition to SB21-062 is a group of Colorado police department chiefs and a sheriff who released a joint statement that they have been widely circulating: “Chiefs and Sheriff Oppose SB21-062.” This statement is verifiably false.
A response to the statement from the bill’s author, Senator Pete Lee, is here. Below is a point-by-point response to the the joint statement.
#1
“The current judicial process allows law enforcement the ability to jail individuals who have perpetrated crimes in our jurisdictions and routinely victimize additional people while awaiting the criminal justice process… This legislation eliminates that judicial review process and mandates an arrestee’s release immediately, prior to judicial review or bond setting, for every crime except the most serious felony offenses – class 1, 2, and 3.”
FALSE.
While it is true that serious felonies (class 1, 2, and 3) are exempt from SB21-062, it is not true that law enforcement cannot arrest or jail people who commit lower level felonies (class 4, 5, and 6), or misdemeanors that fall under the broad list of Victims Rights Act crimes. For these lower level felonies and victims crimes, law enforcement have the option to arrest and jail ANYONE they deem a threat to the safety of another, or who they believe would continue criminal conduct if released. Further, all crimes where arrest is mandated by law (such as domestic violence crimes) are also exempt.
It seems the chiefs and sheriff stopped reading the bill right before the word “unless”:
From the bill (p. 3, line 12-p. 4, line 8):
The bill prohibits a peace officer from arresting a person based solely on the alleged commission of a traffic offense; petty offense; municipal offense; misdemeanor offense; a class 4, 5, or 6 felony; or a level 3 or 4 drug felony unless:
A custodial arrest is statutorily required;
The officer is unable to sufficiently verify the individual's identity absent a custodial arrest;
The person was convicted for a violation of section 42-4-1301, Colorado Revised Statutes, in the previous 12 months; or
The offense is a felony or a victims' rights crime, the offense includes an element of illegal possession or use of firearm, the offense constitutes unlawful sexual behavior, or the offense is a violation a temporary or regular extreme risk protection order, a violation of a credible threat to a school, or a violation of eluding in a vehicle and:
The arresting officer records in the arrest documents a reasonable suspicion to conclude the person poses a threat to the safety of another, absent custodial arrest; or
The arresting officer records in the arrest documents a reasonable suspicion to conclude the person has indicated a clear unwillingness to cease and desist in criminal behavior, absent custodial arrest.
#2
“This legislation eliminates that judicial review process and mandates an arrestee’s release immediately, prior to judicial review or bond setting, for every crime except the most serious felony offenses – class 1, 2, and 3. In addition, existing constitutional rights protect the victim and the offender with bond processes which utilize multiple factors as decided by a judge after an offender is jailed. Assurances of a fair and appropriate process are maintained through a judge’s review.”
FALSE.
Nothing in SB21-062 allows or requires law enforcement to release an arrested person prior to judicial review. And the bill maintains judicial discretion to set money bond in ANY case – regardless of offense –whenever there is a safety risk or a flight risk (p. 5, line 15-22). These are the “twin pillars” of pretrial detention recognized by the U.S. Supreme Court.
Money bond is not supposed to be used as punishment, and it’s not supposed to be used to keep poor people in jail while people with means under the same circumstances could gain their freedom. That’s why a growing number of state supreme courts have found cash bail unconstitutional unless the person is considered dangerous or a flight risk. Read more here and here.
But let’s talk about the claim that our current system in the state of Colorado assures a fair and appropriate process for a person who gets arrested. 62% of Coloradans in jails aren’t even convicted of a crime — they simply can’t afford bail. This flies in the face of the presumption of innocence that is one of the most sacred principles in the American criminal justice system. It is a criminalization of poverty, and it creates a two-tier system of justice – one for those who can afford to pay for their freedom and another, far harsher and more destabilizing, for those who cannot.
Even if a person who is held pretrial is eventually exonerated, the economic and personal costs of pretrial incarceration are often significant—and those costs are disproportionately levied on the poor and people of color. Read more here and here. Further, people who face going to jail pretrial are at a severe disadvantage when presented with an offer of a plea bargain. As a result, people plead guilty to crimes they did not commit in order to avoid being locked up.
The data shows that people who are arrested and detained pretrial have significantly worse outcomes than those who have the financial resources to bond out of jail. The charges brought against them are more severe, they are more likely to be found guilty, and their sentences are longer when compared with people who are arrested for similar crimes who have the means to purchase their freedom. Read more here. This is hardly “fair”, and it is something that SB21-062 seeks to address. Read more about Coloradans harmed by our cash bail system.
#3
“should a defendant fail to appear in court, a warrant with a bond for failing to appear may only be set by a judge if a victim has been issued a subpoena or an officer is present for that case. Otherwise, a judge may not issue a warrant with a bond attached.”
FALSE.
Under SB21-062, judges can continue the pre-COVID practice of issuing an arrest warrant on the very first failure to appear. The bill only limits a judge from setting money bond that may hold a poor person in jail for an extended time due to simple failure to appear. In order to prioritize victim concerns, the bill allows money bond (and pretrial detention) for any failure to appear whenever a victim or witness's time is wasted, or when the failure to appear serves to deter victim or witness participation.
As a result of this protection being added during the stakeholder process, the victims advocacy group Colorado Crime Survivors Network supports SB21-062 and all other victim groups are neutral on the bill. Learn more about who supports SB21-062.
#4
“The COVID 19 jail restrictions implemented over the past year which frees all suspects of significant felony offenses (class 4 or lower) and all misdemeanor offenses on a summons without judicial review is being offered as a permanent solution through this legislation.”
FALSE.
SB21-062 is NOT the same as the COVID-19 jail admission restrictions. It adopts only a very narrow subset of those restrictions, based on a thorough assessment of the best practices and lessons learned during the time that the COVID jail depopulation strategies have been in place.
During eight months of stakeholder meetings, the bill’s sponsors explored what worked and what did not work during COVID jail depopulation. For instance, they heard from sheriffs and district attorneys that blocking admission of arrests on warrants, and the inability to arrest people for repeat auto theft were serious problems with the COVID-era policies, so they did not adopt those restrictions.
As a result, the bill does not limit warrant-based arrests, and it allows for warrantless arrests for any felonies or victim crimes whenever there is a concern about future criminal conduct.
#5
“Examples of crimes mandated to be released are auto theft, residential and business burglaries, Possession of a Weapon by a previous offender, arson and all misdemeanor offenses including violent offenses like assault.”
FALSE.
SB21-062 limits mandatory summons to low-level, nonviolent crimes only. All Victim Rights Act crimes, all felonies, and all weapons offenses are arrestable whenever there is a safety threat or a concern of repeat offense. Moreover, judges continue to have the option to issue money bond for any offense when there is a safety risk or a flight risk.
If the Chiefs and Sheriff’s allegations were true, every victim group in the state would be opposed to this bill. But none are. Learn more about who supports SB21-062.
#6
“In many cases, we can demonstrate jailing an individual suspected of committing such crimes disrupts continued patterns of repeat criminal behavior. Ongoing COVID jail restrictions which are now being proposed as permanent in this legislation prohibit our ability to disrupt this ongoing criminal behavior by mandating immediate release of offenders without holding an offender for jail, judicial review and bond setting.”
FALSE.
Again, SB21-062 adopts only a very narrow subset of the existing COVID jail admission restrictions. Again, for all low level felonies and Victim’s Rights Act crimes, law enforcement has the broad latitude to arrest and jail anyone who they suspect would continue to offend if not jailed.
Again, the bill in no way limits warrant-based arrests, and it allows for warrantless arrests for any felonies or victim crimes whenever there is a concern about repeat criminal conduct. And unlike current COVID jail admission standards, the bill allows for arrests for failure to appear and failure to comply with bond conditions
#7
“Current COVID jail restrictions sought to be made permanent with this legislation have manifested into an overwhelming increase in motor vehicle theft, business and residential burglaries, previous offenders possessing firearms and many other crimes in every one of our jurisdictions.
Examples often include individuals repeating multiple felony crimes within days of being arrested and not jailed because of current jail restrictions.
Many of these offenders already have numerous additional warrants for their arrest for prior criminal behavior (including failure to appear warrants) and lengthy criminal histories. Jail restrictions currently in place and proposed as permanent with this legislation, prohibit the jailing of these individuals.”
FALSE.
Again, SB21-062 adopts only a very narrow subset of the existing COVID jail admission restrictions, and this repeated false equivalence is misleading at best. It is in fact inexcusable for professional law enforcement officers in leadership of police departments to assert an example of “individuals repeating multiple felony crimes within days of being arrested and not jailed” as something that SB21-062 would allow for, when any good faith reading of the bill shows this immediately to be false.
Again, high level felonies are excluded from the bill, and for all low level felonies and Victim’s Rights Act crimes law enforcement has the broad latitude to arrest and jail anyone they deem to be a safety risk to another person, or who they suspect would continue to offend if not jailed (p. 3, line 12-p. 4, line 8).
Further, Colorado’s own data shows no correlation between the extent a county reduced its jail population and the change in crime in that county, as illustrated by the graph below.
Douglas County and Larimer County are an illustrative example - the two counties had similar decreases in jail population (24% and 18% respectively) and overall crime increased by 11% in Douglas County and decreased by 13% in Larimer County. Similarly, El Paso County and Arapahoe County had similar decreases in jail population (36% and 40% respectively) and overall crime decreased by 2% in El Paso County and increased by 9% in Arapahoe County.
There are a great many reasons why cities and counties throughout the state of Colorado may have had increases in certain crimes during the COVID crisis, but the data clearly shows that jail depopulation in and of itself does not have a measured association with crime rates. And there is a great deal of nationwide data that suggest placing strategic, careful, data-driven limitations on arresting people for low-level crimes actually results in a significant decrease in the rate of violent crime.
#8
“This bill focuses on freeing the individual committing the crime without judicial review and does not consider the tremendous impact it will have on our communities. We are alarmed about the long term damage that will result from this legislation.”
FALSE.
SB21-062 was written expressly for the positive impact it will have on communities by keeping people (including presumptively innocent people who have no business being in jail) from being swept up into the carceral system that will destabilize their lives and their communities. Read more from the bill’s sponsor Pete Lee.
Again, SB21-62 allows arrests on ANY felony and ANY victim crime whenever there is a safety risk or a risk of repeat offenses. Nothing in the bill allows or contemplates release of an arrested person prior to judicial review.
The bill maintains judicial discretion to set money bond in ANY case – regardless of offense –whenever there is a safety risk or a flight risk, which are the twin pillars of constitutional pretrial detention recognized by the US Supreme Court (p. 5, lines 15-22).
#9
“As leaders of these law enforcement agencies we base our opposition first and foremost on behalf of those already victimized and secondly for potential additional victims.”
FALSE.
When SB21-062 went in front of the Senate Judiciary Committee, over the course of more than 5 hours of public testimony where many individual crime victims testified, no victims testified in opposition to the bill. All were in support.
The police chiefs and sheriff who have signed on to this statement are using the false assertion that they speak for crime victims, or that a majority of crime victims would be opposed to this measure, in order to protect their own power. Read more about crime victims who support SB21-062.
#10
“We encourage all citizens to research this legislation to understand the personal and community impact.”
FALSE.
WE AGREE! We encourage all citizens to READ THE BILL and check the frequently asked questions and see for themselves how the claims these police chiefs and sheriff are making are either based on a complete misreading of the bill, or are made in bad faith because they are opposed to any changes or checks on their authority. If anyone has any questions or concerns about the bill, please reach out to us and we will get those questions answered – with facts, not fear-based hyperbole
#11
“The current judicial process allows for officers to place suspects in jail when accused of crimes and to be held for bonds in the appropriate circumstances. These temporary incarcerations are supported with documentation which is reviewed by a judge shortly after the incarceration to support holding the suspects or releasing them on bond after judicial review.”
response.
It is not “appropriate” for one person suspected of a crime to be held in jail pretrial because they cannot afford to pay their bond while another person with financial resources suspected of the same crime walks free. The current process has led to the United States having the highest incarceration rate in the world.
Jail populations in Colorado have increased 800% since the 1970s, driven mostly by growth in the number of people detained pretrial. 60% of people incarcerated in jails are stuck there because they cannot afford to pay their money bond, and jails overflow with people who are there not because they are a safety risk, but because they struggle with substance abuse, mental illness, and/or poverty.
The question we should all be asking is, why do these police chiefs and this sheriff seek to keep this grossly unfair system in place?
#12
“Holding offenders accountable immediately and ensuring they cannot continue committing crimes interrupts criminal behavior. This legislation would remove the ability to interrupt that behavior.”
Response.
It is not the role of police to hold a person accused of a crime accountable – that is a judge’s job. Punishment and accountability are post-conviction concepts, and don’t belong in the pretrial analysis.
Under SB21-062 law enforcement officers would have broad latitude to arrest and jail anyone for low level felonies and Victim’s Rights Act crimes if they suspect the person would continue to offend if not jailed. Again, the bill in no way limits warrant-based arrests, and it allows for warrantless arrests for any felonies or victim crimes whenever there is a concern about repeat criminal conduct.
There is growing evidence that jailing people for low level crimes actually INCREASES the overall crime rate. A recent study out of Massachusetts and another out of New York confirms that jailing and prosecuting people for low-level offenses increases recidivism. Suffolk County District Attorney Rollins (Boston and surrounding areas) explained well:
“When we are compassionate and allow them to go on with their lives ... they often don't come back into contact with the criminal legal system and we are safer as a result of that.”
SB21-062 is not just a harm reduction bill for people accused of low level crimes who are released pretrial while they resolve their cases, it is also a public safety bill.
#13
“This legislation would allow offenders who commit common crimes in our neighborhoods like auto theft, burglary, theft from vehicles, weapons offenses, arson and violent misdemeanor offenses to be released after arrest and booking without behavioral conditions being established for their release by a judge after being jailed.”
False.
SB21-062 maintains a judge’s discretion to set money bond in ANY case – regardless of offense – whenever there is a safety risk or a flight risk. Nothing in the bill limits a judge’s ability to set behavior conditions of release, or allows or contemplates release of an arrested person prior to judicial review.
The supporters of SB21-062 would welcome a good faith discussion with opponents about what this bill actually would do. But this statement from the police chiefs and sheriff is not that.
You can email leaders asking them to remove this statement from city channels here
Further Reading
‘Justice Denied: The Harmful and Lasting Effects of Pretrial Detention’ by Léon Digard, Senior Research Editor, and Elizabeth Swavola, Program Manager, Vera Institute of Justice, 2019.
‘How Cash Bail Creates A Two-Tiered System of Justice’ by Kaitlin Koga, Chief of Staff, The Bail Project, Yale Insights, 2020.
‘Incarceration Trends in Colorado,’ by Jacob Kang-Brown, Senior Research Associate, Vera Institute of Justice, 2019
‘Not Prosecuting Low Level Crimes Leads to Less Crime in Suffolk County, Research Finds’ by Ally Jarmanning, WBUR News, 2021
‘Every Three Seconds: Unlocking Police Data on Arrests,’ by Rebecca Neusteter and Megan O’Toole, Vera Institute of Justice, 2019
