Colorado Proposition 102

Colorado Proposition 102 makes it harder to be released pending trial when you are arrested in Colorado.

It is supported by the bail bond industry. It is opposed by District Attorneys in Colorado. It would increase spending on local jails by about $2.8 million per year, which would have to come from tax increases or cuts to other local government spending. It will also increase future jail construction costs.

Specifically, Colorado Proposition 102 asks voters to amend the Colorado statutes to prohibit the release of anyone arrested for a felony or violent misdemeanor, and anyone who is a repeat nonviolent misdemeanor offender on a unsecured bond under the supervision of pretrial services.

A secured bond means that the defendant pays money to the court as security for showing up at trial. Most defendants can't come up with the entire amount, so, instead, they go to a bail bondsman who takes a 10% non-refundable fee, posts the bond, and finding guarantors or collateral like a house. They bail bondsman then tries to make sure that the defendants show up to court, with bounty hunters, if necessary. In an unsecured bond, the bond amount is a fine incurred for failing to appear in court.

There has been controversy recently in Denver over bail bondsmen avoiding having to pay bond, despite the fact that defendants don't show up in court.

The measure would increase the average stay in jail for someone facing criminal charges by about eight days while they attempt to obtain a secured bond, and about 30% of defendants are indigent and forced to stay in jail until their trial.

You should vote no on Proposition 102.

Releasing defendants to pre-trial services on unsecured bonds was one of the major advances of empirical legal studies in the 1960s, starting by a Vera Institute study that started the ball rolling. It was one of most effective criminal justice reforms adopted.

You see, it turns out that defendants released on a secured bond from a bail bonding company are no more likely to show up for trial than defendants who are released on an unsecured bond after being identified by pre-trial services as low risk and monitored by pre-trial services until trial. Economic theory be damned, in real life, the difference between a secured and unsecured bond for the same offender has virtually no impact on the likelihood of an offender to show up at court. Instead, low cost bureaucracy, like phone calls the day before and morning of trial, and arranged transpiration to court, are much more important factors.

But, keeping defendants in jail is expensive to the state and counterproductive. Defendants kept in jail pending trial are often sentenced to "time served." And, a serve the sentence first, and hold the trial second approach, while it increases the guilty plea rate a great deal, is mockery of due process.

If a defendant is found innocent at trial, he gets no compensation for the fact that he was incarcerated or for any attorneys' fees incurred in his defense. When a guilty plea to time served is offered, it is simply a matter of reputation at that point, and a risk of being given a longer sentence for having the audacity to seek to have a court determine your guilt.

Also, after spending time in jail that is often longer than defendants would have served if they posted bond and then were found guilty and sentenced, defendants have often lost their jobs, weakened their ties to the community, and developed contacts with more criminals, making them more of a threat to the public after they are released than they were when they were arrested. Often a defendant's likelihood of recidivism would be lower if he were released on an unsecured bond and then sentenced to probation, keeping him employed and with stronger ties to the community, and reducing his opportunities to network with criminals.

No one denies that some criminal defendants are a threat to the public or a flight risk and need to be incarcerated pending trial. But, those individuals aren't offered unsecured bonds by pre-trial services.

No other country in the world routine detains poor people (but not affluent people) who are low flight risks, pending trial.

Essentially, Colorado Proposition 102 asks voters to take a step backward from an approach to pre-trial incarceration that has been empirically proven to work just as well as the bail bond system, at a lower cost to the public while reducing recidivism, in favor of a system that is more expensive for both the taxpayer and criminal defendants and increases the risk of recidivism in order to benefit bail bondsmen whose lobbyists got the measure on the ballot and are supporting it.

That is why even the law and order District Attorneys oppose the measure.

This is bad policy and you should vote no on Colorado Proposition 102 in the 2010 election in Colorado.

UPDATE: Proposition 102 supporters, like one in my comment thread below, argue that bail bonds save money by reducing pre-trial monitoring costs. Is this true? No. Denver's recent experience is typical:

17,000 days in jail. That's how many bed days were saved last year by the enhanced Pretrial Release program funded by the Crime Prevention and Control Commission. At a cost of just over $160,000, the program eliminates the need for over 50 beds per year, saving about $60,000 in construction costs and $22,000 in operating costs per bed.

The Pretrial Release program reviews the status of individual inmates to determine who can be released on bonds while they await trial. Denver County Court refers inmates who are judged to be safe to the Pretrial Release program. If this program determines that an inmate is judged safe enough to be in the community, they will be placed on a "personal recognizance bond" which often requires a monetary deposit, an electronic monitor and other safety precautions. So far the program has a success rate of over 82%.

Pretrial release programs in Denver cost $160,000 a year. They reduced the operating costs at the Denver Jail by $1,100,000 a year. Ignoring any impact on construction costs (which Denver has incurred whether it needs the beds or not for the foreseeable future), pre-trail release saves taxpayers about $6.88 for every dollar of program costs.

The 82% success rate is comparable to that of defendants on bail bonds. Industry supporters claim that: "We return 85 to 90 percent of all defendants in which we bond to the court system." But, this statistic would include not just defendants who appear in court, but also, defendants who fail to appear and then are brought back to court later on.

A similar program in Manhattan saved taxpayers more than three dollars for every dollar spent on the program. Pre-trial release evaluations take about an hour per case. In the large percentage of cases where it is found to be appropriate, this is far less than the cost of incarcerating that person, even briefly while they are seeking a secured bond.

A program in Lee County, Florida not only saved much more money than the pre-trial release program costs, but also reduced the failure to appear rate from 18% before the program was established to 8% after it was put in place.

A recent program in Broward County, Florida saved $20 million and eliminated the need for a new jail.

The U.S. District Court for the Southern District of Iowa has also recently implemented a pre-trial release program with great success. The program produced impressive results in just two years of implementation, saving $1.7 million, making pre-trial release more frequent, and reducing failure to appear rates and pre-trial new criminal activity:

[T]he Southern District of Iowa was able to substantially increase the utilization of alternatives to detention resulting in a pretrial release rate increase of 15% while assuring court appearance and community safety. In fact, the increased pretrial release rate was accompanied by an increase in court appearance rate by 2.6% and decreases in both new alleged criminal activity rate (1.7% decrease) and revocations due to technical violations (2.8% decrease) for defendants released pending trial.

This is also true closer to home. In Larimer County, Colorado (home to Fort Collins), in 2007, "the rate of defendants failing to appear for court appearances is less than 2 percent for the pretrial program compared with 12.6 percent for bond agents." The budget for Larimer County's pre-trial release program is "$974,000 from the county general fund and $75,000 in client fees," while the program "saved the county $3.5 million last year by facilitating the release and supervision of arrestees who otherwise would be occupying costly jail cells. And . . . the pretrial service resulted in an additional $474,000 savings by working with the probation department to streamline the sentencing process." Thus, pre-trial services in Larimer, County, Colorado saves 4 dollars in taxpayer costs for every dollar it spends, and has a much lower failure to appear rate than defendants on bail bonds. Larimer County elected officials oppose Colorado Proposition 102.

Overall, a 2008 study found that Colorado's pre-trial release programs have some of the lowest failure to appear (averaging under 5%) and re-arrest rates (averaging under 1%) of any programs of this kind in the country, and some of the lowest operating costs. They are "very well regarded by law enforcement, prosecution, and the courts in the jurisdictions they serve." They serve 80% of the population in Colorado.

Jefferson County, Colorado used reductions in incarceration as a result of pre-trial services work to make its jail available to other jurisdictions as a profit center, and its program staff have secured substantial grants to provide its services at below cost, and has returned some budgeted funds to the county general fund.

Even the elected sheriff in conservative El Paso County, which doesn't have a pre-trial release program, opposes Colorado Proposition 102 and thinks it might be constitutionally flawed:

El Paso County currently does not use pre-trial release. Nevertheless, Sheriff Terry Maketa says [Colorado Proposition 102] could harm poorer defendants who couldn't post bail.

"It's going to affect our mentally ill population, it's going to affect our indigent population," Maketa said. "In fact, I think it creates such a disparity between people that are indigent and those that are not that it could have some legal challenges."

Similarly:

"This isn't about fighting crime," says Arapahoe County Sheriff Grayson Robinson. "This in my mind only benefits the for-profit bond industry in Colorado."

Mesa County, home to Grand Junction, Colorado, on the Western Slope, has had success using pre-trial release. The Sheriff's Office website notes that: "Beginning January 2003 we began an innovative approach in trying to reduce jail population. The goal was not just to reduce the population, instead to ensure that the right types of people were incarcerated. We began focusing on the Pre-trial and sentenced inmate population."

Douglas County, Colorado, which is a suburban county to the South of Denver and North of Colorado springs, has a pre-trial release program in which the failure to appear rate in 2008 for 499 felony case and 659 misdemeanor cases was just 3%.

It turns out that the quality of pre-trial release program effectiveness has a lot to do with how well its fits best practices in the field. "The county level models indicate that there is surprisingly robust explanatory capacity for the county level variables on failure to appear and rearrest." Well run programs like Colorado's, that adhere to best practices nationally and work to constantly improve their release models, are far more effective than the national average at a highly statistically significant level.

Data arguing that pre-trial release programs are ineffectual often use flawed data, for example, lumping defendants who were not required to post bail or participate in a pre-trial release supervision program with those who were in a pre-trial release supervision program. These apples to oranges comparisons obscure the effectiveness of programs like those in place in Colorado, where the program is particularly well run, and empirically validated instruments are used to determine who should be eligible for release on a personal recognizance bond, rather than mere intuition.

The instruments that pre-trial release agencies use to score criminal defendants and determine if they are appropriate to release before trial without a secured bond don't allow just anyone to be released before trial. Regular studies of how is and is not likely to fail to appear, or to re-offend prior to trial are carried out. The data show that the offense charged and someone's prior record does matter, and that does enter into the assessment. But, ties to the community also have a dramatic impact on the likelihood that someone will fail to appear.

In the absence of pre-trial release programs, courtroom demeanor is a major factor in making bail decisions, despite the fact that studies have failed to show that courtroom demeanor has a close relationship to future failure to appear rates or reoffense pending trial rates.

A typical risk assessment instrument, such as one used in Racine County, New York, assigns points to each criminal defendant facing trial based on a variety of factors. Points are assigned for the following circumstances that result in a total score of 0-14 points:

Most serious charge is less serious than Misdemeanor or Felony Add 0 points
Most serious charge is a Misdemeanor Add 1 point
Most serious charge is a Felony Add 2 points
Charges include a drug offense (felony or misdemeanor) Add 2 points
Defendant has a prior conviction Add 2 points
Defendant has 2 or more prior convictions Add 1 point
Defendant has a prior failure to appear Add 2 points
Defendant has a prior arrest/charge while on bail Add 1 point
Defendant has not been employed the past 2 years Add 2 points
Defendant is not the primary care giver Add 1 point
Defendant has not lived at the residence for a year or longer Add 1 point

A score of 0-4 points is low risk, 5-9 points is medium risk and 10-14 points is high risk.

The impact of the nature of the offense on the risk that someone poses, as demonstrated by experience, is sometimes counterintuitive. For example, "being charged with a felony against a person – decreased the odds of a defendant committing pretrial crime and of failing to appear in court." High risk offenders aren't granted the option of pre-trial release without a secured bond. But, experience has shown that someone charged with a violent felony who has no prior criminal record, owns a home, has a job, and has strong ties to the community is much more likely to show up in court, and to not reoffend pending trial, than someone charged with relatively minor offenses who has little to tie him to the community.

In places where these risk assessments are used, like Racine County, pre-trial release failures are similar to those in Colorado, about 5%, and far lower than the national average.

The empirically validated risk assessments done by pre-trial release programs aren't just used to determine who should be released without a secured bond program prior to trial either. They are also used by judges to set bail appropriately in cases where a secured bond will be required, and to determine whether defendants will be eligible for probation if convicted. Requiring a secured bond doesn't help enforce compliance if the bond is set too low, and the pre-trial release assessment instrument helps judges to set that amount appropriately. So, it makes the system work better for defendants who are required to obtain bail bonds as well.

And, the savings to taxpayers aren't the whole story. The pretrial release program also allows thousands of criminal defendants to escape the need to pay bail bond fees, allowed hundreds of criminal defendants to be free pending trial, and helped many of these defendants hold onto jobs they otherwise would have lost. As a result of pre-trial release, the accused are punished after they are found guilty and only if they are guilty, not before they are found guilty or are acquitted.

UPDATE TWO:

Who sponsored Colorado Proposition 102?

* Proponents of Prop 102 are Matthew Duran, formerly of the Virginians for the Preservation of Bail, and Mike Donovan, currently employed by Pennsylvania-based Bail USA.
* Proponents had to pay protestors in Grand Junction to support their cause.

Who's opposed to Colorado Proposition 102?

The bipartisan list includes:

* Governor Bill Ritter
* Attorney General John Suthers (Republican candidate in Colorado AG race)
* District Attorney Stan Garnett (Democratic candidate in Colorado AG race)
* Boulder County Commissioners
* Jefferson County Commissioners
* Larimer County Commissioners
* Weld County Commissioners
* Colorado District Attorney’s Council
* County Sheriffs of Colorado
* Colorado Association of Chiefs of Police
* Colorado Coalition Against Domestic Violence
* Colorado Coalition Against Sexual Assault
* Colorado Commission on Criminal and Juvenile Justice
* Colorado Fiscal Policy Institute
* Colorado Organization for Victim Assistance
* Grand Junction Sentinel
* The Pueblo Chieftan
* The Durango Herald
* The Denver Post