Against Municipal Courts In Colorado

The Denver Post has an article highlighting the problems of having municipal courts not of record incarcerate people who aren't represented by lawyers with no record of the proceedings, and notes that a bill this session seeks to change that. The bill is HB26-1134:

Fairness & Transparency in Municipal Court: Concerning measures to ensure that municipal court defendants are subject to conditions similar to state court defendants.

The bill clarifies that municipal court defendants have a right to counsel and that municipal defense counsel have the same notice, case information, and opportunity to meet with their clients as do state-level defense counsel. Current law prohibits paying indigent municipal defense counsel on a fixed or flat-fee payment structure if the municipality prosecutes domestic violence cases. The bill applies the prohibition to all municipalities.

All municipal court proceedings are required to be open to public observation. Virtual observation is required for all in-custody proceedings, and prompt resolution of municipal cases is required.

Last year, the Colorado Supreme Court ruled that municipalities with ordinances that parallel state crimes can't have higher penalties than the state crimes, in the wake of the state legislature reducing penalties for misdemeanors, and in the wake of Governor Polis vetoing a bill that would have mandated the same result.

A different bill last legislative session addressed the problem with municipal court judges abusing failure to appear warrants in a way that led to disproportionately harsh punishments.

None of these bills address yet another problem with the municipal court system, which is that municipal court judges are not nearly as independent of the municipal legislative bodies as state court judges are because they are appointed by the Governor in a merit based system that makes state court's independent of local governments (except for Denver County Court which is quasi-municipal).

Municipal courts also leave people arrested languishing in jail for longer than the U.S. Constitution allows because they hold court less frequently than state courts.

The simple and best solution would be to abolish municipal courts entirely and to give county court's jurisdiction over ordinance violations (which could still be prosecuted by City attorneys). 

Perhaps parking violations could be made administrative proceedings of municipalities limited to fines, boot, and tow orders instead of municipal violations.

The Public Understanding Of Felony Murder In Colorado

Felony murder is a concept that I've considered unjust since I learned about it in law school. Colorado recently downgraded felony murder from a first degree felony (automatic life in prison and previously death penalty eligibility) to a second degree felony (a very long term of years sentence), and has modestly increases the exceptions to the felony murder rule. But it doesn't influence the conduct of criminals, because they have no idea that this is the law, and the public doesn't consider this to be a just punishment in cases where this is the sole basis for  murder conviction.

With funds provided by a Hughes Pilot grant, I conducted a survey of 523 Colorado residents to determine their knowledge of and moral attitudes towards the felony murder rule. The survey showed that only a very small fraction of the participants knew that unintended killings in the course of predicate felonies was murder punishable at the time by life without the possibility of parole. Similarly, only a very small fraction of survey participants believed that persons who committed unintended killings in the course of predicate felonies deserved a murder conviction or sentence of mandatory life without the possibility of parole. Rather, the mean sentence that survey participants considered just for felony murder was just over six years in prison. These results substantially undercut the two main justifications given for felony murder, namely deterrence and retribution.

Ian Farrell, "Moral Judgments and Knowledge about Felony Murder in Colorado: An Empirical Study" SSRN (2023).

Solitary Confinement

About 4-5% of people in prison at any one time in the U.S. are in solitary confinement, about half of a percent of people in prison have been in solitary confinement for more than a year, and about one in a thousand people in prison have been in solitary confinement for a decade or more.

Colorado uses this form of punishment only very rarely.

In a new report spearheaded by Yale Law School, the number of prisoners subjected to “restrictive housing”, as solitary is officially known, stood at between 41,000 and 48,000 in the summer of 2021. They were being held alone in cells the size of parking spaces, for 22 hours a day on average and for at least 15 days.

Within that number, more than 6,000 prisoners have been held in isolation for over a year. They include almost a thousand people who have been held on their own in potentially damaging confined spaces for a decade or longer....

The new solitary study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, extrapolates its findings from the reported figures of 34 states and the Federal Bureau of Prisons. Though it finds that levels of solitary remain shockingly high, it also stresses that the figures are moving in the right direction.

When the researchers began the series of annual snapshots in 2014 the number of prisoners trapped in isolation was almost twice today’s level, at between 80,000 to 100,000. Since then the graph has steadily declined, with a growing number of states introducing new laws to restrict or even ban the practice.

From here. 

Periods of more than ten years of solitary confinement were predominantly in Texas, Alabama, the federal Bureau of Prisons, and Nevada, with Idaho, Tennessee, Wisconsin, Washington, New Hampshire, and Connecticut having one to seven inmates in solitary confinement for that duration each. 

Colorado had no one who has been in solitary confinement for more than 29 days.

Colorado Prohibits Criminal Restitution Liability For Dismissed Conduct

For what conduct can restitution be imposed by a criminal court in connection with a plea bargain that dismisses some charges against a defendant.

According to a ruling of the Colorado Supreme Court today:

a sentencing court may not impose restitution for pecuniary losses proximately caused by conduct exclusively related to dismissed charges.

It reached this decision as a matter of statutory interpretation of Colorado laws, rather than as a matter of constitutional law. 

This differs from the rule in federal courts which allows criminal courts to impose sentences based, in part, upon acquitted, dismissed, or uncharged conduct, so long as the sentence as a whole does not exceed the sentence authorized by a jury verdict or a plea of guilty to a charge. 

The Colorado Supreme Court also interpreted the meaning of the deadline for restitution orders, clarifying which deadlines apply to the date that the orders are entered by the court (absent a showing of good cause for delay) and which apply to the date that this relief may be requested by prosecutors.

Colorado Reforms Felony Murder Statute

This statute is an improvement relative to the status quo, although it is still quite harsh in cases  of intermediate culpability. 

Colorado has loosened the sentencing standard for people convicted of being present for but not actually responsible for a killing, bringing it down from an automatic sentence of life without parole to a sentence of between 16 and 48 years in prison.

Gov. Jared Polis on Monday signed into law SB21-124, a bill that he said ensures the “punishment fits the crime.”

“The person who did the murder should do the most time,” Polis said. “If you’re standing there, you are guilty. This keeps that. … (But) you’re not in jail as long as someone who pulled the trigger, or stabbed a person.”

This new law doesn’t apply to past cases and won’t take effect in courts until Sept. 15.

Via the Denver Post. 

A safety valve provision for individuals with particularly little culpability, and an exclusion for deaths of co-conspirators, had already been part of the prior law.

18-3-103. Murder in the second degree - definitions. (1) A person commits the crime of murder in the second degree if: 

(a) The person knowingly causes the death of a person; OR 

(b) ACTING EITHER ALONE OR WITH ONE OR MORE PERSONS, HE OR SHE COMMITS OR ATTEMPTS TO COMMIT FELONY ARSON, ROBBERY, BURGLARY, KIDNAPPING, SEXUAL ASSAULT AS PROHIBITED BY SECTION 18-3-402, SEXUAL ASSAULT IN THE FIRST OR SECOND DEGREE AS PROHIBITED BY SECTION 18-3-402 OR 18-3-403 AS THOSE SECTIONS EXISTED PRIOR TO JULY 1, 2000, OR A CLASS 3 FELONY FOR SEXUAL ASSAULT ON A CHILD AS PROVIDED IN SECTION 18-3-405 (2), OR THE FELONY CRIME OF ESCAPE AS PROVIDED IN SECTION 18-8-208, AND, IN THE COURSE OF OR IN FURTHERANCE OF THE CRIME THAT HE OR SHE IS COMMITTING OR ATTEMPTING TO COMMIT, OR OF IMMEDIATE FLIGHT THEREFROM, THE DEATH OF A PERSON, OTHER THAN ONE OF THE PARTICIPANTS, IS CAUSED BY ANY PARTICIPANT. 

(1.5) IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE OF VIOLATING SUBSECTION (1)(b) OF THIS SECTION THAT THE DEFENDANT: 

(a) WAS NOT THE ONLY PARTICIPANT IN THE UNDERLYING CRIME; AND 

(b) DID NOT COMMIT THE HOMICIDAL ACT OR IN ANY WAY SOLICIT, REQUEST, COMMAND, IMPORTUNE, CAUSE, OR AID THE COMMISSION THEREOF; AND 

(c) WAS NOT ARMED WITH A DEADLY WEAPON; AND 

(d) DID NOT ENGAGE HIMSELF OR HERSELF IN OR INTEND TO ENGAGE IN AND HAD NO REASONABLE GROUND TO BELIEVE THAT ANY OTHER PARTICIPANT INTENDED TO ENGAGE IN CONDUCT LIKELY TO RESULT IN DEATH OR SERIOUS BODILY INJURY.

The residual First Degree Murder statute now reads as follows:

Colorado Murder -In The First Degree (18-3-102)

A person commits the crime of murder in the first degree if:

(a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or

(c) By perjury or subornation of perjury he procures the conviction and execution of any innocent person; or

(d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another; or

(e) He or she commits unlawful distribution, dispensation, or sale of a controlled substance to a person under the age of eighteen years on school grounds as provided in section 18-18-407 (2), and the death of such person is caused by the use of such controlled substance; or

(f) The person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

As I read the statute, it also means that a triggerman in a murder committed during a felony does not automatically receive life in prison without parole, and will often qualify for a second degree murder charge, which is more lenient than the act has been described in the popular press as being, and could often secure a second degree murder charge.

Colorado has also abolished the death penalty for first degree murder under prior law. 

 

In Colorado, Jury Verdicts Bind Restitution Awards

In federal court, a sentencing court may consider acquitted or uncharged conduct in imposing a sentence. Colorado doesn't allow that in the case of restitution awards:

Applying the reasoning in Cowen v. People, 2018 CO 96, a division of the court of appeals holds that where a defendant is charged with one level of offense but is convicted of only a lower level offense, an award of restitution for the offense is limited to the amount consistent with the jury verdict.

From People v. Knapp, 2020COA107 (July 16, 2020) (official syllabus). 

Colorado Supreme Court Revised Cruel and Unusual Punishment Analysis

The Colorado Supreme Court in lead case Wells-Yates v. People, and companion cases People v. McRae and Melton v. People has substantially revised the framework in which cruel and unusual punishment allegations are evaluated, generally speaking, in the favor of criminal defendants, although not in an unqualified win.

Some people serving long sentences for minor drug crimes in Colorado will probably have those sentences reduced as a result of these decisions.

The practical effect of this is that severe habitual offender sentences, which were once almost never disturbed under the 8th Amendment, especially for drug crimes, may now have some hope of being overturned as disproportionate and cruel and unusual. 

The official syllabus of the lead case is a good starting point:

The court holds that: (1) during an abbreviated proportionality review of a habitual criminal sentence, the court must consider each triggering offense and the predicate offenses together and determine whether, in combination, they are so lacking in gravity or seriousness as to raise an inference that the sentence imposed on that triggering offense is grossly disproportionate; (2) in determining the gravity or seriousness of the triggering offense and the predicate offenses, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively; (3) not all narcotic offenses are per se grave or serious; and (4) the narcotic offenses of possession and possession with intent are not per se grave or serious. 

The most serious drug offenses (sale and distribution) remain per se grave and serious based upon the high intent threshold and high penalties remaining on the books. Theft is also held not to be "per se grave or serious" in the Melton v. People case.

The key facts in the lead case were as follows:

The prosecution charged Wells-Yates in 2012 with second degree burglary, conspiracy to commit second degree burglary, theft, possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), four counts of identity theft, and three habitual criminal counts. In February 2013, a jury found Wells-Yates guilty of all the substantive charges. Following a bench trial in May 2013, the court adjudicated her a habitual criminal based on three predicate offenses: 

• A 1996 conviction for possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), a class 3 felony; 

• a 1997 conviction for possession of 2 grams or less of a schedule II controlled substance (methamphetamine), a class 4 felony; and 

• a 1999 conviction for possession of 2 grams or less of a schedule II controlled substance (methamphetamine), a class 4 felony. 22 

The court subsequently conducted a sentencing hearing. For each of the eight triggering offenses, it imposed the statutorily required prison sentence—four times the maximum prison term in the presumptive range: 

• 48 years (12 × 4) on count 1, second degree burglary, a class 3 felony; 

• 24 years (6 × 4) on count 2, conspiracy to commit second degree burglary, a class 4 felony; 

• 24 years (6 × 4) on count 3, theft, a class 4 felony; 

• 48 years (12 × 4) on count 4, possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), a class 3 felony;9 and 

• 24 years (6 × 4) on each of the four class 4 felony counts of identity theft (counts 5, 6, 7, and 12). 

The court ordered all of the sentences, with the exception of the sentence on count 7, to be served concurrently. 

In total, Wells-Yates received an aggregate prison term of 72 years: 24 years on count 7, consecutive to all the other sentences. 

(The parties agree that the sentence on count 4 was incorrectly calculated; it should have been 64 years, not 48 years. Possession with intent to sell or distribute 7 grams or less of methamphetamine on the date charged in count 4 was an extraordinary risk class 3 felony, see § 18-1.3-401(10)(b)(XI), C.R.S. (2012); the maximum term of years in the presumptive range for such a felony is 16, not 12, years, see § 18-1.3-401(1)(a)(V)(A), C.R.S. (2019). Therefore, the trial court should have multiplied 16 × 4, not 12 × 4. The basis of count 7 was the sale of the identity documents during Wells-Yates’s first meeting with the agent; the sentence on that count was ordered to be served consecutive to all the other sentences. 23 (the longest of which were the 48-year concurrent sentences on counts 1 and 4).11 She is eligible for parole.) 

(Given the error regarding the sentence on count 4, the parties agree that Wells-Yates should have received an aggregate prison term of 88, not 72, years (24 + 64, instead of 24 + 48)).

The state legislature in Colorado has in recent years dramatically reduced the sentences for drug crimes in a non-retroactive way and this is what gives the ability to reconsider legislative changes that are not retroactive when evaluating proportionately so powerful.

If "Wells-Yates committed the triggering offense of possession with intent on or after October 1, 2013, instead of in 2012, she would have faced a prison sentence of 2 to 4 years, not a mandatory habitual criminal sentence of 64 years." 

The one point upon which criminal defendants do not prevail is that the Colorado Supreme Court holds that proportionality analysis needs to be conducted on charge by charge basis, rather than the aggregate sentence for all charges including whether sentences are to be served concurrently or consecutively. So, they do not consider the total 72 year combined sentence, but only the sentences for each particular offense.

The cases are remand to the trial courts to reconsidering in a much more fact specific way in the face of a much more favorable legal standard.

The prospects of success on remand for these defendants and similarly situated victims of old draconian drug war sentences seems good, although the remedy for an 8th Amendment violation is to reduce the sentence to the highest amount that would not be cruel or unusual, which is still high.

Decriminalization Of Simple Assault, Adultery And Promoting Sexual Immorality In Colorado

There are a some common law criminal offenses which have been decriminalized in Colorado.

Adultery

Until recently, adultery was a crime, even though there was no punishment that could be imposed for violating it. Before its repeal is read: 

Any sexual intercourse by a married person other than with that person's spouse is adultery, which is prohibited.

But, that crime has now been repealed by House Bill 2013-1166. This removed the ambiguity associated with having a crime that has no punishment, which was an outlier in the criminal code.

The language that was repealed, which effectively stated that adultery was decriminalized in Colorado, was probably adopted in 1971 in Senate Bill 1971-263, § 1. The adultery statute was previously codified at C.R.S.1963, §§ 40-6-501, 40-9-3, but it is a bit hard to tell if those versions had a criminal penalty attached.

It is actually a crime to bring a tort claim in Colorado based upon adultery (which is a "heart balm" tort). And, adultery per se cannot be considered in divorce or child custody cases either. This criminal statute, sponsored by my state house representative (Daniel Kagan), which I agree with, was repealed effective August 7, 2013, by Public Law 2013, Chapter 59, § 1 (House Bill 2013-1166).

House Bill 2013-1166 also repealed the much more dubious and problematic crime of "promoting sexual immorality" which had been a class 2 misdemeanor. It had previous criminalize providing hotel rooms or apartments to unmarried people who will have sex there. It stated:

(1) Any person who, for pecuniary gain, furnishes or makes available to another person any facility, knowing that the same is to be used for or in aid of sexual intercourse between persons who are not husband and wife, or for or in aid of deviate sexual intercourse, or who advertises in any manner that he furnishes or is willing to furnish or make available any such facility for such purposes, commits promoting sexual immorality. 

(2) "Facility", as used in this section, means any place or thing which provides seclusion, privacy, opportunity, protection, comfort, or assistance to or for a person or persons engaging or intending to engage in sexual intercourse or deviate sexual intercourse.

Simple Assault

Also, Colorado back in 1994 removed from the definition of assault, what used to be the core offense of simple assault, i.e. causing bodily injury (other than serious bodily injury) with an intent to cause bodily injury (other than serious bodily injury) to someone other than a first responder, without a deadly weapon.

It isn't entirely clear what the motive for this was other than to decriminalize minor, common conduct, which was done effective July 1, 1994 through House Bill 94-1126. I don't have legislative history easily available that goes back that far.

To the extent that the conduct constitutes fighting in a public place outside of an athletic competition, this can constitute "disorderly conduct". And, to the intent intended to annoy, harass or alarm, it can constitute "harassment" or perhaps "hazing". There are also some specialized circumstances where it is still a crime (based upon relationships or location). But, the general crime has been reduced and is now merely a tort or municipal ordinance violation.

Disorderly conduct (a class 2 misdemeanor) still includes the following:

1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:

(a) Makes a coarse and obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an immediate breach of the peace ...

(c) Makes unreasonable noise in a public place or near a private residence that he has no right to occupy; or 

(d) Fights with another in a public place except in an amateur or professional contest of athletic skill; or 

(e) Not being a peace officer, discharges a firearm in a public place except when engaged in lawful target practice or hunting or the ritual discharge of blank ammunition cartridges as an attendee at a funeral for a deceased person who was a veteran of the armed forces of the United States; or 

(f) Not being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.

Colo. Rev. Stat. Ann. § 18-9-106.

This statute, together with the menacing statute (which is basically what used to be called "assault" as opposed to "battery" at common law), however, does criminalize a lot of conduct related to guns and other deadly weapons that doesn't directly cause bodily harm. The menacing statutes states:

(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed: 

(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or 

(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

Colo. Rev. Stat. Ann. § 18-3-206.

Harassment, which is a class 3 misdemeanor in cases that are not hate crimes, is:

(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she: 

(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or . . . 

(c) Follows a person in or about a public place; or . . . 

(2) Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person's actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121(5)(a); or sexual orientation, as defined in section 18-9-121(5)(b). . .  

(8) This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views.

Colo. Rev. Stat. Ann. § 18-9-111.

For purposes of the harassment statute, physical contact includes spitting on someone. People v. Peay, 5 P.3d 398 (Colo. App 2000).

Hazing, which is a class 3 misdemeanor is defined as follows:

(2) As used in this section, unless the context otherwise requires: 

(a) “Hazing” means any activity by which a person recklessly endangers the health or safety of or causes a risk of bodily injury to an individual for purposes of initiation or admission into or affiliation with any student organization; except that “hazing” does not include customary athletic events or other similar contests or competitions, or authorized training activities conducted by members of the armed forces of the state of Colorado or the United States. 

(b) “Hazing” includes but is not limited to: 

(I) Forced and prolonged physical activity; 

(II) Forced consumption of any food, beverage, medication or controlled substance, whether or not prescribed, in excess of the usual amounts for human consumption or forced consumption of any substance not generally intended for human consumption; 

(III) Prolonged deprivation of sleep, food, or drink. 

(3) It shall be unlawful for any person to engage in hazing. 

(4) Any person who violates subsection (3) of this section commits a class 3 misdemeanor.

Colo. Rev. Stat. Ann. § 18-9-124.

So, for example, punishing someone in the face, in private, when it doesn't involve a child, an "at risk" adult, a pledge, or a domestic partner, is not a crime unless there is an intent to "annoy", "harass" or "alarm" which seems unnecessarily narrow in terms of plausible intents that should be criminal to me. 

For example, punching someone in the face, in private, with an intent to obtain retribution for a perceived slight, wouldn't seem to be covered by this statute.

Commentary

Personally, I think it would make more sense to decriminalize the non-violent offense of pure petty larceny, than to decriminalize than to decriminalize intentionally causing bodily injury with an intent to do so. But, Colorado's general assembly, in its wisdom, has disagreed. 

Hickenlooper Uses Pardon Power Appropriately

Gov. John Hickenlooper on Friday commuted the life sentences of six men convicted of first-degree murder as young men or teens, marking the most significant action he has taken with his clemency authority in more than five years when he indefinitely halted the execution of convicted killed Nathan Dunlap. 

The term-limited Democrat granted parole eligibility to the six, who were sentenced to life in prison without the possibility of parole. That includes one — Curtis A. Brooks — who was a juvenile at the time he was sent to prison. Brooks will be released in July 2019 and ordered to serve five years of parole.

Brooks was 15 and with a group of other boys when one of them fatally shot 24-year-old Christopher Ramos during a robbery in Aurora in 1995. Brooks did not pull the trigger, but was convicted of felony murder — a Colorado law that gives legal responsibility for a killing to those present when a murder occurs if they participated in the events leading up to it.

From the Colorado Sun.

The felony murder statute under which Curtis Brooks received his life sentence has been bad policy since the very first felony murder statute of that kind was pass. Imposing vicarious liability for first degree murder on someone who was not proven to have killed or to have had an intent to kill, despite having conspired to commit a serious felony, is simply disproportionate and inappropriate in every case. It is one of the more frequent causes of serious injustice in the criminal justice system and it is good to see that Governor Hickenlooper intervened with the pardon power in this particularly egregious case of injustice.

Gangs In Colorado Prisons

My friend Joel Warner, writing for Westword, explores some positive programs organized by inmates to deal positively with the problem of gangs in Colorado prisons, and it is a big problem. 

As in many other states, Colorado prisons are now home to a dizzying patchwork of gangs, often but not always delineated by ethnicity. African-American prisoners have the Bloods and Crips, plus other, less extensive gangs like the Gangster Disciples and Almighty Vice Lord Nation. Among white prisoners, there is the Aryan Circle, the 211 Crew and other white-supremacist gangs. And Mexican-Americans and other Latino-Americans often join Norteños, Sureños, Los Primeros Padres and Los Aztecas. The volatile mix has led to tense prison environments where looking at the wrong guy, saying the wrong thing or even just singing the wrong song can trigger a riot. While the DOC’s parole and inmate population dropped nearly 10 percent between 2011 and 2015, prison fights, inmate assaults and other markers of violence are on the rise.

According to the DOC, there are now more than 8,000 gang-affiliated inmates and parolees in Colorado divided between at least 135 gangs. That means that roughly one out of every four people in the state prison system is labeled as being in a gang. And there are now more gang members in prison than there are total DOC employees. 

Gangs have become so widespread that research suggests they have evolved into a major and vital part of the prison ecosystem.

As usual, Warner's fact rich narrative provides context and puts a human face on the issue, while leaving you with some hope that maybe this problem isn't as insurmountable as it seems. Gangs, like black markets, arise from simple supply and demand in the context of how American prisons are managed:

“Suppression strategies that isolate gang leaders or gang members have failed to stop gang activity because it ignores the fact that prisoners have a demand for gangs,” says [college lecturer David] Skarbek. “Prisoners want to be safer, so they turn to gangs. Prisoners want drugs and order in the underground economy, so they turn to gangs. There are demand-and-profit opportunities for people to provide these services, so when you remove one ‘entrepreneur’ and the demand remains, new people will step into those profitable roles.” . . .

[Inmate] Watkins wrote up an alternative on a piece of notebook paper, one he called the “Gang Awareness Program,” or GAP. The idea was to teach inmates that there were things in their lives — their family, their community, their religion and their career goals — that were more important than gang affiliation, that would help them shift from a culture of blame and retaliation to one of responsibility and hope. The most crucial, and most groundbreaking, part of the proposal was that participants would be selected from the existing prison gang leadership, and they wouldn’t have to renounce their gang ties in order to join the program. Watkins wanted to have participants focus on productivity and creative endeavors rather than destructive habits and violence.

Critically, after years of working with the Department of Corrections to implement the program it worked:

Soon GAP’s impact was being felt throughout the facility. In the chow hall, Bloods and Crips and 211 Crew members started breaking bread together. GAP’s co-creators even persuaded prison administrators to transfer several of the state’s top prison gang leaders, including 211 Crew founder Benjamin Davis, to AVCF so they could be part of the effort. 

“All the Mexicans, blacks and whites were kicking it. There were no fights, and we were learning,” says Dotson. “Nobody has ever been able to do that.” According to [Inmate Dotson, Watkins and several outside experts who communicated with AVCF staff about the program, the number of gang-related incidents at the facility dropped to nearly zero.

In time, early successes eroded, but it worked. And, a program called iLIVE designed for facilitate re-entry into society also made progress. 

Modern Debtors Prison

The United States Constitution as interpreted by the U.S. Supreme Court is clear.  You may not incarcerate someone for inability to pay a sum of money, civil or criminal, unless they are able to do so, but are willfully refusing to do so (e.g. if the debtor has control over a foreign bank account over which the court cannot obtain jurisdiction).

In practice, people who don't pay fine only offenses (e.g. parking and traffic tickets and minor hunting, fishing and ordinance violations) are routinely jailed for failure to pay fines.  The dollar amounts look tiny to members of the middle class, but can be insurmountable to those who are on the margins (which makes up a disproportionate share of these debtors).

A testimonial from a Texas municipal judge explains why this is unconstitutional and what judges should be doing instead.

Another circumstance in which incarceration for unpaid debts is common involves remedial contempt citations entered against self-employed parents who owe child support and don't pay as agreed.  In some unusual circumstances, this is proper (and some states have criminal laws calling for incarceration sentences for essentially identical conduct).  But, this also produces little compliance, because usually, by the time a hearing comes around the self-employed person has spent the money and can't deliver it and really shouldn't as a result, be held in remedial contempt incarceration at all.

A third circumstance in which people are routinely incarcerated basically for being poor, is when someone is arrested for a minor offense, bail is set automatically or as a matter of course by the judge in some small amount without regard to the ability of the defendant to pay, and the defendant doesn't have the resources to make bail on the often trivially minor charge.  Typically, something like 90% of indigent defendants can be released on personal recognizance bonds without any worse outcomes than the traditional bail system.

Of course, any incarceration, can led to lots of very bad outcomes: loss of a job or for the self-employed loss of business, loss of custody of children or the turnover of children to foster care, coerced pleads to criminal charges for which defendants are not guilty, homelessness upon release (often with loss of personal property if it is lost in an eviction as is common), interruptions in medical care, invasive strip searches, injuries at the hands of guards or fellow inmates who are incarcerated for more serious and often violent offenses, suicide, and high governments costs for incarceration and the related legal process.

Any just system of justice needs to do a much better job, systemically, of handling these kinds of issues that senselessly and harmfully increase the incarceration rate where there is no sound legal or policy argument for doing so.  These cases are the low hanging fruit of sentencing reform.

Colorado's Punishment Rate Increased More Than Any Other State From 1983 To 2013

The "punishment rate" as measured by the Pew Foundation is a state's incarceration rate per capita, normalized to reflect the rate at which various serious crimes for which there is good information available are committed in a state.

Thus, a state with a middling incarceration rate could have a high punishment rate if it incarcerates so many people despite having a very low crime rate, or could have a low punishment rate if it has a much higher than average crime rate.

Colorado currently is very close to the U.S. average for its punishment rate and its incarceration rate.

But, this wasn't always the case.  No state in the United States has seen its punishment rate increase more rapidly over the two decades from 1983 to 2013, during which Colorado's punishment rate increased by 417% and its incarceration rate increased by 271% (the 6th fastest growth rate in the nation).

The lowest increase in the punishment rate over that time period was in North Carolina, where it increased only 17% (it is now 372).  Nationwide, the average increase in the punishment rate over that two decade time period has been 165%, while the incarceration rate has increased nationally by 149% (reflecting a modest drop in crime between 1983 and 2013).

Basically, over the last twenty years, Colorado has gone from being one of the most lenient in the nation in incarcerating people per comparable crime committed, to average.  No state in the nation today has a punishment rate as low as Colorado's was in 1983.  (It is now 469 and was about 100).

  For the most part, this happened because the legislature decided to enact higher sentences for the same crimes and to pay for the prisons needed to incarcerate the people sentenced under those new laws.

A Couple Quick Hits On Criminal Justice In Colorado

* Progress is being made on reducing the deplorable practice of having juvenile delinquency offenders, often younger children, appear in court in chains.  But, there is still room for improvement.

Under a 2015 directive from the Colorado Supreme Court, all 22 judicial districts have adopted individual policies for determining whether juveniles should be restrained in courtrooms. 

This time last year, juveniles who had ongoing cases and were in custody were allowed to appear without restraints in only three districts. Now, 18 judicial districts permit juveniles to appear without restraints unless certain circumstances exist. . . .

In 10 districts, juveniles charged with a serious or violent crime — such as a Class 1 felony — will remain in restraints. . . . In nine districts juveniles will be restrained if they have a mental health condition and are acting in a bizarre or erratic way. Eighteen districts will restrain juveniles if they have made threats or attempted to hurt themselves or others, 13 districts will use restraints if there is information about an escape plan and 10 districts require juveniles to be in restraints if their co-defendants are in the courtroom. At least two districts cited courtroom design and staffing availability as reasons to keep juveniles in restraints. None of the policies dictate how restraints are used outside the courtroom.

* The Sunday Denver Post did an in depth analysis of the costs and benefits of new policies related to parole in Colorado.  In a nutshell, there has been a significant decline in recidivism, although recidivism is still high for felons released on parole. But, a number of cases where the new policies prevented parole officers from getting felons who were committing or would later commit crimes, suggests that the reforms may need some fine tuning.

The main policy changes involve who "technical parole violations" (basically violations of parole rules that wouldn't be criminal offenses for someone not on parole) are treated under Colorado's new rules.  Pre-reform data showed that sanctioning parolees, often severely, for technical parole violations did little to prevent new crimes from being committed (on average) while increasing the incarceration rate as minor violations that were hard for parolees to avoid unless their parole officer was lenient and didn't write them up for them, sent parolees back to prison for long periods of time.

Short, swift jail sentences replace returning to prison in many cases, but sometimes those measures don't seem to be sufficient for parolees who are abusing the more lenient system severely.

The Case For Legalizing All Psychoactive Drugs In A Nutshell

Nixon’s invention of the war on drugs as a political tool was cynical, but every president since — Democrat and Republican alike — has found it equally useful for one reason or another. Meanwhile, the growing cost of the drug war is now impossible to ignore: billions of dollars wasted, bloodshed in Latin America and on the streets of our own cities, and millions of lives destroyed by draconian punishment that doesn’t end at the prison gate; one of every eight black men has been disenfranchised because of a felony conviction.

As long ago as 1949, H. L. Mencken identified in Americans “the haunting fear that someone, somewhere, may be happy,” an astute articulation of our weirdly Puritan need to criminalize people’s inclination to adjust how they feel. The desire for altered states of consciousness creates a market, and in suppressing that market we have created a class of genuine bad guys — pushers, gangbangers, smugglers, killers. Addiction is a hideous condition, but it’s rare. Most of what we hate and fear about drugs — the violence, the overdoses, the criminality — derives from prohibition, not drugs. And there will be no victory in this war either; even the Drug Enforcement Administration concedes that the drugs it fights are becoming cheaper and more easily available.

Now, for the first time, we have an opportunity to change course. Experiments in alternatives to harsh prohibition are already under way both in this country and abroad. Twenty-three states, as well as the District of Columbia, allow medical marijuana, and four — Colorado, Washington, Oregon, and Alaska — along with D.C., have legalized pot altogether. Several more states, including Arizona, California, Maine, Massachusetts, and Nevada, will likely vote in November whether to follow suit.

Portugal has decriminalized not only marijuana but cocaine and heroin, as well as all other drugs. In Vermont, heroin addicts can avoid jail by committing to state-funded treatment. Canada began a pilot program in Vancouver in 2014 to allow doctors to prescribe pharmaceutical-quality heroin to addicts, Switzerland has a similar program, and the Home Affairs Committee of Britain’s House of Commons has recommended that the United Kingdom do likewise. Last July, Chile began a legislative process to legalize both medicinal and recreational marijuana use and allow households to grow as many as six plants. After telling the BBC in December that “if you fight a war for forty years and don’t win, you have to sit down and think about other things to do that might be more effective,” Colombian president Juan Manuel Santos legalized medical marijuana by decree. In November, the Mexican Supreme Court elevated the debate to a new plane by ruling that the prohibition of marijuana consumption violated the Mexican Constitution by interfering with “the personal sphere,” the “right to dignity,” and the right to “personal autonomy.” The Supreme Court of Brazil is considering a similar argument.

From Harpers via the Sentencing Law and Policy Blog.

Well regulated marijuana legalization in Colorado has been a great success.  Empirical evidence from other countries that have taken a public health approach rather than a criminal justice approach to other controlled substances have shown that the benefits of this approach aren't unique to marijuana.

Legalizing vice (including prostitution which no other country in the developed world prohibits as comprehensively as every place in the United States except a few counties in Nevada do), would not by itself empty our prisons from the world record levels of mass incarceration found in the United States. Too many violent crimes drawing very long sentences in the U.S. have nothing to do with the vice trade for that to happen.  But, it would make a huge dent in incarceration rates, especially at the federal level.

But, vice is the dominant funding sources for organized crime.  Payday lending, title loans and hard money lending, along with myriad forms of legalized gambling and the demise of unions to corrupt, have made drugs and prostitution the dominant source of revenues for organized crime.  Legalize them and the vast majority of the street gangs and drug cartels will wither, because their dominant sources of revenue will dry up.

Blue collar crimes like robbery, burglary and larceny have become increasingly irrelevant as tangible personal property has grown cheap and currency has grown rare relative to  real estate and intangible property, and improved technologies have motor vehicles harder targets and have made the odds of repeat offenders getting caught much higher.

Fraud remains an extremely profitable form of crime, but is both non-violent and requires more patience and skill than the vast majority of gang bangers with nothing to lose have at their disposal. Straight out kidnapping for ransom and extortion remain as potential organized crime revenue sources, but the overall crime level is low enough and law enforcement resources are great enough, that this offenses are too risky to engage in routinely for organized crime organizations.

Sentencing Blogging To Do

This post was originally written in August of 2009.  The crime of escape in Colorado has since been reformed somewhat by the Colorado general assembly.

1. Post on the crime of "escape" in Colorado with more detail. The offense punishments make no sense in real life. A handful of people each year escape from jail or prison each year in Colorado, out of something on the order of 25,000 people incarcerated at any one time in jails or prisons, and often one or two of those were actually at a hospital or otherwise outside the facility when the escape happened. In contrast, something like a third of people in private community corrections are treated as escaping each year, numbering in the hundreds. Both the AWOL community corrections participant and the person who digs out under barbed wire have committted the same offense, "escape" even though the former is a major violent and physical event, while the former is mere negligence commonplace in every day life. The minimum sentence for escape is four years in most cases, and depends upon the nature of the underlying offense not the nature of the act. Punishing AWOL community corrections offenders makes sense; giving them new four year minimum sentence felonies does not. Real escape from either jail or prison should remain a serious crime, aggravated if achieved by force from a secure facility as opposed to by deceipt or in a non-secure facility. Failing to meet community corrections deadlines should be a technical violation punishable as a petty offense. This overkill unnecessarily fills hundreds of expensive prison beds in the state. About 98%-99% of escape cases are of the AWOL community corrections offender variety. Similar mistakes by parolees, who aren't obviously differently situated, or by people on bond awaiting trial, are punished much more lightly.

2. Talk about when we care about repeat offenses, and how we care. We have three different systems now: driver's license suspension based upon points for traffic offenses in a short time period; zero additional penalty other than judicial discretion for repeat misdemeanor offenses who has have modest collateral consequences of their convictions; and severe penalty increases for habitual felony offenders who have severe collateral consequences of their convictions.

The cliff is really more steep. Offenders with short criminal records often get off without any incarceration, but build up credit towards long future sentences if the conviction is for a felony. Offenders with long criminal records often get sentences near the top of the available range in addition to sentence enhancements based upon prior criminal records. Basically, one gets slaps on the wrist with dire warnings for a while, and then one is socked with life eliminating long terms in prison.

Also, ordinances, petty offenses and misdemeanors, with some particular well defined exceptions, routinely produce sentences near the bottom of the permitted range, except where there is a pattern of recidivist conduct.

With some ordinance, petty offense and misdemeanor violations we usually don't care if there is recidivism, or care only for narrow reasons (e.g. prior parking violations remain unpaid, or traffic violations are repeated and should produce a suspended license). Indeed, while all felonies carry serious repeat offense violations, we don't necessary care about recidivism in all of those cases either.

It would be good for the system to empirically determine what non-felony offenses are drawing what punishments,

Colorado Tough On Bad Drivers

Colorado's new felony DUI statute has pushed it up to being the 6th most strict state in the nation in punishing high risk drivers and charging them more for insurance.

SCOTUS Shows Interest In Conditions Of Incarceration

In Kingsley v. Henderdrickson, the U.S. Supreme Court resolved a circuit split by holding that the standard of civil liability for excessive force for people incarcerated prior to trial and conviction under the Fourteenth Amendment's due process clause ("objective unreasonableness") was distinct from and lower than the standard of civil liability for excessive force for people incarcerated pursuant to a conviction ("reckless disregard for the prisoner's safety and rights") under the Eighth Amendment cruel and unusual punishment clause.

This is not as bold as step as Slate.com suggests, because almost every federal appeals court circuit other than the 7th Circuit already followed the standard set forth in Kingsley.  It is disappointing to see that Chief Justice John Roberts, and Justices Clarence Thomas and Antonin Scalia were unwilling to join the consensus on what should have been a very easy case legally.

But, Kingsley does set a clear national standard and entrenches a distinction between the treatment of pre-trial and post-conviction detainees in U.S. jails.

By itself, this is unremarkable, but it is notable when taken together with the off topic concurring opinion of Justice Kennedy in David v. Ayala, in which Justice Kennedy invites future judicial review of prolonged solitary confinement for everyone from inmates on death row (as in the case before the Court) to poor New York kids in pretrial detention for years because they can't make bail.

The full text of the June 18, 2015 opinion is worth restating here for reference purposes:

JUSTICE KENNEDY, concurring. My join in the Court’s opinion is unqualified; for, in my view, it is complete and correct in all respects. This separate writing responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case.

In response to a question, respondent’s counsel advised the Court that, since being sentenced to death in 1989, Ayala has served the great majority of his more than 25 years in custody in “administrative segregation” or, as it is better known, solitary confinement. Tr. of Oral Arg. 43–44. Counsel for petitioner did not have a clear opportunity to enter the discussion, and the precise details of respondent’s conditions of confinement are not established in the record. Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. Ibid.; see also Wilkinson v. Austin, 545 U. S. 209, 218 (2005); Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014). It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison. Ibid.

The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators. Eighteenth-century British prison reformer John Howard wrote “that criminals who had affected an air of boldness during their trial, and appeared quite unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears when brought to these darksome solitary abodes.” The State of the Prisons in England and Wales 152 (1777). In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or appreciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes, a type of diversion no doubt denied many of today’s inmates.

One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death, solitary confinement bears “a further terror and peculiar mark of infamy.” In re Medley, 134 U. S. 160, 170 (1890); see also id., at 168 (“A considerable number of the prisoners fell, after even a short [solitary] confinement, into a semi-fatuous condition . . . and others became violently insane; others, still, committed suicide”). The past centuries’ experience and consideration of this issue is discussed at length in texts such as The Oxford History of the Prison: The Practice of Punishment in Western Society (1995), a joint disciplinary work edited by law professor Norval Morris and professor of medicine and psychiatry David Rothman that discusses the deprivations attendant to solitary confinement. Id., at 184.

Yet despite scholarly discussion and some commentary from other sources, the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. See, e.g., Brown v. Plata, 563 U. S. ___ (2011); Hutto v. Finney, 437 U. S. 678, 685 (1978) (“Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under the Eighth Amendment”); Weems v. United States, 217 U. S. 349, 365–367 (1910). Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into account, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or indifference.

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.

There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular. See, e.g., Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, p. 26 (detailing multiyear solitary confinement of Kalief Browder, who was held—but never tried—for stealing a backpack); Schwirtz & Winerip, Man, Held at Rikers for 3 Years Without Trial, Kills Himself, N. Y. Times, June 9, 2015, p. A18. And penology and psychology experts, including scholars in the legal academy, continue to offer essential information and analysis. See, e.g., Simon & Sparks, Punishment and Society: The Emergence of an Academic Field, in The SAGE Handbook of Punishment and Society (2013); see also Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health 442 (March 2014); Metzner & Fellner, Solitary Confinement and Mental Illness in U. S. Prisons: A Challenge for Medical Ethics, 38 J. Am. Academy Psychiatry and Law 104–108 (2010).

These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time.

We can expect to see petitions brought to the Court in response to this opinion, both on solitary confinement and excessive pre-trial confinement, and can expect to see a receptive Justice Kennedy together with the four liberal justices, ready to grant relief in response to them.

UPDATE:

On Solitary Confinement

News coverage here.

The blog Solitary Watch sums up some of the leading U.S. Supreme Court cases on the topic.

Some theories that one might advance:

* Solitary confinement on more than a brief, episodic basis in response to "hot" disciplinary issues related to control of a facility is punishment of a form not authorized by a jury in excess of what is reasonably expected when a sentence to a crime for a term of years is handed down.

* Solitary confinement on more than a brief, episodic basis in response to "hot" disciplinary issues related to control of a facility is a punishment not authorized for pre-trial detainees.

* Prolonged solitary confinement in its current form constitutes cruel and unusual punishment that violates the 8th Amendment when applied to juveniles, and in particular to juveniles in pre-trial confinement.

* Prolonged solitary confinement in its current form constitutes cruel and unusual punishment that violated the 8th Amendment in light of our growing understanding of its consequences and the way that it is used and applied.

Each of these theories, implicitly, offers the possibility that "solitary confinement lite" that is less harsh, might be permissible to maintain order or as a form of protective custody, even if it is cruel and unusual in its current customary form (e.g. a normal single sized cell, access to clothing and basic means of entertainment, more outside exercise time, and normal food, non-contact access to visitors for example by telephone or Face time).

Legislatures or jail and prison officials might be able to implement other kinds of policies without judicial intervention.  For example, the legislature might adopt a statute setting forth the grounds for which solitary confinement could be imposed for a duration of a particular length, and setting minimum standards for the conditions of solitary confinement, and provide for judicial review of violations of those standards.  Jail or prison officials could probably change solitary confinement policies simply by decree where no other legislation is in place.

On Pre-Trial Confinement Conditions and Duration

Another issue relates to pre-trial confinement and the right to a speedy trial, particularly for misdemeanors or minor felonies.

This is a huge issue.  About half of people incarcerated in jails (and about 21.5% of all persons incarcerated on any given day in the U.S. as of December 31, 2010) at any one time are pre-trial detainees, and most are face misdemeanor or minor felony charges upon which there is a significant chance that the ultimate sentence will be to probation, fines and other non-incarceration sentences, if the defendant is convicted at all.

U.S. incarceration as of December 31, 2010 was (figures cited from link below which used the source linked which has since produced updated numbers for more recent years showing a modest decline):

* 2,266,832 prisoners from a total population of 310,640,000 (730 per 100,000).
* Jails 866,782 (including about 487,369 pre-trial detainees - 56% of all persons in jail)
* State Prisons: 1,140,500
* Federal Prisons: 126,863

This is one of many factors causing the incarceration rate in different U.S. states to differ by a factor of ten from Louisiana at double the average rate at the high end to Maine at 20% of the average rate at the low end.

* Under the most limited version of this theory, all charges should be dismissed on speedy trial grounds in any case in which time served has exceeded the maximum possible sentence for the offense, regardless of the formal calculations that go into speedy trial statutes and the defendant's consent to delays.  For example, if the maximum sentence for shoplifting a backpack is 3 months, pre-trial detention on those charges should end after 3 months.

* Under more expansive versions of this theory, this should apply when time served is a majority of the maximum sentence, or when time served exceeds some smaller portion of the sentence (e.g. 1/3rd, 1/4th, 1/5th, 1/10th), or when time served exceeds the minimum sentence for the offense (particularly in the case of felonies that often have minimum and maximum sentences), or when time served exceeds the customary sentence in practice for similar offenses.  In the example above, the maximum pre-trial incarceration might be 6 and a half weeks under the majority of the sentence rule, and less under other rules.

Under either of these theories, good time in actual incarceration should count as time served in pretrial detention just as it would in post-conviction detention.

* More general rights for pre-trial detention conditions could also be established, requiring, basically, a significant difference in conditions of incarceration prior to trial and after conviction so that the former is clearly not punitive in nature.  For example, a right to non-attorney visitors, to access to one's own property while in prison unless shown to be a safety issue, a right to be addressed by name, a right to due process before disciplinary sanctions are imposed, a right to reasonable protections from fellow inmates upon a good faith expression of fear of abuse, etc.

* Juvenile pre-trial detainees, in turn, might have extra protections such as a right to regular visits from parents and guardians (even allowing parents and guardians to stay with the juvenile pending trial), a right not to be housed with adults, and shorter speedy trial deadlines that reflect the time urgency of developing juveniles relative to adults.

On Bail

Another related theory would be that bail should never exceed the maximum fine and court costs upon conviction plus the expected earnings of the defendant during the time period of maximum incarceration for the offense.  So, for example, if a full time, $10 an hour employee was detained for an offense punishable by up to 6 months in jail and a $1,000 fine plus $250 in court costs, the maximum bail would be $11,250.

Another theory on bail might be that pre-trial detention may only be authorized in misdemeanor cases where a defendant is indigent when there is specific individualized evidence showing a likelihood of flight or harm to the public prior to the hearing date, such as a previous failure to appear warrant, a lack of a fixed residence, a restraining order in existence at the time of arrest, or something similar.

Again, this could be implemented by policy (and indeed, one of the historically most successful policy changes has been to implement pre-bail hearing screening to allow most defendants to dispense with bail), in the judicial branch, prosecutor's office, or legislatively.  In the pertinent part, a 2010 post on this issue at this blog said:

[Bail supporters] argue that bail bonds save money by reducing pre-trial monitoring costs. Is this true? No. Denver's recent experience is typical:

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:

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 [which would have "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."] and thinks it might be constitutionally flawed:

"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: 

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.

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. 

[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.

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.

"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."

Alternatives to pre-trial release on personal recognizance include statutory fines (or court contempt power policies) for failure to appear, so that only non-compliance individuals are punished.

Colorado passed HB 13-1236 on May 11, 2013 with a goal of reducing pre-trial incarceration.

Where flight, and not further harm to the public are at issue, techno-corrections measures like ankle tracking bracelets could be used in lieu of pre-trial incarceration.

It also wouldn't be stunningly expensive to establish a non-profit to post bond for indigent individuals in cases where the amount is modest relative to the charge faced at trial to allow them to avoid costly detention.