Statewide and county-wide data show that alleged offenders released on personal recognizance bonds — which don’t require cash up front — were less likely to commit another crime or miss their court appearances than those released on a cash bond.
It brings to question why monetary bonds are, in most cases, mandatory, while some counties in the state don’t have pretrial supervision services, which data shows may reduce risk regardless of a person’s background. In recent years, more states are taking stock of their bond systems and enacting reforms. Some, like New Jersey, have eliminated monetary bonds altogether.
Boulder County District Attorney Michael Dougherty also believes in eliminating monetary bonds, but says it will take a statewide vote on a constitutional amendment to make that a reality. Meanwhile, Dougherty and other stakeholders in Boulder County are evaluating who is being held pretrial and creating programs meant to divert offenders from the criminal justice system.
“The details matter”
Dougherty expects that a statewide commission addressing bond reform will be ready to present a constitutional amendment to the state legislature in time to get the proposal on the 2020 ballot. A pretrial release task force started by the Colorado Commission on Criminal and Juvenile Justice has been working on the issue since June 2017.
So far, there’s “a lot of support for a lot of reform,” according to Bo Zeerip, chairman of a work group in the task force and the chief deputy district attorney for the 21st Judicial District in Mesa County. The group is not commenting further on items it hasn’t formally voted forward to recommend to the commission.
Zeerip did say the task force is looking at hold and release systems, which other jurisdictions like New Jersey and Washington, D.C., have adopted, as potential models.
In such systems, alleged offenders would go before a judge at a detention hearing where testimony and arguments for or against their release could be presented. The judge would then decide whether the alleged offender provided a great enough flight or public safety risk to be held pretrial. If not, the person would be released, often with conditions that could include pretrial supervision to help the person stay on track.
This system has the potential to relieve overpopulated jails and send low-level offenders back to their jobs and families. But some groups that support criminal justice reform caution that the model needs to be enacted carefully.
“We can’t just replace wealth-based detention with a risk-based detention that has a really broad definition of risk,” said Rebecca Wallace, staff attorney for the ACLU of Colorado. They fear that, without a specific definition of risk, judges will default to detaining a majority of alleged offenders. Eliminating monetary bonds could then potentially increase the jail population. “… We really need to see agreement from criminal justice stakeholders on the risk that can justify detention of legally innocent people who have been accused of a crime.”
Dougherty said he expects to support the proposed amendment that comes from the state task force, but he agrees that the issue needs to be handled carefully. He also pointed out that the detention hearings need to be structured so they don’t burden a criminal justice system that is already stretched thin.
“The details matter,” he said. “We’re at a critical juncture for criminal justice reform.”
Monetary bonds and risk
Data from the Colorado Division of Criminal Justice, provided to the commission’s pretrial task force, analyzed both felony and misdemeanor cases from 2014 through 2016. The data shows that monetary bonds don’t necessarily mitigate risk, and thus may possibly not be effective.
The data does not provide further background on differences between offenders in violent and nonviolent cases, or between first-time offenders and those with prior criminal histories. It does break out those who have drug charges from those who don’t.
For those released pretrial on cash bonds in felony cases, 19 percent reoffended in some way, whether it was a felony, misdemeanor or traffic crime. For those released pretrial on personal recognizance bonds in felony cases, 14 percent reoffended. The numbers are similar for court appearances, and for misdemeanor cases.
The majority of new filings for those who reoffend when released on bonds are misdemeanor traffic offenses.
“With a monetary bond, it is undisputed that there are people being released who are not safe to the community,” said Monica Rotner, division manager of community justice services for Boulder County.
Rotner uses Mother Teresa and Al Capone as examples. If they both commit the same crime of murder, and they both receive $1 million bonds, Al Capone is more likely to be able to post bond.
“And who’s riskier?,” Rotner said. “Al Capone, more than Mother Teresa, right?”
Research also shows that monetary bonds can increase the risk of recidivism for low-level offenders who cannot afford their bond and then are detained for as little as two days by upending their lives and exposing them to high-level offenders.
A 2013 study found that the longer someone is held in pretrial detention, the more likely it is they will reoffend after they are sentenced. The exposure of low-risk individuals to higher-risk individuals increased the likelihood that the former group would reoffend.
Most people that come into the criminal justice system in Boulder County receive a community-based sentence, according to Rotner. But if they’re detained in jail for as little as two days, they could lose their jobs, housing or more, which sends them down a spiral.
Pretrial detainment also clogs up jails. The Boulder County Jail was built more than three decades ago to hold 270 inmates, according to Boulder County Sheriff Joseph Pelle. Some weeks, the jail is now housing more than 500 inmates.
It costs $130 per day to house someone at the jail, Pelle said. In contrast, a 2015 study found that pretrial supervision services cost a daily average of $3.56 per defendant.
According to data collected by the ACLU of Colorado in November 2017, nearly 60 percent of the Boulder County Jail population was pretrial, which aligns with state averages. About 51 percent of that population was being held on misdemeanor offenses — about twice the state average.
Boulder County isn’t alone in jail overcrowding. At the time of the study, Boulder’s jail was at about 75 percent capacity, with 417 inmates. For comparison, Pueblo County Jail was at about 194 percent capacity, with 990 inmates to its 509 beds.
Reforms and data
While the percentage of misdemeanor offenders held pretrial was high in Boulder County in the ACLU’s 2017 snapshot, Dougherty said he evaluates who is being held in jail and why.
A group of stakeholders in Boulder County — including members of the sheriff’s office, pretrial services and bond commissioners — meet regularly to review data and work on bond reform, he said. The group looks at who is being held in jail pretrial on cash bonds, and for what reasons.
Recently, the stakeholder group took a look at the Boulder County Jail one day in September. The snapshot looked at people being held pretrial on cash bonds of $1,500 or less and found that 62 of the 450 inmates in jail at the time were being held on bonds of $1,500 or less.
Of those 62 inmates, 39 could have posted a bail if they had the means to do so, but the rest had warrants or holds for other cases, or were released before the data was fully collected.
While more than half are being held because they can’t afford a $1,500 bail, Dougherty said the numbers reflect the county’s ability to identify who should be released on bond. The court had a right to hold those 39 people on a bond, he said, due to qualifying circumstances in their cases that meant they posed either a flight risk or a risk to public safety. More than two-thirds of those cases were for felony crimes.
“I do think these numbers show that Boulder County has taken significant steps in bond reform and making sure we have the right assessment tool” to determine the level of risk, Dougherty said.
Since he became district attorney, Dougherty has also pursued other reforms. He has started a conviction integrity unit, created a mental health diversion program with other county agencies and, most recently, moved to start a “Moving on from Marijuana” program that will vacate and seal marijuana possession convictions now that marijuana has been legalized.
Risk assessment and the risks it poses
Rotner oversees the bond commissioners in Boulder County. In October 2016, she decided that commissioners would recommend personal recognizance bonds for alleged offenders who scored a one or a two on the Colorado Pretrial Assessment Tool, or CPAT, exams, barring some exceptions.
The CPAT is used by 17 jurisdictions in Colorado to determine the level of potential risk an offender poses, on a scale of one to four, for either reoffending or not showing up in court. While Dougherty and Rotner both say that using a strong risk assessment is a necessary trade for eliminating monetary bail, the ACLU says the CPAT could be improved.
“The CPAT is inherently biased in many ways, racially and economically,” said Becca Curry, research and policy counsel for the ACLU of Colorado.
The 12 questions included on the CPAT are meant to assess how easily reachable an alleged offender is, and how strong their ties are to the community, as a way to determine how likely they are to flee Boulder County or just not show up to court.
But Curry said they are inherently biased against those who are homeless, poor or a minority. In addition to questions about prior criminal history, the CPAT asks people if they have a working phone, penalize people for renting property or being homeless, and asks if they have issues with alcohol.
Curry said this makes her wonder if Boulder County’s use of the CPAT is driving its higher-than-average pretrial misdemeanor jail population.
Wallace, the ACLU’s staff attorney, said that while any action taken to increase personal recognizance releases is a good thing, most often homeless people won’t ever score a one or a two on the CPAT.
Still, most officials say that the state needs to adopt a risk assessment tool and mandate pretrial supervision programs if it wants to eliminate monetary bonds. The pretrial release task force has recommended to make the CPAT the statewide assessment tool, though jurisdictions can use other tools to improve pretrial decisions. The University of Northern Colorado is doing a revalidation of the CPAT’s success that will recommend changes to certain questions, Rotner said.
The task force also recommended mandatory statewide pretrial supervision programs. According to the data given to the task force, pretrial supervision may be one of the most sure ways to decrease risk. Regardless of which type of bond offenders were released on, those who were supervised pretrial were more likely to appear in court and less likely to reoffend.
While less controversial, this will come with a cost. Larimer and Mesa counties, which both have strong pretrial supervision programs, spend $1 million or more per year, according to Tom Raynes, a member of the commission and executive director of the Colorado District Attorneys’s Council. It’s estimated that the state will need to spend about $20 million annually to ensure there are programs statewide.
A community effort
While the ACLU would like to see the county eliminate monetary bonds for low-level misdemeanor offenses, rather than relying on CPAT scores, Wallace and Curry also said that Boulder County is ahead of much of the state.
For example, the items approved so far by the statewide pretrial task force are already in place in Boulder County, but not in some smaller or more rural jurisdictions. Some of their recommendations include mandating pretrial services in every jurisdiction and requiring the use of the CPAT.
For now, Dougherty said they will continue to evaluate who is being held on cash bonds and who is being released on personal recognizance bonds, as they can’t eliminate monetary bonds within the county without changing state law.
Dougherty emphasized that the community needs to be part of bond reform, as well.
“We need to help the community understand what this process is for,” he said. There’s some risk in releasing anyone on a personal recognizance or cash bond, but a person is considered innocent before his or her trial. There’s also a risk associated with detaining people on bonds they can’t pay, he said, because it could impair their ability to be successful community members and send them into a cycle of recidivism.
“We need to do better at helping people get better,” he said.
Madeline St. Amour: 303-684-5212, mstamour@prairiemountainmedia.com
