Colorado’s bail system is irrational and harmful

Photo by Joe Amon/The Denver Post Elisabeth Epps with the Denver Justice Project talks with Alfred Sisco, 56, of Denver as he is released on bail from the Denver Downtown Detention Center on June 14, 2018. The Denver Justice Project and Black Lives Matter 5280 are bailing out a few individuals as part of a campaign to push bail reform and end the money bail system, especially for low-level crimes.

By CLAIRE LEVY |PUBLISHED: July 6, 2018 at 12:19 pm | UPDATED: July 10, 2018 at 11:30

Colorado is in the midst of a jail crisis. Across the state, jails are overcrowded, with several jails operating at 150 percent capacity with deplorable conditions. Yet the majority of people in those jails have not been convicted — they have been accused of a crime and are deemed to be innocent in the eyes of the law. Many will ultimately be exonerated. Many who are convicted will be sentenced to probation and released when their case is disposed of, and all but a very few are constitutionally entitled to release until their trial.

The difference between those who are freed pre-trial and those who are kept behind bars is simple and disturbing: money. Those with money can pay their bail and go free while those without money must sit behind bars and wait for trial, or, as defendants often do, plead guilty just to get out of jail and get home sooner. This situation does not just deprive people of their liberty, it puts them at risk of losing their job, frays family relationships and exposes their families to loss of housing and financial insecurity.

In this irrational system, individuals who are dangerous or likely to flee prosecution can buy their way out of jail while impoverished individuals who pose no risk of flight or to public safety remain incarcerated. This is particularly concerning because we know that, solely as a result of their pretrial incarceration, individuals who remain in jail pretrial are more likely to be convicted, receive a heavier sentence and have future involvement with the criminal justice system than those who are freed.

This system of wealth-based detention is not only bad policy, it is unconstitutional. Across the country, courts are finding that jailing individuals because they can’t afford bail violates the right to equal protection and due process. A wealth of research shows that using money bail does nothing to advance the only two legitimate purposes of bail: getting people to return to court and protecting the community from violence. Non-monetary conditions of release, such as court reminders and community-based supervision, are much more effective in advancing these goals.

While comprehensive bail reform in Colorado requires action by the legislature, it is ultimately the judiciary that must change its practices. Without judicial leadership, bail reform is likely doomed in this state.

Case in point: In 2013, I sponsored legislation to reform this state’s bail system, in part by discouraging judicial reli