Senator Claims Law Enforcement “Mischaracterizing” His “Jail Population Management Tools” Legislation—New Amendment To “Fix” Bill Is Further Evidence Of Its Unconstitutionality
Senator Pete Lee is steaming forward with his amendment to “fix” the fatally flawed legislation brought by the ACLU (Senate Bill 21-062), a bill to have the legislature intrude on the discretionary and inherent powers of the two other branches of government, the Executive and Judicial Branches. Read the amendment here
In email to unknown parties, Senator Lee begins by noting that “many of the issues raised by law enforcement reflect fundamental misunderstandings and mischaracterizations about the bill.” Of course, it is those “mischaracterizations” to which he is responding with the amendments, which he points out. Thus, clearly this means there were some “characterizations” of the bill and “understandings “of the bill that mean the bill that the Senator had on the table was flawed. Read the email here.
The amendment fixes—not much. On the arrest side, there are some additional exceptions where officers can arrest. Felony 4’s are now arrestable, for example. Of course, those same exceptions are not given to judges to set bail in cases where officers are permitted to arrest. On the bail side, nothing has changed except now you can fail to appear only twice instead of three times before giving judges the discretion to set a bail—other than that, there remains the presumptive zero bail for any F-4, 5, 6 or misdemeanor crimes in Colorado.
Importantly, as we have noted numerous times, the exception to allowing for any bail in all Felony 4-6, misdemeanor and lower crimes is too tight and will result in “stay out of jail free” cards for nearly all of those in these categories. Regarding showing up in court, the new amendment allows for the imposition of bail only if the court finds that the defendant “is likely to flee,” defined as “PLANNING OR ATTEMPTING TO INTENTIONALLY EVADE PROSECUTION BY CONCEALING ONESELF. SIMPLE, PAST NONAPPEARANCE IN COURT ALONE IS NOT EVIDENCE OF FUTURE INTENT TO FLEE PROSECUTION. CITIZENSHIP STATUS ALONE IS NOT EVIDENCE OF FUTURE INTENT TO FLEE PROSECUTION.”
In short, there is no way to prove intent to flee and conceal. It’s never going to happen unless the defendant decides to specifically tell the prosecutor. Or, as we have pointed out, if I decided not to go to court, I am not concealing oneself if I simply tell the officer, “I’m not going to go, you know where to find me when I’m not there.” Instead, the settled legal standard in Colorado law of “ensure appearance in court” flows from ancient Supreme Court case law that pre-dates statehood, and most recently appears in the seminal 1954 U.S. Supreme Court case of Stack v. Boyle. This exception is really a meaningless exception—judges will rarely be able to invoke it.
Finally, as we have said, there is no constitutional basis to discriminate against the class of persons that Senator Lee gets to call “innocent”, and thus no arrest and no bail, and what we might term the not-so-innocent, and thus those who would be arrested and/or be required to post bail. Such line-drawing is premised solely on political realities, and it not is a sufficient way to discriminate against defendants for purposes of arrest or bail. Senator Lee would throw the presumption of innocence in the trash, and give judges free-fettered discretion to impose bail in high-level cases that cause some law enforcement and prosecutors to go “neutral” on the bill, but then the presumption of innocence is absolutely sacrosanct in the cases in where arrests and bail will not occur because that will move the needle just far enough to keep the support of the ACLU.
Indeed, the presumption of innocence is a flexible doctrine—but it is not that flexible. To premise custodial freedom from the state based on these distinctions is flawed. In fact, this scheme has no rational basis in terms of the basis for which it discriminates against the accused by restricting the discretion of executive and judicial branch officials. That we get a “floor amendment” to make the bill more politically palatable to some is definite proof that the underlying scheme itself only had a political but not a rational basis for its discrimination against the People, the victims of crime, and the accused. Those parties will ultimately invalidate this law, even if the political realities then change again, because the presumption of innocence does not depend on who wins an election or some ex parte “stakeholdering” process that has delivered up a bevy of “neutral” parties.