Colorado Legislature Poised to Transfer the Power to Regulate Local Bail Policy to The State Court Administrator, Including Ordering Counties to Spend Budget Dollars on Pretrial Services Programs

Colorado Legislature Poised to Transfer the Power to Regulate Local Bail Policy to The State Court Administrator, Including Ordering Counties to Spend Budget Dollars on Pretrial Services Programs

There’s been a lot of conversation about the so-called national “end cash bail” movement.  In fact, the end cash bail movement started in Colorado by self-appointed expert Tim Schnacke and his 2012 failed attempt to amend Colorado’s constitution to eliminate the right to bail.   But, the legislature is now at it again, this time not to “end cash bail” but to end local control of arrest and bail policies and to require every county to create a pretrial services program unless they formally file for and obtain a waiver from the State Court Administrator.

In fact, House Bill 19-1226 has already passed the House.

First, according the legislation, “ALL COUNTIES AND CITIES AND COUNTIES SHALL DEVELOP BY JULY 1, 2020, A PRETRIAL SERVICES PROGRAM IN CONSULTATION WITH THE CHIEF JUDGE OF THE JUDICIAL DISTRICT THAT MAY BE UTILIZED BY THE COURTS OF THE JUDICIAL DISTRICT.”

Second, each jail facility will have a designee to conduct the pretrial risk assessment and screening appointed by the Chief Judge of the Judicial District: “THE CHIEF JUDGE OF THE JUDICIAL DISTRICT SHALL DESIGNATE A PERSON, AGENCY, OR PROGRAM FOR EACH DETENTION FACILITY WITHIN THE JUDICIAL DISTRICT TO CONDUCT THE PRETRIAL RELEASE SCREENING TO ALLOW FOR RELEASE OF PERSONS TAKEN INTO CUSTODY BY LAW ENFORCEMENT OFFICIALS.”  To find out if your county is on the list of 40+ counties that will have to create a program that complies with the legislation, click here: Colorado Pretrial Services Data Collection

Is this an unfunded mandate?  You bet it is.  The Colorado Commission on Criminal and Juvenile Justice wants to force all of the counties to do all of this, despite knowing the price tag will be huge.  In Kentucky, for example, the statewide pretrial program costs around $25 million annually.  The Colorado House, however, decided to ram this down the counties collective throats not by funding it but by first requiring counties to do it and fund it and then create a waiver process.  This process is going to trigger endless litigation with a process that we don’t believe is going to pass constitutional muster in the first place.  Rather than giving counties any money (the low-end estimate was over $7 million annually), the State Court Administrator instead made out like a bandit, getting $1.03 million to supervise, manage and implement local bail policies.

To get a waiver and thus not comply with the law, a county will have to sue the State, with the State Court Administrator, in his sole discretion, deciding whether counties will or will not have to fund the pretrial services program by December 31, 2019:

IF A COUNTY IS UNABLE TO OPERATE A PRETRIAL SERVICES PROGRAM AS REQUIRED BY SECTION 16-4-106 (1), THE COUNT SHALL SUBMIT TO THE STATE COURT ADMINISTRATOR, ON OR BEFORE DECEMBER 31, 2019, A STATEMENT OF INABILITY TO COMPLY, WHICH MUST OUTLINE, IN DETAIL, THE REASONS WHY THE COUNTY IS UNABLE TO PROVIDE A PRETRIAL SERVICES PROGRAM DESPITE A POTENTIAL MONETARY ALLOCATION FROM THE PRETRIAL SERVICES CASH FUND. THE STATEMENT OF INABILITY TO COMPLY MUST DESCRIBE WHAT NECESSARY RESOURCES ARE UNAVAILABLE THAT PREVENT THE ESTABLISHMENT OF A PRETRIAL SERVICES PROGRAM IN THAT COUNTY,WHICH MAY INCLUDE, BUT ARE NOT LIMITED TO, THE NECESSARY AMOUNT OF FUNDING, THE LACK OF NECESSARY INFRASTRUCTURE, OR THE LACK OF PERSONNEL OR PROGRAM SERVICES WITHIN THAT COMMUNITY. THE STATEMENT MUST ALSO INCLUDE A DESCRIPTION OF WHAT CHANGES IN LAW OR OPERATION OR IN THE ALLOCATION OF RESOURCES WOULD ALLOW THE COUNTY TO ESTABLISH A PRETRIAL SERVICES PROGRAM.

Of course, there is no “potential monetary allocation to the counties”—the State Court Administrator is the only one who will get any money.  The litigation costs alone to file the “statement of inability to comply” will be costly to counties.  The fact is, this is unconstitutional—to have the State Court Administrator be the sole-decisionmaker on whether a county is required to fund a certain program or not to comply with a state mandate violates the doctrine of separation of powers, violates the due process clause because there is no remedy when the State Court Administrator rejects a waiver for whatever reason, and because it exceeds the power of the State to supervise local affairs.

RELATED: Who is the Colorado State Court Administrator?

Third, “THE STATE COURT ADMINISTRATOR SHALL PROVIDE ADMINISTRATIVE OVERSIGHT OF PRETRIAL SERVICES PROGRAMS AND THEIR OPERATIONS ACCORDING TO UNIFORM STANDARDS AND PROTOCOLS ESTABLISHED BY THE STATE COURT ADMINISTRATOR.”  In other words, the State Court Administrator is going to supervise the work of all 64 counties when it comes to pretrial services, including whether to use a pretrial risk assessment and which ones, and all other policies and practices relating to arrest and release from jail pending disposition.  Is there any input required from the regulated 64 counties: nope.

Fourth, the counties that are going to bear the brunt of any negatives that come from this, which will be large, and we can say with absolute confidence that the State Court Administrator is going to dodge any and all of the negative consequences of this act.  In fact, he has already started that skirting process.   We strongly believe that the Colorado Pretrial Risk Assessment Tool (CPAT) violates the Americans With Disabilities Act because it scores mentally ill people as higher risk and therefore such persons will face more severe consequences when it comes to bail and conditions of release.  CPAT is also invalid insofar as it has never been revalidated since build over a half decade ago.  When we asked the State Court Administrator to inform judges using the tool that we were going to file a complaint with the United States Department of Justice against such judges, he ducked it.  He first lawyered up, and his attorney instead said in a letter on April 17, 2019 that, “Your letter appears misguided, as the State Court Administrator does not set bail assessment policies for the judicial districts.”  His lawyer also pointed out that if anyone is on the hook it is the appropriate “county or city authority.”  So, you can bet when the State Court Administrator takes over, he’s not going fight against misguided policies that may expose counties to liability—he’s going to steam forward with his empire building and create a second version of state probation, but funded by counties.  We also pointed out that the State Court Administrator may want to get concerned since shortly, under HB 19-1226, he will be the statewide grand potentate for the setting local bail policy.  I doubt we’ll get a response from His Excellency.

Fifth, this also has a huge impact on the counties that already have an existing pretrial services program because: (1) they lose complete local control in terms of how to run the program and how to apply the risk assessment if at all; (2) the counties will be required to use the risk assessment selected by the State Court Administrator; (3) they are locked in forever, and if they want to cut their pretrial program later, they can’t because there is no waiver process later only up front; and, (4) no for-profit entities can be utilized in order to provide the actual pretrial services (e.g., GPS monitors, scram units, drug screening, alcohol monitors, etc.): “A GOVERNMENTAL ENTITY SHALL NOT ENTER INTO A CONTRACT WITH A FOR-PROFIT ENTITY TO PROVIDE PRETRIAL SERVICES.”  This also eliminates the use of a private probation company such as one some counties are using: RMOMS.

Finally, when counties start suing the State Court Administrator either for a waiver or for forcing them to do things they don’t want to do, the ultimate final authority on that will be the State Court Administrator’s boss: Chief Justice Nathan Coats and the Colorado Supreme Court.  This creates the total appearance of impropriety, and will make it difficult for counties because attorneys aren’t going to want to challenge the Chief Justice and State Court Administrator in federal court.

At the end of the day, regardless of where you come down on the whole bail reform debate, this is bad legislation.  If county officials do not contact their senators, this will be law in 45 days, and start a six-month clock running where all 64 counties will either be compliant or file a formal waiver request.  Instead, we encourage officials to take a look at our Fourth Generation of Bail Reform – a simple guide for state and local governments that protects the public interest, the due process rights of criminal defendants, and complies with the most recent U.S. Court of Appeals decisions regarding the constitutionality of bail.