by Pam Zubeck
DENVER – The Colorado legislature passed two pieces of legislation in recent days to protect the rights of poor and vulnerable defendants in Colorado’s municipal courts. Both bills await Governor Hickenlooper’s signature.We checked in with John Krieger of the ACLU and he tells us:
Nearly three-fourths of Colorado’s lawmakers supported HB16 – 1309 (fact sheet), a bill to safeguard the right to counsel in municipal court. In state and county courts, an attorney is available at first appearance to advocate for the release of jailed defendants and to advise those defendants on pleas when jail is a possible sentence. In almost all Colorado municipal courts, however, defendants must face the judge alone, must make arguments for release alone, and must decide how to plead alone. HB16 – 1309 requires counsel be provided at first appearance to defendants who cannot afford to bond out of jail on a minor municipal offense and who face a possible jail sentence.
Earlier today, the Colorado Senate voted 23 to 12 in support of HB16 -1311 (fact sheet), a bill to finally end the practice of jailing people who cannot afford to pay fines and fees in Colorado. In 2014, the legislature passed HB-1061 with near-unanimous bipartisan support, acting to end debtors’ prisons in Colorado. District and county courts followed that law, but municipal courts found a loophole to keep jailing people who are too poor to pay. HB16 - 1311 closes the loophole and finally ends debtors' prison practices in Colorado municipal courts.
ACLU of Colorado Public Policy Director Denise Maes issued the following statement:
“The American Civil Liberties Union of Colorado commends the Colorado legislature for coming together to protect the rights and liberties of Colorado’s most vulnerable defendants in municipal court.
"Being poor is not a crime. The ACLU of Colorado has found overwhelming evidence that poor people are often punished, and even jailed, by Colorado’s municipal courts just for being poor.
“Impoverished municipal defendants routinely plead guilty without the advice of counsel just to get out of jail, even when they are innocent. These same defendants often experience collateral consequences of their plea – including obstacles to employment, housing, and government benefits – that are never explained at court, due to the lack of counsel.
“Municipal courts continue to use jail and the threat of jail to collect debts from the poor, creating a two-tiered system of justice in which people who cannot afford to pay are imprisoned, while those with means simply pay their debt and move on with their lives.
“The steps taken by the legislature this session, if approved by the Governor, will reduce the number of innocent, unrepresented defendants who are wrongly jailed for crimes they did not commit and will finally put municipal courts in line with the well-established Constitutional principle that jail should never be used to collect payment from those who cannot pay.
“We strongly urge Governor Hickenlooper to sign both bills without delay, and we look forward to working with Colorado’s emerging coalition of reform-minded legislators on future improvements to make our courts and criminal justice system more fair, efficient, and consistent with Constitutional principles.”
Colorado Springs is an example of both the debtors’ prison practices and the consequences of municipal defendants pleading guilty because they never receive representation. We found hundreds of case where unrepresented defendants pled guilty to violating the solicitation laws even though they didn’t actually break those laws. Counsel would have prevented those pleas.
But we found many other examples, particularly when it comes to debtors’ prisons. Here’s a list of examples from the fact sheet –
CURRENT DEBTORS’ PRISON PRACTICES IN COLORADO MUNICIPAL COURTS
The following are examples of debtors’ prison practices by municipal courts in Colorado that post-date the May 9, 2014 effective date of HB 14-1061.
• Until recent intervention by the ACLU, the Colorado Springs Municipal Court was illegally jailing impoverished defendants when they were unable to pay court-ordered fines. Between January 2014 and October 2015, the City court illegally converted more than 800 sentences of fines into jail time when defendants were too poor to pay. In those cases, the defendants were ordered to “serve out” their fines in jail at a credit of $50 per day. One homeless individual was fined over $4500 for peacefully displaying a sign asking passersby for charity, and he spent over 90 days in jail to “pay off” these fines.
• Many municipal courts assess $50 to $100 in fees for “Failure to Appear” when a defendant misses a scheduled payment, often causing fees to mushroom and cases to drag on for years for poor defendants convicted of minor violations. The Aurora Municipal Court, for instance, sentenced indigent defendant James Fisher to a total of $703 in fines in 2012 for three municipal violations – two for open container and one for driving without proof of insurance. Over the course of the last four years, because Mr. Fisher has missed some of his monthly payment dates, he has been arrested three times and the Municipal Court has assessed a total of $1575 in additional fees. To date, Mr. Fisher has dutifully paid almost $1500 to the Aurora Municipal Court – more than double the amount of his original fines – but he still owes $860 and faces an outstanding warrant for his arrest, all because he is poor.
• Many municipal courts use bonds on FTA warrants for failure to pay solely as a debt collection tool, rather than as a method to secure a defendant’s appearance in court. Bonds in many municipalities are often set at the amount owed by the defendant so that the court can snatch the bond once paid and keep it to pay off the defendant’s fines. These bonds can function like a ransom – enlisting friends and families to pay the amount due, so that the defendant can get out of jail. In the words of a Wheat Ridge Municipal Judge on May 6, 2015: “We’ll take anybody’s money, so you can send someone.”
• Some municipal judges illegally threaten jail if defendants fail to pay, even if the judge knows the defendant is too poor to pay. At the Alamosa Municipal Court on January 26, 2015, for example, the judge warned a homeless, jobless defendant: “Now you have $270 in fines and costs, and if you’ve lost your job and are now homeless, how are you going to come up with that money? It’s going to be hard. But if you don’t pay that then I’m going to impose those 15 days in jail.”
• Judges threaten incarceration without giving notice to defendants of their right to a hearing on the issue of ability to pay. At the Wheat Ridge Municipal Court on August 27, 2014, the Judge said to a homeless man: “You know you’ve got a fine to pay, and all I can tell you is you better go get a job and [chuckles] pay it, because if you don’t then you get incarcerated.”
• Judges make inappropriate assumptions about ability to pay. For example, at the Alamosa Municipal Court on October 13, 2014, a juvenile defendant was chastised when she was late to begin community service. The judge threatened to incarcerate her parents, who couldn’t afford the program enrollment fee. After the hearing, the judge commented regarding the juvenile defendant’s mother: “She has some really nice gold earrings, if she shows up in court with those again, she doesn’t know this but that is evidence to me of ability to pay. They look real nice, but my question is going to be ‘Did you try to pawn those earrings?’ When the answer is no, that’s ability to pay.”