- Courtesy ACLU
- Jasmine Still has a felony due her inability to pay a $55 fee.
That's because the American Civil Liberties Union of Colorado is suing the county on her behalf. According to the suit, filed in federal court on Nov. 7, Still was kept in jail for nearly a month because she didn't have $55 to pay a pretrial services fee, even though a judge had ordered her to be released on personal recognizance, otherwise known as a PR bond (no-cost bail). This situation is common, costly to both the county and the accused, and unconstitutional, the ACLU alleges. It's the result of county policy that reserves the authority to waive these fees to two employees in the pretrial services department whose salaries depend on them.
The fees are just one of the problems with El Paso County's pretrial release system, which was criticized in an assessment that the National Institute of Corrections (NIC), an agency under the Department of Justice, published this summer. Not only did the report get into why "supervision fees [like the one charged to Still] are not a good practice," but it also found that "the vast majority of arrestees [are] not being assessed" for PR bonds in the first place, even on low-level, nonviolent offenses.
During the first quarter of 2017, NIC analysts found that only 15 percent of arrestees were assessed for no-cost bail, and of those only 8 percent were recommended for release on personal recognizance. According to the analysts, most defendants never get assessed for pretrial release because they must first clear another hurdle: A "narrow" set of criteria is used to determine eligibility for the full assessment. The analysts recommended that "the pretrial program should eliminate the eligibility criteria and assess all defendants arrested."
But the county didn't heed NIC's recommendations, leaving intact the rarely waived pretrial services fee and that extra layer in the risk assessment process. The result is indigent arrestees, who are presumed innocent, remain incarcerated, crowding the already-overcrowded El Paso County Criminal Justice Center.
The county, for its part, has an interest in letting low-risk arrestees bond out of jail, if not from a liberty standpoint, then from a logistical standpoint, given that overcrowding is such a persistent problem in the county jail. When it comes to solutions, county spokesperson Dave Rose says stakeholders are inclined to strategize better population management, since building or expanding the jail is "unbelievably expensive" and "voters aren't keen on that."
A PR bond releases low-risk defendants as long as they agree to show up for court and refrain from breaking the law. Criminal justice reformers believe it can be a better alternative to traditional bail, since pretrial release often means the defendant can keep their job and home and take care of other responsibilities, rather than sit in jail while problems compound. There's also evidence that unsecured bonds are just as effective in ensuring the defendant shows up for court without having committed another crime in the meantime.
In Still's case, a judge determined that she could get out, at no cost, under the supervision of El Paso County Pretrial Services. EPCPS is a program that supervises pretrial releases, to ensure compliance with court orders, and issues reminders about upcoming court dates. The county charges a $55 "pretrial services fee" that detainees must pay in order to be released, per the judge's order.
Still didn't have $55 on her or access to anyone on the outside who did, so she wasn't released on her own recognizance. While she was in jail, the ACLU's lawsuit says, her three children, including a newborn baby, were put into foster care, so she pleaded guilty to get out and fight for custody. In the end, Still pleaded guilty to felony possession, even though the prosecutor had offered her public defender the opportunity downgrade the charge to a misdemeanor on the condition that she have a residence, and either be working or going to school. If she had been released on the PR bond, as a judge had ordered, she would have had the opportunity to establish a residence and take the plea. Instead, she now has a felony conviction and a custody battle.
"Every day I was in jail, I thought there had to have been some kind of mistake," Still said in a release about the suit. "I am fighting back not just for me, but for all of the other people who El Paso County has kept in jail because they couldn't scrape together $55."
The county does, in rare cases, waive its $55 fee. But the ACLU contends the county's policy regarding the fee violates the equal protection and due process clauses of the U.S. Constitution because applying for a waiver is an obscure, unfair and inherently biased process.
The county maintains that authority to waive the fee lies exclusively with the two EPCPS employees, who are paid solely out of the fee revenue. According to the suit, there are no forms to request a waiver, no guidelines establishing a review process and no known factors that commissioners weigh when making a decision. "[The commissioners] have a personal financial interest in ensuring that waivers of the fee be granted as infrequently as possible," the suit says. "Such an interest gives rise to the strong probability of bias."
EPCPS produces daily lists of detainees with supervised PR bonds who couldn't afford to pay their pretrial services fee. ACLU examined those lists over a two-month period, finding a total of 51 individual defendants incarcerated under such circumstances for an average of 10.6 days. (Some, however, were locked up for more than a month and one was in for over 100 days.) "Extrapolated out, this data creates a strong inference that, during the course of the past year, El Paso County continued to incarcerate more than 300 inmates who had been granted a PR bond for a total of more than 3,000 days in jail solely due to inability to pay a pretrial services fee," the suit says.
Since a night in jail costs about $89, according to Sheriff's Office spokesperson Jackie Kirby, the county spent around $267,000 incarcerating people for not paying a fee that, if paid, would've brought in only $16,500 in revenue.
Rose says the county is interested in reexamining pretrial services, both to be fair and to help address overcrowding in the jail. It's due time, he says, because the pretrial services program was suspended in the early years of the recession and reinstated in 2015. As previously mentioned, that program supervises pretrial releases when their PR bond comes with conditions like attending substance abuse classes. Its only revenue source is the pretrial services fee that kept Still in jail.
The county's Criminal Justice Coordinating Council was resurrected this summer, in part, to consider changes to the program. County Commissioner Darryl Glenn, who chairs the council, told the Independent he "didn't want to get too close to the [ACLU] lawsuit" in commenting on potential reforms to the pretrial services fee, but did say to expect a recommendation from the council to increase funding for the pretrial services program. That request will come before the Board of County Commissioners, where he serves as president, in early December as part of the regular budgeting process. "I think it's a worthwhile investment regardless of the lawsuit," Glenn says.
About the lawsuit, Rose says, "the county would prefer to settle provided that's in the best interest of taxpayers ... and if that includes the notion that there ought to be some changes, well, that was already under consideration before the suit was served."