Legislation and a lawsuit

Will Colorado get weekend court?

Statue of justice

It all started on Aug. 23, 2019. Michelle Reynolds, a wife, mom and home-hospice care provider, was driving to Grand Junction for a niece’s volleyball game when she got pulled over for speeding. When the second officer arrived, she knew something was wrong. Before she knew it, she was arrested without any more information than she had a warrant out of Boulder County. But she didn’t live or work in Boulder County. None of it made sense. 

The first few days in jail were “horrific.” She was physically assaulted and traumatized by another inmate. On the fourth day, she was brought in front of a Mesa County judge, who didn’t approve her release, saying that since it was a Boulder County warrant, Boulder County had to deal with it. So she waited for a transport. More than a week passed. She still had no idea why she had been arrested in the first place.           Eventually she was picked up and taken to Jefferson County, where she spent another night waiting for the Boulder County transport. By the time it came, it was late and she had to spend another night in Boulder County Jail. The next day she went before a judge, where she was immediately given a personal recognizance bond (meaning she didn’t have to pay) and released. Soon after, the entire case was dismissed and sealed. 

“Fifteen days, 6 hours and 23 minutes that I spent in jail for no reason. That’s time I can’t get back,” she told the Colorado House Judiciary Committee on May 5. “More than just the financial burden of it, I lost me. I provide hospice care for those in the last minutes of their life and I am not emotionally strong enough to do that right now.” 

Reynolds was testifying in support of a proposed measure (HB21-1280) that would require initial bond hearings within 48 hours of an individual’s arrival to jail. It’s the same story laid out in a federal complaint filed by the ACLU against Mesa County Sheriff Matt Lewis, Boulder County Sheriff Joe Pelle and the chief judge in Mesa County, Brian Flynn. In seeking damages for Reynolds, it alleges that the sheriffs in particular knowingly failed to provide prompt and timely transport, according to communications exchanged between the two offices. 

“Basically they took their sweet time and they sort of agreed to take their sweet time,” says Mark Silverstein, ACLU of Colorado legal director, who is representing Reynolds. “The exigency should be apparent because somebody is sitting in a jail with no opportunity for pretrial release. So it’s like, come on, you need to get on it. Somebody’s liberty is at stake.”

The lawsuit, Silverstein says, is not only a way for Reynolds to “take some control of that experience and fight back,” but it also raises awareness of the issue HB-1280 is seeking to address. 

If passed, the bill would require jurisdictions around the state to hold weekend court proceedings in order to meet the 48-hour bond hearing requirement. It would also allow hearings to be conducted online or by phone and would create a statewide bond hearing officer position to conduct weekend and holiday hearings. 

Three Colorado counties — Weld, Jefferson and Denver — already hold weekend court, and at least seven different states and Washington D.C. already require a bond hearing within 48 hours of an individual’s arrival to jail. 

“This bill really makes no changes to what’s happening Tuesdays through Fridays,” says Denise Maes, public policy director of the ACLU of Colorado. “And so, we’re just saying that we want that to happen on the weekends.”

But the proposed measure has received some pushback from law enforcement and district attorneys across the state, who say it doesn’t provide any funding for their offices to staff weekends, and only a small number of cases would actually need to be heard on these days. 

Boulder County District Attorney Michael Dougherty says his colleagues across the state, in general, support the idea of timely bond hearings, but are concerned about the associated cost, especially in rural districts where one DA’s office can cover multiple counties. 

“I fully support this concept in this bill, but I also think it’s a mistake for the state of Colorado to just put that on counties, without accepting any responsibility for the good and positive changes we want to see happen,” he says. “It becomes an issue of staffing and finances, which is the less exciting part of criminal justice reform. But to me, an important part of making it last and making it sustainable.” 

Virtual hearings could alleviate some of this, Dougherty says, but not all. 

Boulder County Sheriff Joe Pelle says the measure could be a positive step for jails, in that the 48-hour requirement could alleviate overcrowding especially on holidays and three-day weekends. But it would also cost his office to staff up for weekend bond hearings. 

“The upside is people would get bonded sooner, spend less time in jail, cut down on our cost, and that kind of thing,” he says. “The downside is that the Sheriff’s office, the public defender, the district attorney and the courts, none of us are staffed for this on the weekends.”

Pelle says that in conjunction with other proposed legislation this year (HB-1211, which restricts the use of solitary confinement in jails, and HB-1250, which would change the way law enforcement is permitted to use deadly force), he’s concerned about how to fund the requirement for weekend bond hearings. 

“There’s a ton of data-gathering requirements. There’s a ton of staffing requirements and nobody’s putting up any money,” he says. “They’re just saying you have to do this.”

(Pelle didn’t comment on Reynolds’ complaint, other than to say it was a “systems issue.”) 

Dougherty adds that these weekend shifts would also cover a relatively small number of cases, especially compared to other jurisdictions that already hold weekend court. Silverstein, however, says that the ACLU of Colorado has heard of at least a half-dozen cases like Reynolds’ over the years, some of which have ended in lawsuits and settlements. 

“And I think that if we’ve heard of it happening that much, I think that means that it happens a bunch more. We’re not going to hear about every case,” Silverstein says.

For the ACLU, it’s a matter of constitutionally protected rights, of guilty until proven innocent and the right to a prompt bond hearing and pretrial release. 

And it’s up to the legislature, courts and counties to figure out how to pay for it. 

“We really believe that this is constitutionally required,” Maes says. “There are things in the constitution that are unfunded mandates, but they nonetheless are probably, in the long run, a lot cheaper than a lawsuit.”

As of press time, HB-1280 was still in discussions on the House floor.  

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