What do legislators do when a bill faces so much opposition it cannot move? Create a diversion so the community thinks they prevailed while the legislature then tries to slip it through the back door with mere weeks to go in the session. That is exactly what Senator Pete Lee, egged on by the ACLU, is attempting to do. Enter Senate Bill 273.
Senate Bill 62, legislation that would have prohibited arrests in all misdemeanors and many felonies and create presumptive free bail in all felony 4-6 and misdemeanor and lower crimes was defeated by heavy grassroots community opposition and Colorado law enforcement.
On Friday, March 14, however, Senator Lee introduced a “new” bill, Senate Bill 273. This bill, he claims, is vastly different than the previous bill. Not so fast: the only real, substantive difference is that the prohibition on arrests in Felony 5 and 6 cases has been removed. In other words, restricting law enforcement power to arrest will not hit misdemeanor crimes and lower. That is the proverbial bone being tossed to law enforcement to go to “neutral” so that the bill can then pass. But law enforcement are smarter than that—they know that this bill, while it allows for a little more catch than Senate Bill 62, is still catch and release legislation.
On the presumptive free bail for all but felony 1, 2, and 3 crimes, nothing has changed. In fact, the issue is worse now—officers will be arresting F-5 and F-6 crimes, all of whom will show up for court with a presumption of a get-out-of-jail free card. All of the issues in the previous legislation still remain—most notably that victims’ rights act crimes, DUIs (including felony DUI), sexual offenses, gun and weapons crimes, are not exceptions in the bail section like they are in the arrest section and will show up court with a heavy presumption of a free bail. The ACLU of course continues to argue that judges will overcome the presumption, but as we have pointed out many times, the standard is much, much stricter than current law and will result in the majority of these crimes getting a free bail. We know this is the case—the ACLU wouldn’t run a bill that didn’t cause substantially more people to get out of jail for free.
So, it turns out this “substantially different bill” is really pretty much the same bill insofar as it has the same legal effect.
It is worth mentioning that the legislation does also create a new blue-ribbon panel: “Community Response to Low-Level Offenses Working Group.” This was such an important idea that, guess what? It was not included in the last bill. It’s also a bit of a headscratcher because the legislature already created the Colorado Commission on Criminal and Juvenile Justice roughly 15 years ago to create a partisan-free environment to study and recommend criminal justice reforms. If reforms are needed in the wake of the George Floyd tragedy, a point with which we do not argue and as the bill states directly, we have to wonder—why didn’t anybody bother to do anything about this since May 25, 2020? Where is the written request from Senator Lee to the CCJJ to study this that got denied? In fact, why was this not a first day bill if legislation was needed to conduct such a study? The truth: legislation is not needed—this is mere grandstanding.
What this all amounts to is one key thing: Senate Bill 273 is Senate Bill 62.
It’s time for local officials and grassroots organizations to redouble their efforts to stop this legislation. There is no need to restrict the power to arrest and, more importantly, to entirely restrict judicial discretion to impose appropriate bail as the constitution envisions in serious cases like felony DUI, sexual offenses, victims’ rights act crimes, crimes of violence, domestic violence mandatory arrest, weapons crimes and many others.
Changing the bill number doesn’t make the flawed concepts in the bill any different. The community and local officials need to let all thirty-five Senators know—we don’t need this legislation any more than we needed Senate Bill 62.
