November 29, 2019 — Implementing any mandate requiring defendants to have a bond hearing within 48 hours of arrest would necessitate substantial resources, and all but two of Colorado’s judicial districts would be severely affected, a recent report found.
The report, issued by the Office of the State Court Administrator in response to recent legislation, confirms what officials in the 7th Judicial District feared ever since the Prompt Pretrial Liberty and Fairness Act raised the possibility: space, staffing, costs — and even broader issues related to laws ensuring victim rights.
A provision of the act required chief judges to look at the feasibility of holding bail hearings within 48 hours of a person’s detention.
“This is a collision of priorities, which is exactly what the Legislature is supposed to wrestle with and figure out,” District Attorney Dan Hotsenpiller said.
Through the Prompt Pretrial Liberty And Fairness Act, the Legislature directed the chief judges of all 22 judicial districts to develop a plan for setting bond for all in-custody defendants within 48 hours of arrest; this plan required cost estimates as well as potential savings in such areas as jail-bed costs.
The Office of the State Court Administrator undertook a survey of chief judges and earlier this month presented the required report to the chairmen of the House and Senate Judiciary Committees.
In the 7th Judicial District — spanning about 10,000 square miles in mostly mountainous terrain — the estimated annual costs of holding weekend courts to accommodate a 48-hour timeline for bond hearings is $305,111, based on a regional strategy and the costs to the five of the district’s six counties where court is held.
Only in Montrose County would there be any savings from releasing people from jail on expedited bond hearings; that estimate is $9,360, while in Gunnison, the projected possible savings is so nominal that it would account for only a few inmate meals, the 7th’s plan said.
The local plan also assumes being able to regionalize weekend courts, with each of the 12 district judges in the six counties taking weekend hearings on a rotational basis. The hearings would be held at whatever courtroom where the on-call judge typically presides.
“For most courts, a significant challenge for implementing this requirement is creating a space that is safely open and accessible to all necessary and legally allowed parties during times that courts are not currently being used,” the state court report states.
On a practical level, that means finding staff to work and courtrooms that can be open and operated on weekends.
The report noted that would in turn affect recruitment and retention of staff, particularly in mountainous areas and resort towns — and would be further exacerbated in rural districts, which might have only one staffer filling a particular role. That situation would in effect require that person to work seven days a week or be on call.
Other affected services are constitutionally mandated interpretation services for those who are not conversant in English. Meeting that mandate is already a challenge and adding more court days will increase the difficulty, the report found. Again, rural areas take more of a hit and Montrose would have to hire more staff.
“Weekend, on demand access to interpreter services for languages other than Spanish, particularly in rural areas, will be difficult if not impossible to meet within a 48-hour requirement,” the document states, also stating that interpreter costs will likely rise.
“It’s not a good deal for rural Colorado, for sure,” Sen. Don Coram, R-Montrose said, of the report’s findings.
The report further assessed the anticipated ability to comply with both a 48-hour bail requirement and the Victims Rights Act.
The VRA, among other provisions, requires prosecutors to inform the victims of certain levels of crimes of all critical stages of proceedings, so they can be present if desired. The setting of bond is one such critical hearing and any hearing involving a modification to bail conditions or reduction in bail amount triggers the VRA in cases that are VRA-eligible.
“Holding bond hearings over the weekend within 48 hours may negatively impact or impair a victim’s full and voluntary cooperation and rights outlined in the VRA,” the State Court Administrator’s report says.
“These are all considerations I was concerned about; in particular, the VRA compliance issues were what I urged senators and representatives to consider,” Hotsenpiller said. “The reality is, we have to decide what’s most important and what are our priorities.”
Hotsenpiller also pointed out that crimes like domestic violence require a defendant to be held without bail until he or she appears before a judge, and said such crimes also require a protection order to be issued.
“If we’re going to do that, then imposing the protection order should be done in a meaningful way. You have to contact the victims. Victims have to have a meaningful right to address the court,” the DA said.
“If we’re going to have that first appearance Sunday in Gunnison because that is the only court available, and that offense occurred in Norwood … how meaningful is going to be that opportunity to address the court?”
In the 7th Judicial District plan contained in the state court administrator’s report, Chief Judge J. Steven Patrick noted that just last winter, the San Miguel County courthouse had to close for two days because of snow, while the highway into Hinsdale County was closed several times because of accidents and avalanches, precluding the DA and public defender from reaching court. The bill that required the plan did not provide waivers or extensions to the 48-hour timeframe, Patrick said, even though the realities of weather and travel could make holding the hearings within 48 hours “impossible or impracticable.”
Patrick also said he’s concerned that the new law does not contain a provision for dealing with defendants who are incapacitated or incompetent to participate in a bond hearing. He, too, raised issues with the Victims Rights Act.
Additionally, the new law does not specify when the 48-hour timeframe for bond begins — whether it is immediately upon arrest, or when a person is booked into a jail, Patrick said. If it’s the former, that poses a problem for situations in which the inmate was arrested in Ouray or Hinsdale counties, which do not have their own jails, but instead, contract (respectively) with Montrose and Gunnison counties.
The state court administrator’s report also says audio visual technology will be needed to make weekend bond hearings accessible. The equipment alone is estimated to cost $4.1 million, plus more staff would be needed to manage it.
The report offered possible strategies including regionalization with rotating judges and court staff, as Patrick and other judges had suggested in their individual plans. This would require “robust audio-visual capability” as well as statutory exemptions for cross-jurisdictional matters.
Another alternative the report suggests is establishing statewide pretrial services and a bond commissioner to take some of the pressure off the courts.
“What we are hopeful of is they do not simply issue new mandates without considering priorities and the effect of issuing new mandates, without providing the tools necessary to meet them,” Hotsenpiller said.
The need for more full-time equivalent employees under a 48-hour bond hearing requirement concerned Montrose County Commissioner Keith Caddy when he spoke with Gov. Jared Polis last week. Caddy reminded Polis of the vast swath of territory the 7th Judicial District covers — Montrose, Delta, Hinsdale, Gunnison, Ouray and San Miguel counties.
“There’s logistical issues and I know courts have problems figuring out how to get the full-time equivalents in smaller, rural districts,” he said.
“We’re hoping for your support on that.”