By Michael Booth
Michele Silva seemed to be doing her best to answer to the government for traffic tickets and a petty theft charge in her hometown of Alamosa, Colo. in the San Luis Valley.
An itinerant worker in seasonal harvests and manufacturing, Silva nevertheless scraped together $600 for court fines, and disrupted her already tenuous life a dozen times for judge-mandated appearances and payment hearings.
It was never enough.
A municipal judge issued a warrant for her arrest in 2015 for failure to show at scheduled payment appearances. When she tried to make a payment in January 2016, she was arrested on the warrant at the clerk’s window. After missing another payment review on the remaining debt, she was arrested again, asked to post a $1,000 bond, and jailed for 14 days when she couldn’t raise it.
All this for underlying offenses for which civil rights lawyers say it is against Colorado law to apply a jail sentence—a seat belt infraction, a child safety-seat infraction and theft of less than $100.
San Luis Valley attorney Alex Raines has represented dozens of clients with troubles similar to Silva’s, and alternates between anger and weariness at the collections and imprisonment practices of some Colorado municipal courts. Defendants may fail to appear for the payment hearings—sometimes scheduled every month for years on end—because they are in drug rehabilitation, imprisoned elsewhere, lack transportation or fear missing work.
“It’s trying to get blood from a stone,” Raines said. “Really? You’re going to spend $500 incarcerating them because you’re trying to get $200 they don’t have? Stop. Just stop. There’s plenty of better ways to redirect the resources.”
The Colorado office of the American Civil Liberties Union (ACLU) cited repeated abuses of constitutional principles and judicial precedents by local courtrooms operating “like a fiefdom, trampling on the rights of criminal defendants,” in a report published in October 2017. Silva and many others told their stories to ACLU of Colorado researchers. (Silva and others in this article were either unable or unwilling to comment further, citing pending litigation in some cases.)
From Alamosa to Northglenn to Colorado Springs to Westminster, municipal courts and county jails have routinely imprisoned people living in poverty for lacking resources to pay fines or make bond, the ACLU of Colorado report found, violating basic assumptions that the rule of law in the United States does not tolerate debtors’ prisons.
Moreover, while some systemic abuses have been clear enough to prompt bipartisan fixes at the state legislature, recent reviews by the ACLU of Colorado claim to show judges and administrators exploiting loopholes to continue jailing people living in poverty not for alleged offenses, but for being unable to afford to pay subsequent fines and fees.
Jail time for failing to pay fines stemming from petty offenses takes its toll on the physical and mental health of Colorado families. The ACLU of Colorado found that mothers have been locked away from their newborn babies; drug addicts decline or depart rehabilitation stints in order to make court-ordered payment hearings; prisoners lose jobs and child custody, and lengthening records cut them off from future employment.
Research has also found that pre-trial jailing of those who simply can’t make a cash bond leaves defendants living in poverty more likely to plead guilty and suffer the longer-term consequences of prison sentences and criminal records. High incarceration rates throughout the U.S. also impact the defendants’ neighborhoods, while they are gone and when they return home.
“Over the last 40 years the criminal justice system has expanded to such a degree that, today, mass incarceration is one of the major contributors to poor health in communities,” said a recent report by The Vera Institute of Justice, a nonprofit prison reform organization. An American Journal of Public Health report said research suggests “the public mental health impact of mass incarceration extends beyond those who are incarcerated.”
“Poverty should not be the reason that people are in jail,” said Mark Silverstein, legal director of the ACLU of Colorado. “It’s not right to have a two-tier system of justice—one that’s easy for people with means to navigate, and one that traps poor people in jail or in a series of other consequences because of their poverty, not because of a particular conduct.”
Debtors’ prison traps violate the U.S. Constitution in two key ways, the ACLU of Colorado asserts: Denying the equal protection clause by granting wealthier people easier access to liberty; and trampling the due process clause by failing to let defendants appear in court to detail their poverty in the face of steep fines.
“We had evidence from all over the state,” said ACLU of Colorado staff attorney Rebecca Wallace. “It was shocking to us how blatant these violations were, and it gave us insight into how little oversight and regulation there is into municipal courts when they are under bad leadership.”
In other states’ urban areas where the ACLU has been researching debtors’ prison cases, the advocacy group has also pointed out the inherent racial inequities that result from the practices. Since people of color in many parts of the U.S. are arrested and jailed at higher rates than whites, they also suffer more from specific, burdensome court rules and practices.
People of color can also suffer from inequity in how justice is applied in pretrial phases, according to another study by The Vera Institute for Justice. Felony defendants in New York were significantly less likely to be released on their own recognizance before trial if they were African-American, the study said.
The ACLU of Colorado said it did not analyze the municipal court debtors' cases by race or ethnicity. But based on their own experience and results of national criminal justice studies, the local ACLU officials said they believe jailed-for-debt issues do affect people of color more than whites in Colorado.
The ACLU of Colorado report and recent national news stories highlight a series of local court practices that amount to recreating debtors’ prison conditions:
- Issuing warrants to arrest people convicted of petty misdemeanors for “failure to pay” or “failure to appear” for payment conferences, when those defendants clearly had no ability to pay.
- Jailing those who claimed an inability to pay fines and fees, and using each day in jail to erase $50 of the debt.
- Failing to release pretrial defendants on personal recognizance bonds in minor misdemeanor cases, and instead demanding cash bonds that the defendants could never afford. The ACLU of Colorado estimates 50 to 70 percent of Colorado local jail populations are pre-trial defendants who live in poverty and could not afford even minimal bond.
- Probation systems in other states contracting with privatized probation services that charge high fees to clients and can force the clients back to prison for failing to pay.
The October report on Colorado’s 220 municipal court systems gathered evidence in particular on Alamosa’s court, because of what it called “the seriousness and frequency of its violations of criminal defendants’ rights” by its only judge, local attorney Daniel Powell.
Powell, who until recently split his time between private law and a schedule as municipal judge for both Alamosa and Monte Vista, meted out “the harshest penalties for conduct that is usually minor, non-violent and poses little or no risk to public safety,” the ACLU of Colorado report claimed.
The report called out Powell and Alamosa for imposing high fees and fines, demanding unmeetable payment plans, piling on fees for missed payments, requiring years of disruptive appearances for payment advisement, and frequent arrests for failing to pay.
Powell did not return phone calls or emails to his law office. He resigned from the Alamosa judgeship position effective at the end of 2017, according to Colorado Public Radio, and Alamosa has already installed a new city judge in his place.
Ashley Medina is one of the San Luis Valley residents profiled in the ACLU of Colorado report, and her family told the Alamosa court that she was struggling with addiction and trying to get treatment despite Medicaid not paying for it. Medina had $800 in court fines and late fees for three petty theft convictions, and over time scraped together $259 in payments.
But in 2015, Medina was arrested on a bench warrant for failure to pay. She waited six days to see the judge, then was given a $1,000 bond that took her family another seven days to put together. Months later, she was again arrested for failure to pay, and spent 23 more days in jail waiting for a hearing date and for her family to raise bond.
In all, she spent 36 days in jail associated with the original $800 in fines.
Alamosa’s city government has taken the report seriously and moved to make changes, though it chastised the ACLU of Colorado for “blindsiding” the city with the report, and failing to account for sometimes-lengthy criminal records of the highlighted defendants. The court is already reforming practices, and outside judicial experts have been called in as consultants. City officials also said they are constantly balancing defendant rights with local calls to be tough on crime.
The San Luis Valley is one focal point of a nationwide opioid epidemic that community leaders say is feeding rates in addiction, theft, trespassing, drug-affected newborns, domestic disturbance and other incidents that can decimate a community.
“We have victims in our community that are being stolen from, vandalized. There is a need to get justice for the victims, and to prevent the crime from happening again,” said Alamosa City Manager Heather Brooks.
The ACLU of Colorado report “does not capture the type of court we really have. Do we have a court that can improve its processes? Absolutely,” Brooks said. But, she added, the report “did not capture the full feel of what’s going on.”
Long before the report, Brooks said, Alamosa had launched a diversion program for youth offenders that would keep them from a court record and instead provide support services. Alamosa is now expanding that to many adult defendants.
In the last few months of 2017, city staff and city council met with Powell multiple times to talk about the practical workings of the court and judicial philosophy about handling disadvantaged defendants, Brooks said. The council is studying the possibility of decriminalizing numerous municipal offenses, including some minor traffic violations and criminal charges. The latter category, Brooks said, is often driven by “addiction or other poor life choices, such as petty shoplifting and trespass.”
In early November, Alamosa also signed a long-planned contract with a community corrections agency to keep minor offenders out of jail entirely, including day-release for work and expanded support services.
Local defense attorney Raines said Alamosa does appear to be moving ahead on reforms, but he resents city officials responding to criticism by blaming the defendants. The official city response to the ACLU of Colorado report attached the wider criminal histories of many of the people cited as debtors’ prison examples.
“Their response to the ACLU report was deplorable,” Raines said.
The ACLU of Colorado said it is pleased to see Alamosa modifying its municipal court practices, but added that it is important to preserve defendants’ rights even when they have troubled backgrounds.
The argument that the court “was doing some larger public good by considering the broader criminal background, for stealing a Slurpee, does not pass the smell test, and is not an appropriate use of judicial power,” Wallace said.
“Issuing a failure-to-appear warrant for an individual while that patient is in inpatient drug rehab is wrong. You can’t explain away each of these instances by saying, ‘that person was a really bad guy.’”
Reformers have also targeted El Paso County in recent months, documenting and criticizing the county court’s practice of holding pre-trial defendants in jail for weeks—even after a judge had released them on personal recognizance—simply because they did not pay a $55 pretrial services fee.
A National Institute of Corrections consultant warned the county in June that judicial rights advocates in many other states were filing lawsuits over similar fees.
The ACLU of Colorado filed a federal suit in November, claiming El Paso County violated the rights of Jasmine Still and other defendants by jailing them over the fee even after a judge had allowed their release.
Still was originally arrested on a methamphetamine possession charge. A judge decided she posed no harm or flight risk and could be released. She was in jail for 27 days over a $55 pretrial fee, while her newborn child was cared for by others. The lawsuit claims other defendants were held up to 119 days for failure to pay the same fee.
“I didn’t think you could jail someone just because they were poor,” Still said in a statement when the lawsuit was filed.
El Paso County spokesman Dave Rose said the fee system has been mischaracterized, and that defendants could always seek a waiver for the fees and be released. Others have noted, however, that recommendations to waive fees were made by county employees in an office where supervision costs are “offset” by the fees, and that the waiver system is a mystery to defendants.
The county’s chief judge halted the practice of holding people for fees in an order on Nov. 16. Rose said that El Paso County is also moving forward on an expansion of pretrial services planned before the ACLU of Colorado lawsuit. The expansion, after years of contraction forced by Great Recession budget cuts, “will allow supervised release pending trial for many more people than our current minimum-level program,” Rose said.
ACLU of Colorado attorneys said their research shows many courts are still using practices meant to be stopped by recent state legislature fixes. The legislature passed a bill in 2014 requiring judges to hold a hearing on whether a defendant could actually afford fine payments. Defendants couldn’t be jailed without such a hearing.
According to the ACLU of Colorado, the law left a loophole exploited by municipal judges: They often stretched out payments and demanded defendants show up for each payment date; if they did not, they could be arrested on a failure-to-appear warrant. In 2016, the legislature closed that loophole and required better access to public defenders.
Alamosa, among others, did not appear to heed the new legislation entirely. Erich Schwiesow, Alamosa’s city attorney, said a staff review found “a handful” of cases violating the new law after it went into effect in January. “That is an issue we have absolutely addressed,” said Schwiesow.
A number of Colorado local courts are working on reforms, the ACLU of Colorado’s Silverstein acknowledged. “We still have a long way to go,” he said. The ACLU of Colorado and allies will continue efforts on bond reform, to both relieve jail overcrowding and give pretrial defendants their best chance to participate in their defense, maintain jobs and keep families together.
“Fifty to 70 percent of prisoners in Colorado’s overcrowded jails are in jail only because they can’t come up with money for bond. They are innocent in the eyes of the law,” Silverstein said. “It’s another form of debtors’ prison.”