Hundreds of El Paso County inmates have endured "weeks and even months of senseless and illegal pretrial incarceration" because they cannot afford to pay a $55 release fee imposed by the county, the ACLU of Colorado said Tuesday in a federal lawsuit highlighting the practice's disproportionate effect on the poor.
The complaint, which names El Paso County as the sole defendant, was filed in U.S. District Court in Denver on behalf of Jasmine Still, a Colorado Springs woman held for 27 days after a court granted her pretrial release.
Although a judge ordered that she be let out of jail on a supervised personal recognizance bond - involving her signed pledge to attend court appearances on a pending drug charge - Still couldn't afford to pay El Paso County Pretrial Services and was deemed ineligible for release.
During a one-year period examined by the ACLU, the same issue kept up to 300 inmates in custody - some for more than 100 days.
The expense of incarcerating them - $88.72 per day per inmate - outstrips revenue from charging the $55 release fee, increasing costs for taxpayers, the complaint alleges.
"We want to put a stop to this practice of holding people in jail for lack of $55," said Mark Silverstein, the legal director for ACLU of Colorado, saying the policy "makes no sense legally, morally and ethically."
Silverstein suggested that the county hold off on collecting the fee until the conclusion of a criminal case, taking it out of the equation for pretrial release when public safety isn't a concern.
El Paso County spokesman Dave Rose declined The Gazette's request to interview a representative of Pretrial Services. He said the El Paso County Attorney's Office was reviewing the allegations, but wouldn't discuss details of pending litigation.
Instead of posting a cash bond, a defendant who is granted a personal recognizance bond signs an agreement to appear in court and to comply with any release conditions. Supervised personal recognizance bonds involve additional oversight by Pretrial Services workers, sometimes including drug and alcohol monitoring.
Judges and the El Paso County Sheriff's Office are aware the fee has extended inmates' stays in jail, but say they have no authority to waive it under county policy, perpetuating a system that punishes the poor, the ACLU said.
Procedures for contesting the fee or pursuing a waiver are "murky, at best" and the decision lies solely with two county employees whose salaries are partly funded through the fees, the group alleges. Rose disputed that claim, saying there is a policy in place for requesting a waiver, but acknowledged that he couldn't say if it was in effect when Still was held in jail. Rose did not immediately respond to a follow-up request seeking a written policy on the waiver process.
As of Tuesday, the jail held at least six people who had been granted supervised personal recognizance release but couldn't afford the fee, the complaint alleged.
Silverstein said he is aware of no other county in Colorado that assesses the fee or makes personal recognizance bonds dependent on cash payments.
The ACLU also is seeking a monetary award for Still on grounds the fee violated her constitutional guarantees to due process.
Her extra month in jail kept her apart from her newborn, and child custody proceedings were initiated against her during that time, the ACLU said in a news release. She ultimately decided to plead guilty to a felony drug charge in order to fight for custody of her children, costing her the opportunity to accept a misdemeanor plea offer that depended on her being employed, the ACLU said. The child custody action is pending.
The lawsuit comes at a time of increased scrutiny over requiring pretrial detainees to post cash bonds, a practice that has been criticized for keeping the poor behind bars while giving the well-heeled a ticket out of jail.
A Commission on Criminal and Juvenile Justice task force found this summer that El Paso County offered personal recognizance bonds to 6 percent of detainees from 2014-2016, the lowest figure in the state.
All other inmates were released on cash bonds.