DENVER – The ACLU of Colorado sued Denver this morning on behalf of Mickey Howard, who was held in the Denver Jail for 5 days after a court ordered his release upon payment of a $10 bond, because he could not pay an additional $50 “bond fee.”

According to the lawsuit, Denver has a policy of continuing to imprison people who are unable to pay a $50 “bond fee,” even when they have the money to post the bond amount set by the court.

“Mr. Howard was arrested for two alleged violations of Denver ordinances. The court determined that he should be free while his case was pending upon payment of a mere $10, which Mr. Howard could pay. Yet, Denver continued to hold him in jail because he could not pay an additional $50 bond fee,” said ACLU of Colorado Legal Director Mark Silverstein. “Jailing people solely because of poverty, particularly when those individuals are pretrial and innocent in the eyes of the law, is cruel, fiscally irrational and violates the Constitution’s guarantees of Equal Protection and Due Process.”

According to the ACLU, when Mr. Howard entered the jail, he had $64, which was enough to pay the $10 bond set by the court as well as the $50 bond fee. At the time of booking, however, Denver took another $30 from Mr. Howard as a “booking fee.” That left Mr. Howard with only $34, which was not enough to buy his release.

The ACLU lawsuit identifies two Denver policies that caused Mr. Howard’s unlawful detention: (1) requiring defendants to pay a $50 bond fee, in addition to the monetary bond set by the court, in order to gain their release; and (2) taking $30 from defendants at booking even when doing so will make them unable to post bond and/or pay the bond fee.

After five days in jail, Mr. Howard was freed only because the Colorado Freedom Fund, a non-profit bail fund, paid the bond fee. It costs $70 per day for Denver to house an inmate. Over the five days Mr. Howard was in jail, Denver spent more than $350 to detain him because he could not pay a $50 fee.
All charges against Mr. Howard were eventually dismissed. However, Denver is currently billing him (and turning those bills over to collections) for more than $600 in additional fees that are related solely to the dismissed case.

“I am happy to be free, but it shouldn’t have taken the Colorado Freedom Fund to get me out,” Howard said. “I had the money to pay my bond, but the jail took it from me and wouldn’t let me out because I didn’t also have the money to pay their fee. That’s not right. I am filing this case to get justice for me and to make sure this doesn’t happen to other people.”

In August, El Paso County agreed, as part of a $190,000 settlement with ACLU of Colorado, to compensate 184 individuals who were held in the El Paso County Jail solely because they could not pay a $55 “pretrial supervision” fee.

“Colorado’s county jails are bursting at the seams, mostly with pretrial detainees who have not been convicted of a crime. Yet, we continue to see cases across the state of individuals held in jail not because they are a danger or a flight risk, but because they are too poor to pay a county fee,” said ACLU of Colorado Staff Attorney Rebecca Wallace. “These practices are illegal. It is past time for all counties, cities and sheriffs in Colorado to closely review their booking and bonding practices to ensure that they do not allow or facilitate incarceration based solely on poverty. Those that continue to illegally hold people in jail solely because they cannot pay fees should expect to be sued.”

The ACLU lawsuit was filed in federal district court. Howard is represented by Silverstein and Wallace of ACLU of Colorado.

more on this case

By Nathan Woodliff-Stanley, ACLU of Colorado Executive Director 

Would it surprise you to learn that even though Colorado was never a slave state, the Colorado Constitution still leaves a door open for legal slavery in this state? Colorado voters have the opportunity on November 6 to vote yes on Amendment A and close this constitutional loophole, finishing the constitutional abolition of slavery in Colorado. Along with the Abolish Slavery Colorado coalition and a wide array of bipartisan and nonpartisan supporters, the ACLU of Colorado endorses Amendment A to “prohibit slavery and involuntary servitude in all circumstances” in Colorado.

The problem is rooted in the politics surrounding the 13th Amendment to the U.S. Constitution, which abolished slavery after the Civil War. That amendment also abolished “involuntary servitude” to avoid slavery by another name. However, in order to get it approved, the amendment was modified to say, “except as a punishment for crime whereof the party shall have been duly convicted.” While some states do not have language echoing that exception, and some explicitly prohibit slavery with no exceptions, the Colorado Constitution uses the same exception allowing slavery as a punishment for crime.

Slavery is not a Colorado value, and it should not even be a possibility under the Colorado Constitution.

After the Civil War, many states, mostly former slave states, immediately exploited the 13th Amendment loophole allowing slavery and involuntary servitude as a punishment for crime. Many former slaves were arrested and then put back into slave labor conditions through convict leasing, a lucrative practice that generated more than 70% of total state revenues for the state of Alabama in 1898. From the 1920s through 1941, convict leasing was gradually eliminated through state laws and by presidential executive order. The constitutional loophole, however, was never removed.

In states such as Colorado that echo that loophole, as incredible as it may seem, slavery and involuntary servitude may not be fully unconstitutional. While of course we would hope our legislature and courts and correctional institutions would never allow it, it would not necessarily violate our constitution for prisoners to be bought and sold for slave labor by public or private prisons, or even put on the auction block and sold as slaves to the highest bidder, as long as it could be defined as a punishment for crime. We may think that could never happen, but in the context of today’s national politics, it is hard to feel comforted just by an assumption that something will never happen.

Slavery is not a Colorado value, and it should not even be a possibility under the Colorado Constitution. Colorado voters had the opportunity to make this change two years ago through 2016’s Amendment T, but the title and description of that amendment were confusing (“End Exception to Involuntary Servitude Prohibition”—at least a triple negative) and it barely failed by less than one percent of the vote. Surely Colorado voters did not intend to affirm slavery, but we will find out in November, because this time there is no excuse. “Prohibit Slavery and Involuntary Servitude in All Circumstances” is much less confusing, and it should be clear that a Yes vote on Amendment A is a vote to Abolish constitutional slavery in Colorado once and for all.

While some concerns were also raised in 2016 about prison work or service programs, it should be clear that desirable work programs or programs that people convicted of crimes agree to take part in would not be affected because they would not constitute involuntary servitude or slavery. Whatever our corrections system may be, even in areas where there is legitimate debate, we should all agree that it should never consist of actual slavery or involuntary servitude. Amendment A is a truly bipartisan measure that was passed unanimously by all Republicans and all Democrats in the Colorado legislature. It is more than a symbolic measure, because it closes the door on the possibility of future abuses, and it also sends a positive message in a time of great division in our nation. It recognizes the horror and suffering of those who have been enslaved in this nation, and it honors the legacy of Frederick Douglass, Harriet Tubman, William Lloyd Garrison, Silas Soule, Sojourner Truth, and thousands of others who fought and died for the abolition of slavery. Let’s get it right this time—vote Yes on Amendment A.

DENVER – The American Civil Liberties Union sent a demand letter today to Colorado State University urging the university to amend its campus police policies and training requirements following a racial profiling incident this spring.
On April 30, 2018, Kanewakeron Thomas Gray and Skanahwati Lloyd Gray, two Native American brothers touring Colorado State University, were racially profiled by another member of the admissions tour. Employees of the CSU police department detained, questioned and searched the Grays although they were never suspected of a specific crime. The brazen violation of the Grays’ Constitutional rights was rooted in the report of suspicion based only on their appearance.
“My boys were publicly humiliated and told that their looks alone make them suspicious characters. As a mother, I was horrified to hear they were pulled away from a CSU tour because of someone’s misplaced and racially motivated fears,” said Lorraine Kahneratokwas Gray, whose family is represented by the ACLU. “We are all disappointed, not only with CSU’s meager response, but also with their false promises to right this wrong. I hope they fix these policies, so other parents do not have to wonder if their children will be safe and welcomed on campus.”
The ACLU urges the CSU police department to implement additional trainings and adopt specific policies addressing dispatcher and officer responses to bias-based reports.
In response to the rampant cases of racial profiling on college campuses, including college staff calling police on a Smith College student for sitting on a sofa on campus, the ACLU is expanding upon its policy recommendations to CSU and plans to launch a full-scale ‘Living While Black on Campus” campaign. The campaign will be geared towards campuses that operate their own police and security forces, providing model policies for administrators and toolkits and resources for students who wish to advocate for change.
Read the ACLU letter: https://aclu-co.org/sites/default/files/wp-content/uploads/2018/09/9_20_18-CSU-letter-re-Gray-brothers.pdf