DENVER – The Colorado legislature passed two pieces of legislation in recent days to protect the rights of poor and vulnerable defendants in Colorado’s municipal courts.  Both bills await Governor Hickenlooper’s signature.

Nearly three-fourths of Colorado’s lawmakers supported HB16 – 1309 (fact sheet), a bill to safeguard the right to counsel in municipal court.  In state and county courts, an attorney is available at first appearance to advocate for the release of jailed defendants and to advise those defendants on pleas when jail is a possible sentence.  In almost all Colorado municipal courts, however, defendants must face the judge alone, must make arguments for release alone, and must decide how to plead alone.  HB16 – 1309 requires counsel be provided at first appearance to defendants who cannot afford to bond out of jail on a minor municipal offense and who face a possible jail sentence.

Earlier today, the Colorado Senate voted 23 to 12 in support of HB16 -1311 (fact sheet), a bill to finally end the practice of jailing people who cannot afford to pay fines and fees in Colorado. In 2014, the legislature passed HB-1061 with near-unanimous bipartisan support, acting to end debtors’ prisons in Colorado.  District and county courts followed that law, but municipal courts found a loophole to keep jailing people who are too poor to pay. HB16 - 1311 closes the loophole and finally ends debtors' prison practices in Colorado municipal courts.
 

ACLU of Colorado Public Policy Director Denise Maes issued the following statement:
“The American Civil Liberties Union of Colorado commends the Colorado legislature for coming together to protect the rights and liberties of Colorado’s most vulnerable defendants in municipal court.

"Being poor is not a crime. The ACLU of Colorado has found overwhelming evidence that poor people are often punished, and even jailed, by Colorado’s municipal courts just for being poor.

“Impoverished municipal defendants routinely plead guilty without the advice of counsel just to get out of jail, even when they are innocent.  These same defendants often experience collateral consequences of their plea – including obstacles to employment, housing, and government benefits – that are never explained at court, due to the lack of counsel.

“Municipal courts continue to use jail and the threat of jail to collect debts from the poor, creating a two-tiered system of justice in which people who cannot afford to pay are imprisoned, while those with means simply pay their debt and move on with their lives.

“The steps taken by the legislature this session, if approved by the Governor, will reduce the number of innocent, unrepresented defendants who are wrongly jailed for crimes they did not commit and will finally put municipal courts in line with the well-established Constitutional principle that jail should never be used to collect payment from those who cannot pay.

“We strongly urge Governor Hickenlooper to sign both bills without delay, and we look forward to working with Colorado’s emerging coalition of reform-minded legislators on future improvements to make our courts and criminal justice system more fair, efficient, and consistent with Constitutional principles.”

RESOURCES:
ACLU fact sheet on HB16 – 1309, a bill to safeguard the right to counsel in Colorado municipal courts
ACLU fact sheet on HB16 – 1311, a bill to end debtors’ prisons in Colorado
 

DENVER – The Colorado State Supreme Court today decided to let stand an appellate court ruling that Masterpiece Cakeshop violated Colorado’s anti-discrimination law when it refused to sell a same-sex couple a cake for their wedding reception.

“The highest court in Colorado today affirmed that no one should be turned away from a public-facing business because of who they are or who they love,” said Ria Tabacco Mar, staff attorney for the American Civil Liberties Union’s LGBT Project, who argued the case. “We all have a right to our personal beliefs, but we do not have a right to impose those beliefs on others and discriminate against them. We hope today’s win will serve as a lesson for others that equality and fairness should be our guiding principles and that discrimination has no place at the table, or the bakery as the case may be.”

In 2012, Colorado residents David Mullins and Charlie Craig, along with Charlie’s mother Deborah Munn, visited Masterpiece Cakeshop to order a wedding cake. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home. Masterpiece Cakeshop owner Jack Phillips informed the couple that, because of his religious beliefs, it was his standard business practice to refuse to provide cakes to customers for same-sex weddings. Phillips has turned away several other couples for the same reason.

Colorado’s Anti-Discrimination Act prohibits businesses, such as Masterpiece Cakeshop, from refusing service based on factors including race, sex, national origin, or sexual orientation. The American Civil Liberties Union and the ACLU of Colorado filed suit on behalf of Mullins and Craig in 2013. In December 2013, an administrative judge ruled that the bakery had illegally discriminated against the couple.

In 2014, the Colorado Civil Rights Commission affirmed that ruling. Masterpiece Cakeshop appealed. In a unanimous decision issued on August 15, 2015, the Colorado Court of Appeals ruled that the bakery unlawfully discriminated against Mullins and Craig by refusing to sell them a cake for their wedding reception.

When businesses and other institutions that serve the public have sought exemptions to laws barring discrimination based on sexual orientation and gender identity, the courts have held that businesses are required to comply with anti-discrimination laws. The courts have ruled without regard to whether LGBT people could have obtained the goods or service elsewhere. Instead the courts have recognized the harm to equal opportunity if lesbian and gay people can be turned away from businesses otherwise open to the public because of who they are.

more on this case

JAILED DEFENDANTS TOO POOR TO BOND OUT REQUIRE COUNSEL AT FIRST APPEARANCE

The U.S. Supreme Court has held the first appearance in court is a “critical stage” where the defendant’s right to counsel attaches. A defendant’s first appearance involves much more than an advisement of rights, and often results in a guilty plea. At this stage, counsel can advocate for reduced bond, ensure the defendant is not inappropriately pressured to plead guilty, advise defendants on the collateral consequences of a guilty plea, and guard against wrongful convictions.
Municipal courts stand alone in denying in-custody defendants counsel at first appearance. In state and county courts, the public defender is available at first appearance to advocate for release of jailed defendants and to advise these defendants on possible pleas when jail is a possible sentence. In almost all Colorado municipal courts, however, municipal defendants must face the judge alone, must make arguments for release alone, and must decide how to plead alone.
Impoverished municipal inmates frequently plead guilty just to get out of jail. Appearing alone before a judge, municipal defendants face a terrible choice: ask for counsel and return to jail until your next court appearance when counsel will be present OR plead ‘guilty’ and get out of jail quicker. Understandably, most municipal defendants simply plead guilty at first appearance to secure their fast release from jail, even those who are innocent and have strong legal defenses.

HB 1309 BRINGS FAIR AND CONSTITUTIONAL PRACTICES TO MUNICIPAL COURTS

HB 1309 ensures counsel at first appearance to the most vulnerable defendants. It requires counsel be provided at first appearance to those defendants who are so poor that they cannot afford to bond out of jail on a minor municipal offense and who face a possible jail sentence.
HB 1309 ensures all defendants in Colorado have the same access to counsel. Unlike municipal courts, Colorado’s state and county courts already automatically provide counsel to criminal defendants at their first court appearance when they are too poor to post bond and face a possible jail sentence. This bill creates parity between municipal courts and all other Colorado criminal courts.
HB 1309 brings Colorado’s municipal courts in line with constitutional standards. By providing counsel at first appearance, when most municipal defendants plead guilty, municipal courts come in line with Supreme Court caselaw holding that first appearance and guilty pleas are “critical stages” where the right to counsel attaches.

HOW MUNICIPALITIES MAY AVOID POTENTIAL COSTS ASSOCIATED WITH IMPLEMENTATION OF HB 1309

**While costs should never excuse failure to meet constitutional standards or failure to ensure fairness in criminal proceeding, municipalities have several ways to avoid significant expenditures in implementing the provisions of HB 1309.

1. Municipalities may designate all or many city offenses as non-jailable. The bill does not require appointment of counsel for individuals held for a non-jailable offense. Most municipal ordinances regulate non-violent conduct that, standing alone, poses no threat to public safety – such as park hours restrictions and limitations on panhandling. Municipalities may choose to designate such ordinances as infractions that are not punishable by jail. Colorado Springs and Arvada are examples of cities that have amended their municipal codes to make many city offenses non-jailable.
2. Municipal prosecutors may waive jail for all or most city offenses or may waive jail for any individual who is still in custody at the time of first appearance. The bill does not require appointment of counsel for individuals who do not face a possible jail sentence, even if held in jail for failure to appear.
3. Municipal courts may immediately or at first appearance release all individuals arrested for a municipal offense on a personal recognizance bond or unsecured monetary bond. The bill does not require appointment of counsel for individuals who are not in custody.
4. Municipal police may issue citations for municipal ordinance violations instead of making custodial arrests. For serious offenses, municipal police may charge violators under Colorado law, rather than municipal law. As a result, the state public defender’s office – rather than the municipality – would then be the entity responsible for appointment of counsel at first appearance for those in custody. Some smaller municipalities, such as Hooper and Morrison, have already adopted this practice.