Colorado Senate Bill 62 exemplifies just how radical criminal justice reform proposals have become. Ostensibly about bail reform and managing jail populations across the state, the bill, on closer reading, reveals its real aim: to eliminate police discretion to make arrests—even for serious felonies.
With certain exceptions, the bill “prohibits a peace officer from arresting a person based solely on the alleged commission of a traffic offense; petty offense; municipal offense; misdemeanor offense; a class 4, 5, or 6 felony; or a level 3 or 4 drug felony” [emphasis added]. In Colorado, these crimes include most burglaries and auto thefts, along with many activities that would constitute felony arson. In other words, not only would police no longer be able to arrest suspects for minor offenses and serious misdemeanors; they also wouldn’t be able to arrest burglars, arsonists, and car thieves—even if the offenders are caught in the act. Police would be able only to issue a summons—the functional equivalent of a traffic ticket.
Last year, cities across Colorado sought to reduce jail and prison populations to prevent the spread of Covid-19, offering a kind of trial run for the bill currently under consideration. The results haven’t been encouraging. In Denver, where authorities limited arrests in an attempt to stem the spread of Covid-19 in the jail system, auto thefts rose an incredible 58 percent, while burglaries jumped by 32 percent. According to official data from the Colorado Department of Public Safety, between 2019 and 2020, auto thefts in the state rose by 39 percent, while burglaries increased by over 14 percent. Social scientists might argue that it is hard definitively to link this surge in property crime to fewer arrests by police, but most reasonable people would admit these numbers are heading in the wrong direction.
Research shows that perpetrators of property crimes are especially likely to reoffend. Burglars, for example, are often brazen career criminals who repeatedly victimize the same communities—and often the same victims. Others are troubled individuals who invade the property of victims seeking valuables they can sell to finance drug habits, or who search for firearms they can use for other serious crimes. It is hard to imagine a police citation deterring such individuals.
The bill’s proponents also don’t seem concerned with the effect that offenses like these have on victims, many of whom experience serious emotional trauma that far exceeds any financial losses. Psychological research shows that feelings of fear, anger, and helplessness are common and long-lasting among victims of burglary. Imagine an officer telling a victim whose property has just been ransacked that police have identified the suspect . . . and given him a ticket. Supporters of the bill also seem unfazed by the fact that burglaries and other property felonies are much more common in poor, urban communities, which will thus suffer the most from repeat offenses.
While the ban on arrests for many felonies is troubling in itself, equally concerning is the bill’s provision that, aside from narrowly defined exceptions, officers should no longer be permitted to make arrests for any misdemeanors or other minor offenses. Fighting in public, indecent exposure, menacing another person, reckless endangerment, third-degree assault—these and other offenses fall into this broad category.
The discretion to arrest regardless of the type of offense gives police officers a provisional solution to what are often complex community problems. Unlike prosecutors, defense attorneys, and judges, cops generally don’t have the luxury of consulting others, deliberating for extended periods, or postponing events. The arrest option thus becomes one of several alternatives for practically and efficiently managing complicated issues involving lawless behavior.
Though officers certainly consider factors like the seriousness of the offense or the strength of the evidence, research clearly shows that they tend toward leniency, especially when it comes to minor offenses. Police are more inclined to deal with disorder informally by seeking alternatives like issuing warnings, making referrals, or instructing citizens about the law and the consequences of breaking it. Police policies should therefore encourage the proper use of discretion when it comes to managing lawlessness and issuing arrests. Citizens support police discretion when used appropriately; officers working with residents to manage community problems (both large and small) is the hallmark of community policing.
Bail reform and the proper management of jail and prison populations are legitimate concerns for state governments, but there are better ways of dealing with these issues. The Colorado bill is a dangerous proposal. If it is passed into law, society’s most vulnerable will pay the highest price.