Pre-Trial Supervision Programs are Not an Alternative to Jail if They are Unaffordable

In Boulder County, Colorado, a new bill aims to keep more individuals accused of low-level crimes out of jail by instead putting them in pre-trial, community treatment programs. The diversion program is focused on restorative justice and placing people in behavioral health programs, rather than waiting in jail for their cases to resolve. It started as a pilot program in 2018, but the county is looking to make it permanent with Senate Bill 22-010. Senator Pete Lee, a cosponsor of the bill, describes it as “treatment rather than punishment” as individuals “don’t have to make a plea, they don’t get sentenced, they’re diverted out of the system into community treatment. At the end of it, if they haven’t re-offended and they’re progressing through the treatment, presumptively the charges could be dismissed.” In order to be part of the diversion program, the individual must qualify by meeting the eligibility guidelines as described in Section (1)(b)(3) of the Bill.

This all sounds like steps in the right direction for criminal justice reform, but this is still effectively a jail sentence if the program is not affordable and accessible to everybody.

Over the last several years, counties and states have enacted pre-trial supervision policies and programs for individuals that are charged with crimes, in attempts to get individuals out of jail while awaiting trial. Pre-trial supervision is similar to supervision imposed when an individual is convicted of a crime and they are then placed on probation, parole, or placed in treatment programs. However, pre-trial supervision is imposed on individuals who have only been accused, are presumed innocent, and have yet to be found guilty of any crime. Supervision can include electronic monitoring, drug tests, and drug patches, to name a few.

In some places, these supervision and treatment programs are at no cost to the individual. However, in other places the accused individual must pay for their own supervision fees and treatment programs, making it impossible for individuals who cannot afford the fees to participate. Pre-trial programs are not an effective alternative to jail if they are unaffordable and inaccessible.

This raises concerns about the program that Boulder County is attempting to pass in Senate Bill 22-010. The program is on a referral basis only (from the district attorney’s office), and only for those that meet specific eligibility criteria. One of those criteria is that program participants pay restitution, even though they have not been found guilty of any crime and it is unclear if ability to pay is considered. Furthermore, it is unclear if there are any costs or fees associated with the program that participants must pay for. As the bill is currently written, there is no safeguard for assessing people’s ability to pay and to ensure this program can help everyone, not just people who can afford it.

The Mental Health Diversion Program released their Annual Legislative Report in 2021 discussing the pilot program’s successes and challenges.  Among the challenges acknowledged in the 2021 report was that some individuals were unable to afford the copay, deductible, or fees for the treatments, and were unable to afford to pay any restitution. Despite this assessment, Senate Bill 22-010 provides no clear answer on how this issue will be addressed to ensure the program is available to everyone, no matter if they are indigent or not. There is mention of state funding in the bill, but there is no explanation in the bill as to where the state funding goes, how ability to pay will be assessed, or what happens to people who cannot afford to pay anything for treatment or fees. Ability to pay is briefly mentioned in Section (1)(c) of the proposed bill: “Defendants with the ability to pay may be required to pay for such programs or services.” However, nothing is mentioned regarding how, or if, indigent individuals will have access to this diversion program.

This is an overall concern with pre-trial diversion and supervision programs. What happens if the individual cannot afford the supervision or treatment fees? Does that make them ineligible for the program? If they are eligible but cannot pay, are they effectively kicked out of the program, keeping them in jail only because they’re poor? What is the point of jail diversion if the alternative is that individuals have to pay so much in pre-trial fees that many remain locked up anyway, all while being presumed innocent?

You can read the current mark-up of the bill here, which has passed its first committee test and has moved to appropriations.

Equal Justice Under Law is dedicated to ending costly and unaffordable pre-trial programs that discriminate on the basis of how much money someone has. To learn more about our work regarding these issues, see our cases here.