District Attorney: Felony summons instead of arrest is better path to justice for nonviolent offenders (column)

A car driver looks into his rearview mirror and sees flashing red lights on a police cruiser. The driver looks at his speedometer and sees that he is driving 20 mph over the speed limit and pulls over. The officer asks the driver to step out the car and asks for permission to search him. The driver consents and empties the contents of his pocket, which reveals two opiate pills. In the absence of a proper prescription, his possession constitutes a felony charge, which opens the driver to immediate arrest.

Does that make sense?

Under Colorado law, the officer may arrest the driver, but in a few of the state’s counties, the officer may issue a summons (ticket) to appear in court at a later date. This gives the officer time to complete his investigation and allows the driver to spend the night at home, not in jail.

In Colorado’s 5th Judicial District, located along the Interstate 70 mountain corridor, I have delegated to all police officers the discretion to issue a summons to appear in court, rather than arrest suspects for nonviolent felonies. Existing law provides police officers with more options once they determine there is probable cause for an arrest.

When a felony suspect is arrested, the consequences are immediate and negative — they are placed in handcuffs, taken to jail for booking and if they are unable to post bond, they can face extended incarceration before they have a chance to rebut the charges against them. The long-term consequences of an arrest can include losing a job, alienation from their family and the humiliation of being incarcerated.

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Across Colorado, we are incarcerating low-risk arrestees. Studies show that low-risk offenders who are in custody for even just for a few days are 40 percent more likely to commit additional crimes before their trial than defendants who are held for 24 hours or less (Lowenkamp, VanNostrand and Holsinger, 2013).

The 5th Judicial District Attorney’s Office and the Colorado State Patrol have initiated a pilot program that empowers law enforcement officers to issue a summons for low-level felonies. If this partnership is a success, we hope that other counties will adopt it because it is cost effective, avoids unnecessary disruption for citizens and saves law enforcement officer time.

By reducing unnecessary pre-trial incarceration (felony summons), fewer people are in custody awaiting adjudication. According to a 2015 study, 63 percent of jail detainees nationwide have not been convicted but are on “pre-trial status” (Minton and Zeng, 2015). The data show that this may undermine the presumption of innocence and unnecessarily strip nonviolent detainees of their dignity.

A felony summons policy empowers law enforcement to be decision makers in pre-trial release, which allows them to strike a balance between protecting public safety and preserving the presumption of innocence. And we have prioritized public safety by encouraging officers to consider past criminal conduct and giving preference to Colorado residents for release.

Pre-trial incarceration should be limited to people who are public safety risks or who have recurring contacts with the criminal justice system. Let’s keep citizens who infrequently and nonviolently violate our laws in their communities and in their jobs. It’s the smart choice, and it’s the right thing to do.

Bruce Brown is the district attorney for the 5th Judicial District, consisting of Clear Creek, Eagle, Lake and Summit counties. He can be reached at bbrown@da5.us.