On May 8, 2014 in Colorado, another tragedy occurred highlighting the need for pretrial reform. State Trooper Eugene Hofacker was shot twice while stopping to help a man with a broken-down vehicle on the interstate. Trooper Hofacker was, at the time of writing, still in the hospital and recovering. The man who shot him, Thomas Ornelas, is dead, killed by another trooper who was with Hofacker at the time. The shooter was awaiting trial for an attempted murder charge, having been released from custody on a $75,000 bond. The incident is yet another example of how important pretrial release and detention decisions are, and how little the setting of money bond does to protect us from harm. This case points to one very important element of needed pretrial reform, not just in Colorado, but also across the country. And it’s not that bond amounts should be higher.
With a long criminal history, including a conviction for murder when he was a teen, Ornelas scored high on the Mesa County pretrial risk assessment tool and was a prime candidate for pretrial detention. However, in states like Colorado that don’t have effective preventive detention statutes written into law (Colorado’s preventive detention statute is too limited to be practical), the courts are forced to set a financial release condition – $75,000 in this case – and hope that it’s high enough that the defendant can’t meet it. Thomas Ornelas could. He used the services of a bail bondsman to secure his release, paying only 15% or less of the full amount. Because the bail bond transaction is considered a private business deal, the actual amount Ornelas paid to be released is not public information.
It’s not that it should have been more than 15%, or that 100% cash bond (full amount paid to the court) was the answer. Being able to detain, through a due process hearing, someone too dangerous to be released was the answer. But in CO, and in many states, the statutes don’t give judges this vital tool for public safety. It’s like sending cops on the street without vests – a bad policy that will lend itself to a bad outcome, always just a matter of time.
Policies that base release on how much money a defendant can pay rather than the risks they pose to the community damage our justice systems and allow for loopholes. They offer a way out for high-risk defendants with the means to make a bond and recent research has shown that half of the most dangerous defendants are getting out pretrial, as in this case. These policies also trap lower risk defendants who are poor in expensive jail beds, destabilizing them by disrupting employment, housing and family. The system is upside down, dangerous, and expensive. And we can do better, if the legislature in CO and other states can withstand the lobbying power of the commercial surety industry. They are happy with things just as they are.
There was an ironic twist to the events of the day of the shooting; one that bodes well for pretrial reform in Colorado. The attack on Trooper Hofacker occurred only hours before Sheriff Stan Hilkey of Mesa County, Colorado announced he will be taking the position of Executive Director of the Colorado Department of Public Safety, the agency which, among many other things, oversees the Colorado State Patrol. The irony comes from the fact that, as Sheriff, Hilkey has been a champion of pretrial reform in his county and state (and across the nation), and he understands that the tools exist to do better. He co-led the effort in his county to introduce pretrial risk assessment which gave the courts an empirical measurement of just how dangerous Ornelas was. Hilkey knows how money-based pretrial decisions fail to protect law enforcement officers and the public from potentially dangerous defendants. He has been a vocal supporter of not only the use of pretrial risk assessment, but also policies and practices that support a risk-based system such as supervision and monitoring and preventive detention statutes.
In his new role as Director of Public Safety, Hilkey will have the opportunity to improve Colorado’s pretrial justice systems statewide, not just in his county. In spite of the power of those who have a financial interest in maintaining an unsafe money-based system, this new chance to utilize soon-to-be Director Hilkey’s pretrial justice expertise and address unjust and counterproductive pretrial practices really should not be a hard sell for the people of Colorado and their leaders. A body of research shows how risk-based systems are safer, fairer and more effective than resource-based systems, while worst case scenarios like the shooting of Trooper Hofacker demonstrate how, much too often, current practices don’t meet even the basic requirement of ensuring public safety.