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Crime and Courts

Colorado governor signs wave of criminal justice bills into law, including ketamine measure spurred by Elijah McClain’s death

The legislation Gov. Jared Polis signed on Tuesday includes measures aimed at reducing burdensome court fees and the fallout that families in poverty can face when they don’t pay them

A mural of Elijah McClain was painted by Thomas "Detour" Evans, in memory, June 8, 2020, in the RiNo neighborhood of Denver. (Philip B. Poston, Sentinel Colorado)
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Gov. Jared Polis indefinitely prohibited the use of ketamine outside of hospital settings for people experiencing “excited delirium” as he signed into law a bill limiting when the powerful sedative can be used in situations involving law enforcement. 

House Bill 1251 was inspired by the death of Elijah McClain, a 23-year-old Black man who died after an encounter with Aurora police officers and paramedics in 2019.  During the encounter, McClain was given ketamine in a dose his family said was far too large for his size.

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“House Bill 1251 and (the Colorado Department of Public Health and Environment) are both clear and in agreement: EMS is responsible for patient care, not law enforcement,” Polis wrote in a letter explaining why he signed the bill into law. “Furthermore, ketamine should not be used for law enforcement purposes.”

In signing the measure, Polis also directed CDPHE to place a hold on allowing the use of ketamine outside hospital settings for “excited delirium,” a syndrome in which people exhibit sudden bizarre and sometimes aggressive behavior. 

McClain was given ketamine under the belief that he was suffering from excited delirium. But medical experts say the syndrome can be easily misdiagnosed — and it’s often misunderstood

MORE: Read more politics and government coverage from The Colorado Sun.

“A recent American Medical Association policy statement indicated that ‘excited delirium’ is a subjective diagnosis that should not be used until better diagnostic criteria exist,” Polis wrote in his letter. “There will still be times when chemical restraint is still needed to assess, treat and transport patients. But, that should only occur when patients whose serious, probable and imminent threat of harm to self or others prevent EMS providers from safely assessing, treating and transporting the patients to a hospital, and not for matters relating to any criminal behavior.”

Polis said House Bill 1251 is “ a good start as a review of the ambulance-care system,” and that he wants CDPHE to conduct a broader analysis to begin later this summer, after the agency has completed its review of ketamine use outside of hospitals.

MORE: Colorado lawmakers passed 502 bills during this year’s legislative session. Here are 65 you need to know about.

House Bill 1251 specifically requires emergency responders to administer ketamine to someone only after weighing them or trying to estimate their weight and only if the responders are trained in advanced airway support techniques and have equipment to monitor the person’s vital signs.

The legislation bans law enforcement from trying to influence the administration of ketamine, and requires that officers report their colleagues who try to pressure emergency medical responders to give the sedative.

“We took a significant step forward in our state to improve policing and end the misuse of ketamine, which has had dangerous and deadly consequences for Coloradans,”state Rep. Leslie Herod, a Denver Democrat and prime sponsor of the bill, said in a written statement. “No longer will law enforcement be able to direct paramedics to administer a potentially deadly drug, especially for a condition of ‘excited delirium,’ the diagnostic validity of which is disputed by medical professionals.”

Gov. Jared Polis speaks to Rep. Leslie Herod about Colorado’s coronavirus vaccine distribution efforts in Denver on Saturday, Jan. 30, 2021. (Jesse Paul, The Colorado Sun)

McClain’s death remains under investigation by Colorado Attorney General Phil Weiser, who is probing whether charges are appropriate for any of the officers or paramedics involved in the encounter. McClain was unarmed and had committed no crime before he was stopped. 

The city of Aurora placed a moratorium on the use of ketamine by emergency medical responders shortly after McClain died.

Polis also signed a number of other criminal justice-related bills into law on Tuesday, including two measures also sponsored by Herod aimed at reducing burdensome court fees and fallout that families in poverty can face when they don’t pay them. 

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Under House Bill 1315, juvenile offenders and their families are no longer required to pay certain court fees or fines, including cost-of-care fees, prosecution costs and a variety of other surcharges. The average fees for a case are about $300 in Colorado, according to the bill’s sponsor, and the state spends an estimated 75% of the revenue they collect from juvenile offenders on further fee collection. 

The measure would also vacate a $10.4 million backlog in unpaid fees. It’s not clear how much of that money the state would have recovered without the bill, according to a financial analysis by nonpartisan legislative staff. 

House Bill 1314 also repeals the Colorado Department of Revenue’s ability to suspend or deny driver’s licenses based on unpaid court costs and municipal violations

Under the measure, people also cannot lose their driver’s licenses for fraudulently using license plates or a car title, failing to pay fare on public transportation, or underage consumption of alcohol or marijuana. 

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Polis also signed into law a measure requiring that courts hold a bond hearing for people who have been jailed within 48 hours of their arrest. House Bill 1280, an effort to detain people no longer than necessary, also establishes the position of a statewide judge who can hold bond hearings remotely and on weekends to help rural judicial districts with limited staff meet the legislation’s requirements.

“The law created this afternoon will ensure that Coloradans no longer languish in our jails for long periods of time while awaiting trial on a minor offense,” Rep. Steven Woodrow, a Denver Democrat and prime sponsor of the measure, said after the bill was signed. 

MORE: Colorado courts could soon be forced to hold bond hearings within 48 hours of someone’s arrest

The law also makes several changes to the bond process. Under House Bill 1280, defendants who have posted bond must be released within six hours, and bonds can now be paid by money order or cashier’s check, in addition to cash. The measure also requires each jail to create a way for people to post their bond online by Jan. 1. 

Polis also signed the following criminal justice bills into law:

  • Senate Bill 271 rewrites Colorado’s misdemeanor code by changing the maximum sentence for a Class 1 misdemeanor to 364 days in jail and a fine of $1,000, down from 18 months in jail and a fine of up to $5,000. For Class 2 misdemeanors, the penalty would be 120 days in jail and a fine up to $750, down from 364 days in jail and a fine of $1,000. Class 3 misdemeanors are eliminated. A number of crimes would also be reclassified under the measure.
  • House Bill 1214, starting on Jan. 1, 2022, automatically seals people’s arrest record if no charges are filed within a year of their arrest. It also orders the sealing of arrest records for people arrested between Jan. 1, 2019, and Jan. 1, 2022, where there was no conviction and no additional charges were filed. The measure also creates a process for people convicted of certain low-level offenses to petition the court for those records to be sealed. 
  • Senate Bill 71 prohibits courts from releasing a juvenile on a bond with monetary or property conditions. If the court chooses to release a juvenile on a bond, the bill requires the bond to be an unsecured personal recognizance bond. 
  • Senate Bill 146 changes the criteria for senior and special needs inmates to qualify for parole. It requires that the Colorado Department of Corrections enroll inmates 65 and older who were released on special needs parole in appropriate health insurance plans and pay their premiums for up to six months after their release. 
  • House Bill 1250 builds off of Senate Bill 217, the 2020 police accountability bill passed after George Floyd’s murder. It requires law enforcement agencies to release body camera footage within 21 days in cases where someone has complained about officer misconduct. It also includes the Colorado State Patrol and Colorado Bureau of Investigation in the pool of law enforcement agencies for whom qualified immunity for officers no longer applies.

CORRECTION: This story was updated at 5:14 p.m. on Saturday, July 10, 2021 to correct the maximum jail sentence for someone convicted of a Class 2 misdemeanors under Senate Bill 271. The maximum jail sentence is 120 days.


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