On Sept. 5, 2015, Elisabeth Epps attended a pool party at a friend’s apartment complex in Aurora, Colorado, when she encountered a dazed-looking man who appeared to need help. “Where can I take you?” asked Epps, a prison abolitionist and bail activist, as she held the man, later identified as Cody Shelby, by the arm.
Moments later, at least three Aurora Police Department officers surrounded Epps and Shelby, who she believed was in the throes of a mental crisis. Epps said she feared police would arrest him and take him to jail instead of to his home or a hospital. So, she led Shelby away from the officers as they closed in on them and also advised him not to talk to them if he was uncomfortable.
“We’re not going to continue walking around,” one officer protested. “You said he’s not under arrest,” Epps replied. “What he needs right now is not men with guns.”
An officer told Epps that they just wanted to get Shelby help. But he failed to assuage Epps’s concerns about how the incident would be handled; she said she was worried that they lacked de-escalation and mental health training.
“You don’t make us feel safe,” Epps said to one of the officers, “those of us who have endured your brutality.”
A security officer with the apartment complex determined that she was causing a disturbance and then a police officer questioned if Epps, a Black woman, lived in the complex where the pool party was held. Epps replied that she was an invited guest. Epps proceeded to single out one of the officers as “not just a racist” but also “a classist and a sexist.”
Epps was then arrested and charged with trespassing, resisting arrest, and obstructing a peace officer in Aurora’s municipal court. Shelby, who is white, was not booked on suspicion of a crime. In November 2015, a jury convicted Epps solely on the obstruction charge. She received a 90-day jail sentence, which a public defender’s office helped her appeal through higher courts. The appeals process delayed Epps starting her jail sentence until this year. Just after Martin Luther King Jr. holiday weekend, she lost her battle to avoid being incarcerated. On Jan. 23, Aurora County Judge Shawn Day ordered Epps to serve 27 days of the sentence, despite dozens of support letters for Epps from co-workers, elected officials, and even a reserve police officer, who said that she should be given community service instead of jail.
On Feb. 7, the Arapahoe County Detention Center, a jail serving the Aurora area, released Epps 15 days into the sentence. The county’s alternative sentencing program allows incarcerated individuals to earn time off of their sentence for good behavior. “I’m blessed to have been able to spend 6 days of each of the past two weeks working for others liberation—and now my own,” Epps said in a statement.
Spokespersons for Judge Day and for the Arapahoe County Sheriff’s Department, which runs the jail, did not immediately respond to requests for information about Epps’ release.
“I have been blown away by how the court sees me as disposable.”
In 2018, Epps founded the Colorado Freedom Fund, a community bail fund, and has spent hundreds of hours in the lobbies of the Denver and Aurora area jails posting bond for dozens of poor defendants awaiting trial. She has become as familiar with the Arapahoe County Detention Center as any criminal defense attorney or incarcerated person. But now instead of advocating for incarcerated people, she would be behind bars.
The local support for her case has been validating, Epps said. She said that she’s now more emboldened to take on Colorado’s criminal legal system and call out money bail as unfair to people who can’t afford it or a decent defense lawyer before their day in court.
“I have been blown away by how the court sees me as disposable,” Epps, 39, said in a phone interview a day before the judge ordered her to jail. She spoke to The Appeal while she sat for a hair braiding appointment, which she scheduled in anticipation that she would not be able to be avoid being jailed. Epps said the hair braiding was a minor indulgence of her vanity as well as an expression of her fears around conditions of confinement. The 2015 case of Sandra Bland—a Black woman pulled over by a Texas state patrolman, arrested, booked in the Waller County, Texas, jail and found hanging in her cell three days later—remained heavy on Epps’s heart, she said. When friends and family said they were skeptical that Bland took her life, authorities pointed to intake forms to prove that she was deeply depressed and they classified her death as a suicide. The act of braiding her hair, of taking time to care for herself, Epps explained, could rebut suicide claims by law enforcement should anything happen to her in jail. “I want people to understand that if something happens to me,” Epps said, “I did not hurt myself.” Her fears are not unwarranted: Between 2011 and 2016, there were at least a dozen in-custody deaths—one classified as a homicide and the others attributed to suicides and medical emergencies—at the Arapahoe County jail.
“I wasn’t prepared for how little it makes you feel,” she said. “The sentence is so wildly disproportionate to the offense. But I know that a lot of people have it much worse.”
“She was literally bailing people out of jail…and then going back to a cell.”
From 2015 through 2017, the Arapahoe County Sheriff’s Department booked an average of 17,866 men and women annually into its jail. The facility can accommodate approximately 1,450 people, and had an average daily population of about 1,000 in 2017, according to the latest annual report produced by the sheriff. None of the sheriff’s reports provide a racial or socioeconomic breakdown of the jail population. But according to an analysis by the Prison Policy Initiative, whites are vastly underrepresented in Colorado’s federal and state prison facilities, as well as in the local jails. Blacks, Latinxs and Natives, meanwhile, are overrepresented among the state’s incarcerated population.
Racial and economic disparities within the jail system, enabled by mass incarceration policies and poor defendants’ inability to pay as little as $10 bail, drove Epps to continue her work with the Colorado Freedom Fund even when she was incarcerated. Judge Day also granted Epps work-release privileges, an arrangement with the sheriff that allowed Epps to leave the jail for work six days a week.
But Epps had to wear an ankle monitor, and she paid roughly $35 a day in fees during her work release.
“She was literally bailing people out of jail during her work-release hours, and then going back to a cell,” said Pilar Weiss, a friend of Epps’s who is director of the National Bail Fund Network.
On the first day of her work release, Epps stood on the snow-covered grounds outside the Arapahoe County Detention Center and recorded a video message to her approximately 1,500 Facebook followers. Her hair was styled in cornrowed braids that ran past her shoulders.
“It’s been a really difficult few days,” she told viewers. “I’m incredibly blessed to be out for a few hours, to get to do the work of the freedom fund.”
Jail brings a new understanding of mass incarceration
Born in Winston-Salem, North Carolina, Epps lost her mother to breast cancer at age 9 and became pregnant at 16. Determined to prove naysayers wrong who felt she was doomed to a life of poverty and other struggles, Epps went on to earn a law degree from the University of Virginia. Although she has passed the bar exam, Epps is not yet licensed to practice law in Colorado, she said.
Her bail fund work grew out of ongoing efforts by activists in the Black Lives Matter movement. In 2017, two Denver activists participated in Mama’s Day Bail Out, a campaign that aims to post bond for Black mothers and reunite them with loved ones before Mother’s Day. With support from BLM and the Denver Justice Project, Epps stepped in to continue the bail campaign in 2018, helping to raise over $25,000 through a crowdfunding website.
“We got a lot of that money back in time for a Father’s Day bailout,” Epps said.
Much of the money raised cycled back to the fund after defendants returned to court for trial, so Epps and others formed the Colorado Freedom Fund.
As of Jan. 24, the day after Epps began her jail sentence, the fund posted bond nearly 200 times at jails in Arapahoe, Boulder, Denver, and Jefferson counties, according to Eva Frickle, a Colorado Freedom Fund volunteer.
But Epps’s incarceration gave her a new understanding into the experiences of the people she had bailed out. Posting bond for defendants often required two to six hours of waiting in jail lobbies, Epps said. But the lobby and visitation center was as far as she had been.
Inside the Arapahoe jail, Epps slept in a pod that can hold up to 22 women. Her cell was equipped with a foot locker for storing a limited number of belongings. Epps said that incarcerated people are allowed to borrow up to three books from pod’s cart-size library. They also receive a miniature toothbrush, a toothpaste tube, and a bottle of shampoo body wash with the brand name Maximum Security. Feminine hygiene products, such as tampons, aren’t easy to come by, Epps said. In a recent Twitter post, Epps said she had an asthma attack one day after jail staff denied her medication (though a deputy later got her to a nurse).
“I feel embarrassed to say that it was worse than I expected,” she said in a phone interview on her sixth day of work release. “It’s as bad as a cage, and yet, I’m extremely blessed to be able to leave and work. My goal is to try to get one woman out for every day that I’m in. But that’ll be hard.”
Epps said she didn’t achieve that goal before her release.
Judge scolds Epps for a “deep hatred and mistrust of the police and of government”
Because Epps’s case crawled through the appeals process for over three years only to end with her jailed for a minor encounter with the police in which no one was harmed, concerns have been raised about Judge Day’s temperament.
“As a reserve police officer and practicing attorney, I do not always agree with Elisabeth’s criticisms of law enforcement and the criminal justice system,” Terrance Carroll, former speaker of the Colorado House of Representatives, wrote in an August 2018 letter to the judge. “I do not believe that incarcerating Elisabeth for 90 days is reasonable or serves justice.”
Carroll’s correspondence was among the nearly 50 letters sent to Day. Local clergy, physicians, donors to the bail fund, as well as peers who run bail funds in other states also wrote letters in support of Epps.
“Sentencing Elizabeth [sic] to time in jail can only hurt the community,” one Colorado resident wrote. “Her generous, compassionate being is needed out here, and the public is better off with her out of jail.”
Ironically, Day has been hailed in local press as a champion of bail reform since his appointment as Aurora’s presiding municipal judge in 2016. In recent years, federal courts struck down state- and county-level bail policies as unconstitutional because poor defendants often spent months locked up awaiting trial, and suffer from collateral consequences including lost jobs and housing. In early 2018, just before California became the first state to replace cash bail with an algorithm-based system to make pretrial release determinations, Day and other Aurora-area judges blasted money-based bail.
“You can’t set a bond amount that a person can’t post,” Day told Colorado Public Radio. “You can’t treat someone with money differently than someone who doesn’t have money.”
So, why did Day insist on sending Epps to jail, even as he appears to largely agree with her work to help poor people avoid pretrial incarceration? The answer, Epps said, is in the lecture from the bench that Day delivered to her during her 2015 sentencing. Epps had no grounds to interfere with officers investigating a criminal matter at the pool party, the judge said. But her lack of decorum toward officers made the offense worse, he added.
“There is nothing I can do with my sentence that will have any effect on Ms. Epps,” Day said. “She’s already set her views in concrete. … There’s no question in my mind that because of the defendant’s deep hatred and mistrust of the police and of government, she didn’t take it upon herself to help Cody [the young man at the party], she took it upon herself to interject.”
Years later, Day’s words still haunt Epps.
“It’s him being deeply offended by my views, by my mistrust of police,” Epps said. “So since there was nothing he could do to fix my views, maybe jail would fix them? There’s a wide range of things I consider to be reasonable and fair, and I consider him to be outside of it.”
Day did not respond to a request for comment about his remarks.
Appealing her 2015 conviction almost didn’t happen, Epps said. It was her son, she said, who implored her to fight as vigorously for herself as she might for her clients.
“My concerns are relatively minimal, because I know how strong she is,” said Epps’s son, Adrian Harper. Harper, 22, lives in Montgomery, Alabama, where he studies business administration at Huntingdon College. He lived with Epps in the Aurora area when she was sentenced to jail.
“I wasn’t interested in my primary caregiver being in jail for a month—where would I go, what would I do?” Harper said. “This is an obstacle that, for many, can really ruin lives.”
Jail far from “the end of the story”
Aurora City Council member Nicole Johnston said Epps’s case has inspired her to seek holistic change to the local criminal justice system. For one, she is not convinced that a years-long effort to uphold Epps’s conviction was worth the cost in city resources.
“I was disappointed with the sentencing. It was excessive,” said Johnston, who first encountered Epps as a donor to the 2018 Mama’s Day Bail Out. “Community service would have been more appropriate. Although, let me be clear, I don’t even think that it should have gotten that far. There’s a commitment that that our taxpayers make with these jail times.”
Johnston has asked Aurora’s Judicial Performance Commission for a summary of cities “leading the charge in municipal criminal justice sentencing reform,” and for an analysis of how the city’s sentencing guidelines and actual sentences compare with other cities. Johnston also said that she may propose state legislation to explore eliminating jail and exorbitant fines as punishment for some low-level municipal offenses, she said.
“It’s not going to be the end of the story with [Epps] going to jail,” Johnston said.
Two days before she reported to the Arapahoe Detention Center, Epps delivered the keynote address at Denver’s annual King Day celebration.
“In less than two days I have to surrender, after four years of fighting a case from 2015, an incident in which I committed the unforgivable crime of talking back to a cop while Black,” she told the crowd. “There’s a part of me that wonders what were they thinking. … But we know what they were thinking. They were thinking my life didn’t matter. They were thinking no one would notice. They were thinking my voice didn’t matter. They thought I was alone and they thought wrong.”
Correction: An earlier version of this article misstated the terms of Elisabeth Epps’s work-release. Work-release privileges allowed Epps to leave jail for work six days a week, not from 9 a.m. to 5 p.m. during the week. This article also misstated the fees that Epps had to pay during her incarceration. Epps had to wear an ankle monitor and paid roughly $35 a day in fees during her work-release, but she did not pay $12 per day in administration fees for the monitor and a separate daily $35 fee for work-release. The article also misstated the affiliation of activists who participated in the Mama’s Day Bail Out campaign in 2017. The Denver activists were not part of a local Black Lives Matter chapter. This article also misstated how Judge Shawn Day received correspondence in support of Epps. Letters were sent to the judge, not mailed. Finally, the article misstated the year that Aurora City Council member Nicole Johnston met Epps as a donor to Mama’s Day Bail Out. It was 2018, not 2017.