H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado’s New Bail Bond Law Means More Fairness In Setting Bail Bonds and Bail Bond Conditions

By H. Michael Steinberg – Colorado Criminal Defense Lawyer For Bail Bond Issues
Colorado’s New Bail Bond Law Means More Fairness In Setting Bail Bonds and Bail Bond Conditions -Quietly last year – Colorado’s state legislature tweaked bail bond laws that had been unfair for many, many years. With the passage of the Pretrial Bail Law – H.B. 13-1236 – on May 11, 2013, Colorado started the process to reform bail bond laws that had led to unfair and unintended results for decades (since 1972 – 42 years!).

The Colorado Commission on Criminal and Juvenile Justice (CCJJ) was primarily responsible for the changes.

The goals of the new law are:

TO: “Implement Evidence Based Decision Making Practices and Standardized Bail Release Decision Making Guidelines” – meaning the use of “empirically developed risk assessment instruments” instead of emotional pleas by prosecutors to incarcerate before conviction thousands of individuals presumed innocent and held in custody because they did not have the cash to gain their freedom pending trial or plea bargain.

TO: “Discourage the Use of Financial Bond for Pretrial Detainees and Reduce the Use of Bonding Schedules; and

TO “Expand and Improve Pretrial Approaches and Opportunities in Colorado.”

For more than four decades what is euphemistically called “pretrial detention” was unfairly used to coerce pleas from individuals unable to post their bond.

While judge’s will continue to have unfettered discretion in setting bond – the new law gives judges more options to use other bond conditions and pretrial programs to assure compliance with court orders.

The Changes In The Colorado Bail Bond Laws

The First Significant Change – 16- 1-104 – The Definition of Bail

Prior to enactment of the new law a Bail Bond was defined as only “an amount of money.”

After the passage of the new law a bail bond is more broadly defined as “a security, which may include a bond with or without monetary conditions” and the term “security” is used further defined as a pledge.

Money is now not the only “currency” that can secure the defendant’s appearance in court. Other conditions have been placed on the playing field as “cash.” Non-monetary based conditions of pretrial release are – after the new law – focused on the individual who is in court at that place and at that moment in time.

Language that used to read “setting the amount of bail and type of bond” – now reads “setting the type of bond and conditions of release.”

The Second Significant Change – A New “Individualized Approach To Setting Bail

While the criteria for setting bond is a lengthy and complex statute – it is the key to your freedom if you are in custody seeking release. Read it carefully – lawyers do.

Here is the entirety of the new law reprinted for you:

C.R.S. Section 16-4-103 Setting and selection type of bond – criteria

(1) At the first appearance of a person in custody before any court or any person designated by the court to set bond, the court or person shall determine the type of bond and conditions of release unless the person is subject to the provisions of section 16-4-101.

(2) If an indictment, information, or complaint has been filed and the type of bond and conditions of release have been fixed upon return of the indictment or filing of the information or complaint, the court shall review the propriety of the type of bond and conditions of release upon first appearance of a person in custody.

(3) (a) The type of bond and conditions of release shall be sufficient to reasonably ensure the appearance of the person as required and to protect the safety of any person or the community, taking into consideration the individual characteristics of each person in custody, including the person’s financial condition.

(b) In determining the type of bond and conditions of release, if practicable and available in the jurisdiction, the court shall use an empirically developed risk assessment instrument designed to improve pretrial release decisions by providing to the court information that classifies a person in custody based upon predicted level of risk of pretrial failure.

(4) When the type of bond and conditions of release are determined by the court, the court shall:

(a) Presume that all persons in custody are eligible for release on bond with the appropriate and least-restrictive conditions consistent with provisions in paragraph (a) of subsection (3) of this section unless a person is otherwise ineligible for release pursuant to the provisions of section 16-4-101 and section 19 of article II of the Colorado constitution.

A monetary condition of release must be reasonable and any other condition of conduct not mandated by statute must be tailored to address a specific concern.

(b) To the extent a court uses a bond schedule, the court shall incorporate into the bond schedule conditions of release and factors that consider the individualized risk and circumstances of a person in custody and all other relevant criteria and not solely the level of offense; and

(c) Consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration and levels of community-based supervision as conditions of pretrial release.

(5) The court may also consider the following criteria as appropriate and relevant in making a determination of the type of bond and conditions of release:

(a) The employment status and history of the person in custody;

(b) The nature and extent of family relationships of the person in custody;

(c) Past and present residences of the person in custody;

(d) The character and reputation of the person in custody;

(e) Identity of persons who agree to assist the person in custody in attending court at the proper time;

(f) The likely sentence, considering the nature and the offense presently charged;

(g) The prior criminal record, if any, of the person in custody and any prior failures to appear for court;
(h) Any facts indicating the possibility of violations of the law if the person in custody is released without certain conditions of release;

(i) Any facts indicating that the defendant is likely to intimidate or harass possible witnesses; and

(j) Any other facts tending to indicate that the person in custody has strong ties to the community and is not likely to flee the jurisdiction.

(6) When a person is charged with an offense punishable by fine only, any monetary condition of release shall not exceed the amount of the maximum fine penalty.

A Summary of The Key Changes To C.R.S. Section 16-4-103 – Setting Bond In Colorado

This law – which I have argued for more than 30 years importantly – is substantially different from predecessor.

A summary of the new bail setting law would include the following list of changes.

The new law does these things.

The Court, to determine the type of bond and conditions of release,

(1) Must now review of bond and conditions fixed upon return of an indictment or filing of an information or complaint (including on warrants issued after the filing of charging documents);

(2) Engage in a a presumption of release under least-restrictive conditions unless the defendant is unbailable pursuant to the constitutional preventive detention provisions;

(4) Focus on the individualization of conditions of release (including in “bond schedules”) and express mandatory consideration of a defendant’s financial condition or situation;

(5) Apply “reasonable” financial conditions, and non-statutory conditions to be “tailored to address a specific concern;” and

(6) Make certain to give consideration of ways (including new bond types in statute) to avoid unnecessary pretrial detention.

The Court must apply – in it’s individualized bail determination – he use of an empirically developed risk assessment instrument while it considers the bail-setting criteria previously set out in Sections 16-4-105 (1) (a) – (k).

While the law does not define “least restrictive” conditions, the terms is well understood to mean that cash or surety bonds are clearly “more restrictive” than unsecured bonds such as personal recognizance bonds (PR Bonds).

The Third Significant Change – New Provisions Concerning “Secured Money Conditions” (if they are ordered)

At the time of setting a “more restrictive bond” such as a cash or surety bond – the Court must”

….presume that the defendant is “eligible for release on bond with the appropriate and least restrictive conditions” (Section 16-4-103 (4) (a));

….determine the sufficiency of the financial condition to ensure court appearance and public safety, “taking into consideration the individual characteristics of each person in custody, including the person’s financial condition” (Section 16-4-103 (3) (a));

….find that the condition is “reasonable and necessary to ensure the appearance of the person in court or the safety of any person or persons in the community” (Section Section 16-4-104 (1) (c), 16-4-105 (7));

…”consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration” (Section 16-4-103 (4) (c)).

The Fourth Significant Change – Section 16-4-104 – Changes To The Types of Bond

While the old law relied on basically TWO bond types – unsecured or unsecured “personal recognizance” bonds – the new law lists FOUR bond types.

Subsection (a) Bonds – are unsecured personal recognizance bonds with only statutorily mandated conditions.

Subsection (b) Bonds – are unsecured personal recognizance bonds with additional non-monetary conditions necessary for public safety or court appearance.

Subsection (c) Bonds – are secured money bonds when the secured financial condition is “reasonable and necessary to ensure” court appearance or public safety.

Subsection (d) Bonds – are secured by real estate to be ordered only when release on personal recognizance without monetary conditions will not assure court appearance or public safety.

The News Colorado Bail Bond Law Finds A Way Around The DA’s Objections
While under the old version of the law a DA could object to a PR – personal recognizance bond in certain situations thus compelling judges to set a secured cash bond. The new law allows the DA’s objection only to a subsection (a) bond. Judges may set a “Subsection (b)” unsecured personal recognizance bond with additional non-monetary conditions.

The Fifth Significant Change – Section 16 – 4 – 105 – Changes To The Conditions of Release

This new section – 16-4-105 provides a new section that provides that secured monetary conditions need not be “automatic” and that the conditions of pretrial release include the use of pretrial services programs that can substitute for monetary bonds to insure the Defendant’s appearance.

The Sixth Significant Change – Section 16 – 4 – 106 – Pretrial Services Programs

This section describes pretrial services programs and supports the notion that judicial districts should “make all reasonable efforts” to implement an empirically developed risk assessment instrument and a structured decision-making design based on risk.

The Seventh Significant Change – Section 16 – 4 -107 – A New Hearing After The Setting of Monetary (Cash) Conditions of Bond

If a secured bond (money bond) is ordered, a defendant has the right to file a “motion for relief.” The motion can present evidence “not fully considered” by the judge at the bail hearing. While a judge may deny the motion without a hearing – the judge must do it within 14 days and must use empirically developed risk assessment instruments.

Conclusion – Changes Bring Much Needed Reason To The Setting Of Colorado Bail Bonds

Judge’s setting bond today often fall into old habits in setting bail bonds in Colorado criminal cases such as relying on:

– emotional appeals from the vindictive victims.

– so called “scheduled bonds” which bond amounts were set decades ago and routinely used by judges in Colorado without any individualization to the person whose freedom is at stake.

– the level of the felony charged – specifically the visceral reaction of the judge to the nature and number of the charges – and not all of the factors listed in sections 4 (a) – through – (j) above.