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.
Published on:

The Colorado Bail Bond System – Unfair, Unjust, Shameful – Punish First Then The Right To Trial – A Tool To Fight Back

By H. Michael Steinberg – Colorado Criminal Defense Lawyer

The Colorado Bail Bond System – Unfair, Unjust, Shameful – Punish First Then The Right To Trial – A Tool To Fight Back
– Colorado’s Bail Bond System is broken. The purpose of bail is solely to insure the appearance of the Defendant in court. The reality is the wealthy “get out” and the not so fortunate – paycheck to paycheck families – often lose everything.

The meaning of a “presumption of innocence” is ironic to these individuals and their families. The system was never intended to keep in custody those who do not have the ability to post bond. In it’s simplest terms – the definition of bail is the total amount of money required to be released from jail while awaiting trial. If you have the amount of bail set by the judge, or have the ability to retain the services of a bailbondsperson – you gain your freedom while fighting the charges.

If you don’t “post” bail – you stay in custody until you can raise the bail or the case is resolved. You never regain your freedom until you either plea bargain, or the case is resolved in some other way.

The United States leads the entire world in the number of “pre-trial” detainees waiting for the cases to resolve. On any given day there are more than 500,000 people in jail who do not have the resources to post bond or are being held on “no -bond” holds.

Those Who Cannot Post Bail – The Unfair Impact On The Innocent

Colorado’s Bail Bond System Destroys Lives

Putting aside the constitutionality of the bail bond system for a moment, the reality of not posting bond is too real to many in the Colorado criminal justice system. For those who cannot post bond the following impacts are common:

– They lose their employment.
– They lose their home – or are evicted from their apartment.
– They lose custody of their children.
– They “do more time” waiting to resolve the case than the actual sentence to jail as a result of a conviction by plea or by trial.
– They are less able to assist in their defense and more vulnerable to a harsh “plea bargain.”

Or Alternatively Pleading Guilty to “Get Out

– Pleading guilty to crimes they did not commit to salvage something of their lives.
– The creation of a permanent criminal history that leads to a life of underachieving and loss of income.

The Purpose Of The Colorado Bail Bond System Is NOT To Incarcerate

The idea of bail is not punishment. It is an unstated and entrenched belief by many prosecutors and Judges in the Colorado criminal justice system that the person in custody is guilty. Bonds are set on that premise.

But – there is a new tool in the war against unfairness in the Colorado Bail Bond System. In 2013 the Colorado state legislature enacted new legislation (see below) that was intended to alter the bail bond system to use – rather than cash or surety bonds – a range of nonfinancial conditions such as GPS monitors, pretrial supervision, or unsecured “personal recognizance” bonds.

Many judges are either unaware of the new law and therefore don’t pay any attention to it, or they are so entrenched in bail bond system that the ignore the intent and language in the law.

First – Understanding Colorado Bail Bond “Schedules” – Unfair, Unjust and Probably Unconstitutional

Colorado still uses so called “scheduled” bond amounts that turn solely on the crime charged. For example – the “scheduled” bond in Boulder Colorado on a charge of Distribution of a Controlled Substance Schedule I or II is (18-18-405(1)(a)) is $50,000.00. While the United States Justice Department has filed a civil rights lawsuit attacking this practice as unconstitutional and a violation of a citizen’s civil rights, it is also entrenched in the system.

The Colorado Bail Bond System – The District Attorney’s Use of Fear

The use of the Colorado Bail Bond has ben a way to lock people up without an adjudication of guilt. When the bail bond hearing is held – the District Attorney is heard to wail about how heinous the crime was, how dangerous the accused is, and how – if released, the accused will harm others. Without the possibility of cross examination, the alleged victims of these alleged crimes are also allowed to be heard on issues related to guilt and innocence. After listening to this verbal assault on the Defendant – Judge’s find themselves reacting to the tirade and setting high bail even on seemingly insignificant cases.

The Colorado Bail Bond System – Pleading Guilty To Get Out Of Jail

I have watched over and over as many responsible fathers and mothers actually agree to plead guilty to crimes they did not commit to gain their freedom and save their families. The deal is presented to them – often in domestic violence cases – plead guilty and get out, or be stubborn – maintain your innocence and wait for your trial… and stay behind bars.

If you’re fortunate enough to use a bail bondsman to post your bail – you will pay between 10 to 15% of the “face amount” of the bail to gain your freedom. That “premium” goes into the pockets of the bondsperson who then posts the entire bond on your behalf. This premium is never returned whatever the result of the prosecution. Even if charges are never filed or, if filed, they are later dropped, that premium is lost.

The New Weapon – Colorado’s New Bail Law – Use It To Force Colorado Judges To Set Just Bail Bond Conditions – Giving The Accused A Chance

In 2013, the Colorado State Legislature amended the existing law that is the tool used by Judge’s setting bond. The Section is 16-4-103

16-4-103 – Setting and Selection of Bond/Criteria

The Trial Judge uses this law to:

  1. Determine the type of bond and conditions of release;
  2. Review of bond and conditions fixed upon return of an indictment or filing of an information or complaints which includes arrest warrants issued after the filing of charging documents.
  3. Apply a new presumption of release under least-restrictive conditions (unless the defendant is unbailable such as in the event of a charge of First Degree Murder (pursuant to the constitutional preventive detention provisions);
  4. Apply new individualized conditions of release which requires a mandatory consideration of a defendant’s unique financial condition or situation;
  5. Find “reasonable” financial conditions, and non-statutory conditions that are “tailored to address a specific concern;” and
  6. Consider ways (including new bond types in statute) to avoid unnecessary pretrial detention.

What follows is a reprint of the actual law as of the writing of this article – July 2015:

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.

The Colorado Bail Bond System – Unfair, Unjust, Shameful – Punish First Then The Right To Trial – A Tool To Fight Back