We'll also see an attempt to reduce the bail originally set by the judge. This is a really good article on the issue in Colorado.
A Comprehensive Guide to Colorado Bail Laws
Understanding why a Judge has the Power to set the Conditions of Bail
You may wonder why a judge has the legal right to force you to remain in Colorado (away from your family and friends) as a condition of your bond when you are a resident of another state.
This article addresses issues surrounding the setting of bail in Colorado and the laws that give judges so much power and authority to set the conditions of your freedom even though you have been convicted of nothing and are presumed to be innocent. A recent Colorado Supreme Court case People v. Jones , 2015 contains an analysis if the almost limitless power of a Judge to set bond 16-4-204 and 13-4-102, C.R.S.
The Almost Absolute Power of a Colorado Trial Judge to set the Conditions of Bond
When a judge rules within his or her discretion and an appeal of that ruling is governed by what is called the “abuse of discretion standard” that judge’s ruling which includes the setting of and conditions of bond will NOT BE REVERSED ON APPEAL UNLESS THERE IS AN ABUSE OF THAT DISCRETION.
What is an abuse of discretion? A lower Court will only be found (on appeal) to have abused the Court’s discretion if the Court’s decision was manifestly arbitrary, unreasonable, or unfair, or if the Court misconstrues or misapplies the law.
The test on appeal of the Judge’s decision is not whether another Judge “would have reached a different result but, rather, whether the trial court’s decision fell within a range of reasonable options.”
Therefore the “one bite of the apple” rule applies as a reality to Colorado criminal defense lawyers. Your Colorado criminal defense lawyer will have one first chance to persuade the trial judge to set reasonable conditions of bond that favor the defense at the very start of the case.
The Motives of a Judge in Setting Bond What is the Judge Thinking?
Colorado law mandates that the primary interest in setting the amount and conditions of bond is to make certain that a defendant on bond will appear at the time and place required to answer to the criminal charge. Under section 16-4-103(3)(a) the type of bond and conditions of release shall be sufficient to reasonably ensure the appearance of the person as required.
For example, Colorado law allows a Judge the right to refuse a Defendant the right to leave the state while a case is pending. The Judge may find that denying the Defendant the right to leave the state “reduces the risk of flight.” Put another way compelling a Defendant to remain in the state makes it more likely the Defendant will appear at all court proceedings and less likely the Defendant will abscond.
The Strongest Argument in Support of the Defendant’s Right To Reasonable Conditions of Bond is Derived From The ABA Standards Of Criminal Justice Pretrial Release 10-5.2
Standard 10-1.4.Conditions of Release
Consistent with these Standards, each jurisdiction should adopt procedures designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond.Additional conditions should be imposed on release only when the need is demonstrated by the facts of the individual case reasonably to ensure appearance at court proceedings, to protect the community, victims, witnesses or any other person and to maintain the integrity of the judicial process.
Whenever possible, methods for providing the appropriate judicial officer with reliable information relevant to the release decision should be developed, preferably through a pretrial services agency or function, as described in Standard 10-1.9.
When release on personal recognizance is not appropriate reasonably to ensure the defendant’s appearance at court and to prevent the commission of criminal offenses that threaten the safety of the community or any person, constitutionally permissible non-financial conditions of release should be employed consistent with Standard 10-5.2.
Release on financial conditions should be used only when no other conditions will ensure appearance. When financial conditions are imposed, the court should first consider releasing the defendant on an unsecured bond. If unsecured bond is not deemed a sufficient condition of release, and the court still seeks to impose monetary conditions, bail should be set at the lowest level necessary to ensure the defendant’s appearance and with regard to a defendant’s financial ability to post bond.
Financial conditions should not be employed to respond to concerns for public safety.
The judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.
Consistent with the processes provided in these Standards, compensated sureties should be abolished. When financial bail is imposed, the defendant should be released on the deposit of cash or securities with the court of not more than ten percent of the amount of the bail, to be returned at the conclusion of the case.
In addition to providing for an early determination of the type of bond and conditions of release for all bailable defendants, the statutory scheme details the purposes to be served by, and the criteria to be considered in making, those determinations.
The Four Key Colorado Laws That Govern the Setting of Bail and Bail Conditions
There are FOUR key statutes that govern bail bonds in Colorado.
They are:
16-4-103, C.R.S. Setting and selection type of bond criteria); the various types of pretrial bond available for setting by the court,
16-4-104, C.R.S. Types of bond set by the court); specific conditions of release to be made applicable to bonds,
16-4-105, C.R.S. Conditions of release on bond); and authorization for the court to modify the conditions of bond, including the procedural prerequisites for doing so,
16-4-109, C.R.S. Reduction or increase of monetary conditions of bond change in type of bond or conditions of bond definitions).
In 2013 Everything Changed Colorado’s New Pretrial Bail Law
A summary of the significant changes in approach to setting Bail in Colorado is provided below (attribution is given to the Colorado Commission on Criminal and Juvenile Justice (CCJJ)).
The legislative history of the new law…reveals that the General Assembly was primarily concerned with reducing unnecessary pretrial detention by limiting the use of secured financial conditions of release, with an overall strategy of using research-driven best practices in the administration of bail. The new law was drafted so as not to diminish existing judicial discretion at bail, and many of the substantive changes are optional; nevertheless, like the prior law, the new statute contains important mandatory provisions that judges and others should note.
Significant statutory provisions include:
16-1-104 Definition of Bail
This section changes the definition of bail from “the amount of money” to “a security, which may include a bond with or without monetary conditions.” The term “security” is used broadly, as in a pledge, and does not itself mean money. The definition is important because it represents the intent of the General Assembly to place the use of money on par with all other non-monetary conditions of pretrial release that must be individually assessed for legality and effectiveness.
To further emphasize this intention, all references to judges “ setting the amount of bail and type of bond” have been changed to “setting the type of bond and conditions of release.”
16-4-101 Eligibility/Bailable Offenses
This section, which mostly mirrors Article II, Section 19 of the Colorado Constitution concerning the right to bail, remains the same with one important exception. On the House floor, a fifth category of offenses for which bail may be denied was added to the statute. This new Section, 16-4-101 (1) (b) (V), along with Section 16-4-101 (1) (b) (IV) from prior law, has no counterpart in the Colorado Constitution and has thus been appropriately described by the Colorado Attorney General’s Office as “constitutionally suspect.”
16-4-103 Setting and Selection of Bond/Criteria
This section is substantially different from prior law, and contains the language meant primarily to implement the three CCJJ recommendations as well as housing various parts of prior Section 16-4-105 concerning criteria for setting bond conditions. Readers should note the important interaction between provisions mandating action through the use of “shall” or “must,” and those that are merely permissive.
Overall, this section requires
- the court to determine the type of bond and conditions of release;
- 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);
- a presumption of release under least-restrictive conditions unless the defendant is unbailable pursuant to the constitutional preventive detention provisions;
- individualization of conditions of release (including in “bond schedules”) and express mandatory consideration of a defendant’s financial condition or situation;
- “reasonable” financial conditions, and non-statutory conditions to be “tailored to address a specific concern;” and
- consideration of ways (including new bond types in statute) to avoid unnecessary pretrial detention.
16-4-104 Types of Bond
While the prior statute technically listed two bond types unsecured (or “personal recognizance”) and secured secured bonds were more colloquially named based on how they used money as a condition of release (e.g., “cash” or “surety”). The new statute now lists four bond types, each more appropriately defined by its restrictive nature. 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 new law restricts the power of the District Attorney
Under prior law, district attorneys could withhold their consent to a personal recognizance bond in certain situations, forcing judges to set secured money amounts. Under the new statute, district attorneys may only withhold consent to a Subsection (a) bond, thereby allowing judges to still set a Subsection (b) unsecured personal recognizance bond with additional non-monetary conditions.
When secured bonds are ordered, defendants may pay the secured money conditions in all methods previously allowed by statute, although payment with stocks and bonds has been eliminated. As before, nothing in the new statute prevents judges from ordering a secured money condition including a condition that the defendant pay the security in only one of the allowable methods, such as through a “cash-only” bond.
16-4-105 Conditions of Release
This new section contains all discretionary and nondiscretionary conditions of release. The mandatory statutory conditions from prior law are the same, but provisions setting presumptive monetary conditions for certain charges have been eliminated. Additionally, a separate section was added for secured monetary conditions to reinforce the notion that secured money at bail should not be automatic. Finally, the conditions of pretrial release previously embedded in the subsection creating pretrial services programs have been included in this section.
Appealing the Judge’s decision on Bail and Bail Conditions
16-4-107 Hearing After Setting of Monetary Conditions of Bond
Seven days after a secured bond is ordered, Defendants may file a motion for relief presenting evidence “not fully considered” by the bail setting judge . Judges may summarily deny the motion, but must do so within 14 days and only after considering “the results of any empirically developed risk assessment instrument.”
Before a judge sets any secured financial condition, the judge shall:
presume that the defendant is “eligible for release on bond with the appropriate and least restrictive conditions” (§ 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” (§ 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” (§ § 16-4-104 (1) (c), 16-4-105 (7));
“consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration” (§ 16-4-103 (4) (c)).
