IDK, I am not a Constitutional scholar.
But it seems to me that unless the proof is evident and the presumption great, all persons are eligible for bail according to Section 16-4-101 (1)(a), Colorado Revised Statutes, which reads in pertinent part:
"§ 16-4-101. Bailable offenses - definitions
(1) All persons shall be bailable by sufficient sureties except:
(a) For capital offenses when proof is evident or presumption is great;"
Following the words, I look to Section 16-4-103 (1) and see that the bail standards set forth in that section apply - even to capital offenses - if there is no finding that proof is evident or presumption is great, because the exception in Section 16-4-101(1) does not apply:
"§ 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 ."
The words seem crystal clear to me.
If I were BM and effectively denied bail because the judge found me eligible but required a $50 million cash bond, I would file a special action directly in the Colorado Supreme Court arguing, (1) Colorado no longer has a capital offense because the death penalty was repealed, and (2) such a high bond violates the standards set forth in Section 16-4-103. For these reasons, BM's eligible for bail on the least restrictive terms consistent with the purposes of bail.
MOO as a non-attorney, of course.
^^
bbm
Respectfully, while the words may be "crystal clear," the interpretation does not follow-- beginning with the notion that repeal of the death penalty somehow did away with
capital offenses in Colorado! Second, the 2013 bail reform statute referenced was essentially written for
non-capital offenses-- (non-excepted persons), very much mirroring federal bail reform.
Since 1876, The Colorado Constitution was very clear that
capital offenses are the exception to the rule, and the statute continues to mirror the same.
And case law provides that challenging bail determined at the discretion of the court (such as
capital offenses, as I've posted) will not be reversed on appeal.
When a judge rules within his or her discretion, an appeal of that ruling is governed by the “abuse of discretion standard” where 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.
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.
In setting bail for BM, charged with a
capital offense, the court clearly demonstrated the decision fell within a range of reasonable options. There's simply no basis here to even suggest the court would request $50M cash bail:
The prosecution asked for a $10 million bond. In response, the defense asked for "an amount that is reasonable" — a $50,000 cash bond.
Judge Murphy said $10 million was too high and $50,000 was too low. He set the bond for $500,000, cash only. Bond cannot be posted until noon on Monday, he said.
https://www.thedenverchannel.com/ne...-judge-rules-barry-morphew-will-head-to-trial
MOO
C.R.S. 16-4-101
16-4-101. Bailable offenses - definitions.
(1) All persons shall be bailable by sufficient sureties except:
(a) For capital offenses when proof is evident or presumption is great; or
ANNOTATION
Law reviews.
For article, “The Use of ‘No Bond’ Holds in Colorado”, see 32 Colo. Law. 81 (Nov. 2003).
Annotator’s note.
Since § 16-4-101 is similar to § 16-4-101 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under former provisions similar to that section have been included in the annotations to this section.
[..]
Proviso refers to proof of guilt.
The requirement in the constitution that capital offenses are nonbailable when “the proof is evident or the presumption great” simply goes to the proof of guilt, not to the kind of proof needed for the imposition of the death penalty. Corbett v. Patterson, 272 F. Supp. 602 (D. Colo. 1967).
Offense does not cease to be capital where death penalty may not be imposed.
Although by statute the death penalty cannot be imposed on the basis of only circumstantial evidence,
the petitioner does not cease to be charged with a capital offense and thus become entitled to bail as a matter of right where the prosecution probably did not have the direct evidence necessary to seek the death penalty.
The offense with which he was charged was still a capital one, even if it should later develop that the type of evidence adduced did not support a verdict imposing the death penalty. Corbett v. Patterson, 272 F. Supp. 602 (D. Colo. 1967).
And denial of bail unaffected by constitutionality of death penalty.
The United States supreme court decision prohibiting imposition of death penalty in the circumstances then before it did not preclude denial of bail pursuant to
state constitutional provision that bail may be denied where capital offense is charged when the proof is evident, or the presumption great, that defendant has committed the charged offense. People ex rel. Dunbar v. District Court, 179 Colo. 304, 500 P.2d 358 (1972).
[..]
