AMERICAN BAIL COALITION
It seems the Colorado General Assembly cannot resist tinkering with judicial discretion in criminal cases. Senate Bill 62 is the latest assault on the state’s judges, forcing them by statute to discriminate against criminal defendants for purposes of bail, based solely on the charge lodged by the prosecution.
Judicial discretion is central to the criminal justice system. Unfortunately, Senate Bill 62 would create presumptive free bail for those charged with Class 4, 5 and 6 felonies and all misdemeanor crimes in Colorado. As drafted, judges would still have limited discretion to impose bail on defendants in this category, but these exceptions have different legal standards than for those charged with crimes outside of it. Those charged with Class 1, 2 or 3 felonies would not be eligible for free bail but would be required to have a judge set bail for them.
Because Colorado is a right-to-bail state, the very premise of Senate Bill 62 challenges that guarantee to its citizens, individuals not in those classes and the victims of crime. As specified in the state Constitution, all persons shall be bailable by sufficient sureties except in capital cases, where the proof is evident or presumption is great. Sufficient sureties is a key component of the law as it means the people, represented by district attorneys, have a right to argue the bond amount imposed by a judge is inadequate. That is, a free bail or low bail cannot reasonably be considered sufficient sureties in some cases. In fact, the very constitutionality of Senate Bill 62 is highly in doubt because it restricts judicial discretion to impose bail that meets that legal definition.
The creation of two distinct groups under Senate Bill 62 may violate the Equal Protection Clause. Members of one group are conferred the benefit of a personal recognizance bond (or at least a very high change of one) by virtue of the category of crimes they fall under. Members of the other group are denied those same rights because they are in the “wrong” group. What is the basis for that distinction? According to nearly eight hours of Senate Judiciary Committee testimony on this bill, the answer is there is no actual basis for drawing a line between the two groups other than some legislators think a particular list of crimes is really, really serious. But what about these other crimes over there? We guess they’re not so bad. No data was presented to the Senate Judiciary Committee that informed as to whether persons in any of these categories of crimes were more likely to commit a new crime or fail to appear in court than another.
It’s important to point out that when trying to predict pretrial misconduct, the crime a defendant is charged with is nearly a non-factor — a fact borne out in a study of the Washington, D.C., pretrial system conducted by the Pretrial Services Agency for the District of Columbia in 2013. The study found that variables related to the charge only comprised 5% of the predictiveness of the instrument for purposes of a failure to appear in court, and only 8% as to the risk of a new crime. Instead, prior criminal history and record of failing to appear in court were the key factors in calculating the probability of a defendant violating the terms of their release.
Multiple studies for a generation have concluded that the charge alone simply does not predict pretrial misconduct. Some reports have even found that in some cases, the more serious the charge, the less likely a person will be to fail to appear in court or commit a new crime, particularly in juvenile matters.
In a 2019 letter to then-Chief Justice Charles Daniels of the New Mexico Supreme Court, the Social Research at the University of New Mexico determined that “the proposition that a defendant’s current charge alone is predictive of his or her subsequent involvement in dangerous crimes is not supported in extant research.”
Two simple examples drive this point home. Person A is charged in Colorado with a non-violent, Class 3 felony. He has no prior record, has never been arrested, is an upstanding lifetime resident of the state and has never failed to appear in court. By statute, in order to be released, he would have to post bail, which if he failed to do, would serve to detain him in jail. On the other hand, person B is charged with a violent Class 4 felony. He has four prior failures to appear, a criminal record a mile long and no ties to the community. This individual would start off with a presumptive personal recognizance bond.
Senate Bill 62 is written so poorly, it is unclear if heightened scrutiny under the Equal Protection Clause would apply in the context of these examples, which if it does, would absolutely deal a fatal blow to the measure. However, even if it did not apply, this scheme to statutorily force judges to discriminate against defendants for purposes of bail, based solely on the criminal charge, completely lacks any rational basis. Thus, any defendant not included in the category of those who receive a presumptive personal recognizance bail, would have reason to contest their standing. Their challenge would be easily won and the statute invalidated on equal protection grounds.
Judicial discretion is the touchstone of bail. The inherent power of the local judges to assess cases on an individual basis is what the constitution was designed to address in the handling of criminal actions. The legislature got it right in 2013 by eliminating such arbitrary discriminations, and there is no reason to go back.
— Jeffrey J. Clayton is the Executive Director of the American Bail Coalition.