The fight against cash bail for most criminal charges continues

If you’re presumed innocent until proven guilty, how can they throw you in jail until you post bail, even before you’ve gone to trial?

The bail system was set up to ensure defendants show up for their court hearings. One study found that people miss court hearings 17% of the time, but usually because they forgot or had transportation problems. Is jail really the best option to solve that problem? Taking a person’s freedom for even one day before they are convicted is problematic, and it costs taxpayers — about 60% of people in jail are awaiting trial, according to Colorado Rep. Leslie Herod.

If the police arrest you and put you in jail, you’re supposed to have a bail hearing within 48 hours. In most misdemeanors and low-level felonies, the police might release you on a summons or a judge will release you on your promise that you’ll make all your court appearances (a “personal recognizance” or “PR” bond).

But for serious felonies involving violence and cases in which the prosecutor provides evidence that you are a “flight risk,” a judge might keep you in jail until you can post a “surety bond.” These bonds often are so high that you have to put a lien on a home or get a bail bondsman to post your bond (for a fee).

This “cash bail” system in the United States is unfair to anyone who isn’t rich or doesn’t own a home. Illinois just announced (Sept. 18, 2023) that it is the first state to eliminate the cash bail system entirely. Colorado justice advocates started down that road a couple of years ago but got derailed by “moral panic” over car thefts and a recent state Supreme Court ruling.

In 2019, the Colorado Legislature did away with bail for low-level crimes like trespassing or abandoning a vehicle. Turns out police were putting homeless people in jail for trespassing. Faced with a bail they couldn’t afford, the homeless person pleaded guilty to get out of jail.

Lawmakers tried to eliminate bail for misdemeanors and non-violent felonies in 2021. The bill would require the accused to be released on PR bonds or be required to wear ankle monitors, unless the prosecutor could prove the defendant was dangerous or likely to miss court hearings. But then came headlines about increased car thefts and the politicians stampeded toward making car thefts a felony. The bail reform law was killed by lawmakers who didn’t want to appear “soft on crime.”

Then in June 2023, the Colorado Supreme Court ruled that murder defendants had a right to request bail. OMG, murderers on the loose! The Republican lawmakers asked the Democratic governor to call a special session. But the only way to overturn the court ruling is to have voters approve a constitutional amendment (you’ll probably see that in November 2024). In the meantime, prosecutors are asking for and judges are giving accused murderers bails so high they can’t possibly make them. Three teenagers accused of killing a woman by throwing rocks at her car will stay behind bars unless they can raise $2 million in cash – each.

I tell my clients:

1. Show up for all your court dates.
2. If you’re in jail on a surety bond, I have a couple of bail bondsmen I trust to give you good service at a fair price.
3. If you are being held in jail unfairly, I will work relentlessly to help you get a fair release.
4. Show up for all your court dates.

The Colorado Freedom Fund provides help to those who have trouble meeting bail. It also advocates for removal of the cash bail system.

Also, note that the bail system is particularly unfair to non-citizens.