Colorado lawmakers want to change the state constitution so that first-degree murder defendants can once again be held in jail without bail.
The push comes just eight months after the Colorado Supreme Court ruled that all criminal defendants — including those charged with first-degree murder — must be given the chance to pay bail and be free while the criminal cases against them are pending.
Lawmakers now propose sending a constitutional amendment to Colorado voters in the November election that would, if approved, allow first-degree murder defendants to be held in jail without bail in cases where judges find there is significant evidence against the defendant.
“I don’t believe the voters of Colorado want those who are charged with first-degree murder to be able to get out pending their trial,” 17th Judicial District Attorney Brian Mason said during a legislative hearing about the amendment Wednesday.
Prior to the June Colorado Supreme Court ruling, first-degree murder defendants could be held without bail in Colorado because the crime was considered a capital offense. Because the state abolished the death penalty in 2020, the justices ruled that first-degree murder defendants charged since then have a right to bail.
The ruling led judges across the state to set multimillion-dollar bail amounts for defendants charged with first-degree murder, with at least one bail set as high as $100 million.
Lawmakers on Wednesday expressed concerns about the high bail amounts and whether they were arbitrary and un-payable.
“The current state law creates a significant socio-economic disparity, as only the extremely wealthy will be able to afford bail,” said state Rep. Mike Lynch, a Wellington Republican and sponsor of the proposed constitutional amendment. “If you happen to be wealthy enough you will be able to make that bond, and that is not super fair.”
When setting bail, judges may consider a variety of factors, including the defendant’s living situation, employment, character and support network. Judges may also look at the likely sentence in the case, a defendant’s prior criminal record, any past failures to appear in court, the likelihood the defendant will commit more crimes if released and whether they’re likely to harass witnesses or victims, according to state law. Any monetary bail amount must be “reasonable,” state law says.
Four elected district attorneys testified in favor of the constitutional change during Wednesday’s hearing. First Judicial District Attorney Alexis King testified that families of murder victims do not feel safe when suspects can be released from jail on bail.
“The No. 1 question every family asks is, ‘Is the defendant going to get out?’” she said. “And no amount of money, no matter what we have argued in bond hearings earlier that week or maybe earlier that day, makes them feel safe.”
The district attorneys argued that people facing first-degree murder charges have an especially high incentive to flee from the court process because they face life in prison without the possibility of parole if convicted.
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The prosecutors could not offer an example of a first-degree murder defendant who posted bail and then fled after being released from custody, and noted that most first-degree murder defendants have not been able to pay the very high bails set by judges and so have remained in jail while awaiting trial.
“There haven’t been additional instances of escaping, of fleeing or flight risk — I don’t necessarily see an urgent need at this moment for this,” said state Rep. Lorena Garcia, an Adams County Democrat. “I can’t in good conscience restrict someone’s constitutional right that they are entitled to.”
Garcia was one of two votes against the proposed amendment in the House Judiciary Committee on Wednesday. The measure passed out of committee on an 8-2 vote and will need to be approved by a two-thirds vote of all lawmakers to be put to Colorado voters this fall.
The proposed constitutional amendment is also coupled with a bill that would make legal adjustments to jury selection in first-degree murder cases that would be necessary if voters approve the constitutional change.
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