Colorado’s New Bail Bond Law Means More Fairness In Setting Bail Bonds and Bail Bond Conditions

By H. Michael Steinberg – Colorado Criminal Defense Lawyer For Bail Bond Issues

Colorado’s New Bail Bond Law Means More Fairness In Setting Bail Bonds and Bail Bond Conditions

With the passage of the Pretrial Bail Law  in 2013 – H.B. 13-1236 – on May 11, 2013, Colorado started the process to reform bail bond laws that had led to unfair and unintended results for decades (since 1972 – 42 years!).

The Colorado Commission on Criminal and Juvenile Justice (CCJJ) was primarily responsible for the changes.

While judges will continue to have unfettered discretion in setting bond – the new law gives judges more options to use other bond conditions and pretrial programs to assure compliance with court orders.

The First Significant Change – 16- 1-104 – The Definition of Bail

Prior to the enactment of the new law a Bail Bond was defined as only “an amount of money.” After the passage of the new law a bail bond is more broadly defined as “a security, which may include a bond with or without monetary conditions” and the term “security” is used further defined as a pledge.

Money is now not the only “currency” that can secure the defendant’s appearance in court. Other conditions have been placed on the playing field as “cash.”

Non-monetary based conditions of pretrial release are – after the new law – focused on the individual who is in court at that place and at that moment in time.

Language that used to read “setting the amount of bail and type of bond” – now reads “setting the type of bond and conditions of release.”

The Second Significant Change – A New “Individualized Approach To Setting Bail

While the criteria for setting bond still contains a  lengthy and complex statute – it is the key to your freedom if you are in custody seeking release. Read it carefully – lawyers do.

Here is a link to the entirety of the new law:

C.R.S. Section 16-4-103 Setting and selection type of bond – criteria

A Summary of The Key Changes To C.R.S. Section 16-4-103 – Setting Bond In Colorado

This law – which I have argued for more than 35 years importantly – is substantially different from the predecessor law.

A summary of the new bail setting law would include the following list of changes. The new law does these things.

The Court, to determine the type of bond and conditions of release, a Judge

(1) Must now 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);

(2) Engage in a presumption of release under least-restrictive conditions unless the defendant is unbailable pursuant to the constitutional preventive detention provisions;

(4) Focus on the individualization of conditions of release (including in “bond schedules”) and express mandatory consideration of a defendant’s financial condition or situation;

(5) Apply “reasonable” financial conditions, and non-statutory conditions to be “tailored to address a specific concern;” and

(6) Make certain to give consideration of ways (including new bond types in statute) to avoid unnecessary pretrial detention.

The Court must apply – in its individualized bail determination – the use of an empirically developed risk assessment instrument while it considers the bail-setting criteria previously set out in Sections 16-4-105 (1) (a) – (k).

While the law does not define “least restrictive” conditions, the term is well understood to mean that cash or surety bonds are clearly “more restrictive” than unsecured bonds such as personal recognizance bonds (PR Bonds).

The Third Significant Change – New Provisions Concerning “Secured Money Conditions” (if they are ordered)

At the time of setting a “more restrictive bond” such as a cash or surety bond – the Court must”

….presume that the defendant is “eligible for release on bond with the appropriate and least restrictive conditions” (Section 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” (Section 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” (Section Section 16-4-104 (1) (c), 16-4-105 (7));

…”consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration” (Section 16-4-103 (4) (c)).

The Fourth Significant Change – Section 16-4-104 – Changes To The Types of Bond

While the old law relied on basically TWO bond types – unsecured or unsecured “personal recognizance” bonds – the new law lists FOUR bond types.

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 News Colorado Bail Bond Law Finds A Way Around The DA’s Objections

While under the old version of the law a DA could object to a PR – personal recognizance bond in certain situations thus compelling judges to set a secured cash bond.

The new law allows the DA’s objection only to a subsection (a) bond. Judges may set a “Subsection (b)” unsecured personal recognizance bond with additional non-monetary conditions.

The Fifth Significant Change – Section 16 – 4 – 105 – Changes To The Conditions of Release

This new section – 16-4-105 provides that secured monetary conditions need not be “automatic” and that the conditions of pretrial release include the use of pretrial services programs that can substitute for monetary bonds to ensure the Defendant’s appearance.

The Sixth Significant Change – Section 16 – 4 – 106 – Pretrial Services Programs

This section describes pretrial services programs and supports the notion that judicial districts should “make all reasonable efforts” to implement an empirically developed risk assessment instrument and a structured decision-making design based on risk.

The Seventh Significant Change – Section 16 – 4 -107 – A New Hearing After The Setting of Monetary (Cash) Conditions of Bond

If a secured bond (money bond) is ordered, a Defendant has the right to file a “motion for relief.” The motion can present evidence “not fully considered” by the judge at the bail hearing.

While a judge may deny the motion without a hearing – the judge must do it within 14 days and must use empirically developed risk assessment instruments.

Conclusion – Changes Bring Much Needed Reason To The Setting Of Colorado Bail Bonds

Judges setting bond amounts and conditions today can often fall into old habits of setting high bail bonds in Colorado criminal cases such as relying on:

•  emotional appeals from the alleged victims in a criminal case.
• applying so-called “scheduled bonds” – which bond amounts were set decades ago and are still routinely used by judges in Colorado without any individualization to the person whose freedom is at stake.
• – the level of the felony charged – specifically the visceral reaction of the judge to the nature and number of the charges – and not all of the factors listed in sections 4 (a) – through – (j) above.

That is no longer the law in Colorado.