First-degree murder suspects can now post bond in Colorado — some politicians want to change that

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Hart Van Denburg/CPR News
The Colorado Supreme Court and Court of Appeals in Denver, May 16, 2022.

In Colorado, every criminal defendant has the right to get out of jail while they await trial — as long as they can afford to pay their bond. 

Until recently, there was an exemption to that rule. Judges could order people accused of first-degree murder held without bond. But that changed last month with a state Supreme Court ruling, when the justices concluded that even defendants in those most serious of cases should have a chance to post bond.

The ruling does not mean that suspects will automatically walk free, especially since judges can still set bonds well out of defendants’ financial reach. But the court decision has led to demands for change, including from statehouse Republicans who say that Gov. Jared Polis should convene a special legislative session on the topic.

“It’s a potential public safety issue,” said Sen. Paul Lundeen, the Republican minority leader, arguing that courts could end up letting dangerous people out of jail. “We should come back together and develop an immediate solution.”

The state legislature wrapped up for the year in May. Special sessions can be called to address pressing issues, though they’re rare and it can be costly to call lawmakers back to the Capitol.

Gov. Jared Polis said he too wants to ensure those accused of murder are kept locked up, but he and top Democrats argued there was no point in calling a special session. Undoing the high court’s ruling would likely require voters to approve a constitutional amendment, and that can’t happen until 2024.

“The Governor supports changes to prevent suspects formally charged with capital offenses from getting out on bail,” wrote spokesman Conor Cahill.

Defendants aren’t necessarily going free.

The court’s legal reasoning is simple: The state constitution says that bond can only be denied for “capital cases.” A “capital” case means one potentially punishable by death. And since lawmakers abolished Colorado’s death penalty in 2020, there are no “capital cases” in state law anymore.

The court ruled that a lower court must set a bond for Jerrelle Aireine Smith, who was charged last year with first-degree murder in a 2021 killing. 

The June 20 opinion has had immediate effects. In the weeks since, judges have set bond requirements for several murder suspects who were previously denied bond. Those cases include:

But none of those defendants have actually posted bond to leave jail, according to court records. In each one, the judge set a cash bond — meaning that the defendant would have to provide the full multi-million-dollar sum to the court.

In other cases, a defendant might be allowed to post a “surety bond” — which requires only a portion of the cash up front.

Even with the high court ruling, allowing judges to set these kinds of steep requirements will likely keep many defendants in jail, according to Ian Farrell, associate professor of criminal law at the University of Denver Sturm College of Law. They also can require conditions like check-ins or monitoring.

“This right to bail does not mean that you have a right to be let out of jail and go free pending trial,” he said. “Judges are still able to give conditions for bail including requirements for bond or cash bail.”

Judges are free to set higher bonds to account for factors such as the likelihood that someone will flee, as well as how wealthy the defendant is. In the case of James Craig, the judge’s $10 million cash-only bond means that he will remain in jail. 

“With the setting of a $10 million dollar, cash-only bond, Dr. Craig does not have the means, ability, nor intention of posting bond,” wrote defense attorney David M. Beller in an email to CPR News. 

He added that Craig “does not wish to be either a scapegoat nor the cause for a public demand for constitutional change. He wants only what the constitution blindly entitles, including exercising his rights and protections.”

Bond requirements are meant to allow defendants freedom while their case is pending — while still providing an incentive to return to court, Farrell said. Capital cases were denied bond not because the crime was more severe, but because defendants who fear they’ll be executed have a much greater incentive to break their bond and flee, he said.

“There’s a long history of moral panic relating to issues like this,” he said, adding that he thought concerns about the change were being overplayed.

What can the legislature do?

Colorado’s bond laws, including the exemption for capital cases, are based in the state Constitution. The Constitution can only be changed by a ballot measure with the support of 55 percent of voters. And the next opportunity isn’t until fall 2024, due to the state’s rules for ballot measures.

“A special session now would do nothing to actually address this issue immediately. Instead, it would be much more responsible to work together to build consensus among various stakeholders – Republicans and Democrats alike – to find a long term solution,” said Democratic Senate President Steve Fenberg in a written statement. 

House Democratic leaders echoed that sentiment, with Majority Leader Monica Duran decrying “clearly partisan attacks.”

Lundeen, the Republican minority leader, acknowledged that a constitutional amendment would likely be needed. But he said a special session could generate some ideas for a short-term solution. (Republicans have also been calling for a special session to come up with an alternative to Democrats’ plan for property taxes.)

“I’ve talked to a couple of different attorneys that have different strategies and different legal theories — but that’s something that should be thoroughly vetted and taken care of in the course of a special session,” Lundeen said.

Farrell, the law professor, was skeptical that the legislature could make any real change in a special session, pointing to a 2024 amendment as the only effective option. 

Lawmakers could try to change definitions in state law but, “especially if it was in response to this ruling, the court would recognize it for what it is, which is an attempted end run around the language in the constitution.”