No bail for first-degree murder in Colorado, explained

That change, added to a vote by state lawmakers, would again allow judges to hold defendants in first-degree murder cases without bail before trial.

The state constitution states that the court must set bail for defendants in all criminal cases except for “capital cases”. A “death case” is a case potentially punishable by the death penalty, which was first-degree murder until 2020, when Colorado lawmakers abolished the death penalty. That change led the state Supreme Court to conclude last year that first-degree murder no longer meets the criteria for denying bail.

The ruling sparked bipartisan outrage among lawmakers, who voted overwhelmingly to call on Coloradans to amend the Constitution to again deny bail in murder cases when prosecutors have proven they have enough evidence have a trial and a reasonable chance of conviction.

Because it is an amendment to the state constitution, approval from at least 55 percent of voters is required for passage.

Here is the language you will see on your ballot:

Should there be an amendment to the Colorado Constitution that provides an exception to the right to bail for first-degree murder cases when there is evidence or there is a strong presumption?

How would Amendment I work?

The concept of bail serves two purposes in the justice system. If a defendant is unable to post bail, they are financially compelled to show up for their court dates. However, if a judge sets bail high enough, it can also be a de facto way to keep someone he deems dangerous behind bars until trial.

That's exactly what many judges in first-degree murder cases have done in the year since that Supreme Court ruling. Bail for the three teenagers accused of a deadly rock-throwing spree in Jefferson County has been set at $2 million each. An Arapahoe County man accused of shooting his soon-to-be-ex-wife received a $100 million bond. However, large bond amounts may be vulnerable to legal challenges from defense attorneys.

Under Amendment I, the judge presiding over a first-degree murder case would hold a so-called “evidence obvious, presumption great” hearing in which prosecutors would lay out the bare outlines of their case. If the judge agrees there is enough evidence to move forward, the defendant would automatically remain in jail until his trial.

Who is in favor of Amendment I?

Lawmakers putting this amendment on the ballot say they are simply fixing an unintended consequence of repeal of the death penalty and returning the courts to a practice that has existed since the founding of the state.

They also argue that the practice of holding people in jail on incredibly high bail bonds unfairly benefits the wealthiest defendants, who may actually be able to meet the court's demands. And in these cases, public safety could also be at risk.

The change is supported by Colorado's district attorneys. During hearings on the bill, prosecutors said setting bail for these defendants, regardless of the amount, increases stress and uncertainty for victims' families.

Who is against Amendment I?

The amendment has no organized opposition. But some justice reformers argue that creating an entire class of crimes for which people can be denied bail violates the “innocent until proven guilty” principle.