Somebody recently told me that I should set down in writing what we still need to do in Colorado for pretrial justice. We started down this path several years ago, just learning about bail and pretrial reform. After a year or so of formal study, the Bail Subcommittee of the Colorado Crime Commission made three recommendations of how to improve the state's bail laws. Those recommendations were ultimately incorporated into the bills passed in 2013 and 2014.
Unfortunately, those recommendations covered only what we call "bail," or release, and didn't have anything to do with what we call "no bail," or detention. Pretrial justice involves both "bail" and "no bail," and to make improvements to "no bail," we were going to have to change not only the statutes, but also the constitution. Colorado's constitution, like most in America, makes the detention decision hinge on top charge, rather than on empirical risk of pretrial misbehavior, which automatically means that the constitution is outdated and in need of revision.
Colorado is like about 19 other states with preventive detention in their constitutions. Preventive detention is the ability to hold defendants without bail in cases of extreme risk. Specifically, the Colorado provision only allows a judge to detain a defendant if he or she has the requisite charge (a crime of violence), along with some showing of danger (significant peril), and some precondition (like while on probation, parole, bail, or after certain other felony convictions). The prosecutors and judges I know understand that these three elements make using the Colorado preventive detention provisions extremely rare. We hardly ever see a defendant with all of these things -- charge, danger, and precondition -- but we still have money, so basically judges deal with extremely high risk defendants by setting million-dollar cash only financial conditions.
Here's my best illustration. Not too long ago, a defendant named Bruco Eastwood, a guy who had mental illness (we know this because later he was declared not guilty by reason of insanity), took his dad's hunting rifle, went down to a local middle school, and started shooting kids. Nobody died, thank goodness, but this guy represented about as high of a risk to both public safety and for failure to appear for court that you can possibly represent.
The problem was that Bruco Eastwood didn't fall into the categories in our constitution that would allow judges to hold him without bail. In particular, he didn't have the requisite preconditions. So, instead of using the lawfully enacted constitutional process to detain him, we had to go through the semi-charade of setting bail with unattainable conditions of release that were actually designed to keep him in jail. In the end, he got a one-million dollar cash-only financial condition, along with a bunch of non-financial conditions just in case, God forbid, he actually got out.
This sort of thing -- setting bail with big amounts of money to detain people -- is happening all over the country, and it's basically the same thing that happened in the 60s, 70s, and 80s, before we even knew what preventive detention really was. Back then, we had a whole period of bail reform that led most states to change their constitutions or statutes to allow judges to detain people without the charade. And when we made those changes three and four decades ago, we quite reasonably created the detention availability "nets" based on certain super serious crimes -- indeed, using top charge was the only real way we had to give everyone a quick assessment of risk, and besides, the U.S. Supreme Court had approved of a detention scheme that used a charge-based net. So what you have today is a bunch of states that allow detention for high risk, but that risk is typically articulated primarily in terms of what the defendant is charged with.
Starting in about 2003, though, various American jurisdictions started getting really good at assessing a defendant's pretrial risk by using empirical or research-based risk assessment instruments, which use mathematics and statistics to give us a pretty good idea of which defendants will come back to court and which will stay out of trouble pretrial. And what we're finding out is that often these instruments show that some people with serious charges can be pretty low risk while some people with not so serious charges can be pretty high risk. In fact, now it's getting pretty common to see people wander into our justice system who are extremely high risk but who are technically "bailable" under any particular state scheme. When that happens, judges are setting those super high bonds, but it's just a matter of time before an appellate court says that the practice is unlawful. Think about it -- if you already have a lawfully enacted process for detaining defendants without bail, is it okay for a judge to say, "Well, I'm not going to use that process; instead, I'll just do it my way by using money?" It's as if a judge had said, "Yeah, I know you have a right to a jury trial, but I think I'll just skip that."
By the way, low and medium risk people are affected by all of this too. If you leave money in the system, as we did in Colorado, and give judges no choice but to use it for high risk folks, pretty soon they're using money on everyone, and the low to medium risk people can't get out of jail either. Overall, it's a pretty screwed up system, but it's what we have in America -- low to medium risk people can't get out of jail due to money, and high risk people can buy their way out of jail using money.
Oh, and lest you say, "Well, the high risk people can't get out if you set a million dollar bond on them," then just read the headlines. I've seen people post $10 million bonds. And when it comes to cash-only bonds, I once saw the Saudi Arabian government post a $2 million cash bond. And don't forget, the whole idea of "setting bail to detain" is likely illegal. There was a time in the history of bail in America when we all agreed on this. As we learn more, I think we're going to start seeing appellate courts agree, too.
The bottom line is that we only went halfway with pretrial justice in Colorado. We did some things with "bail," but we didn't get rid of money (mostly due to the inevitable compromises based on politics). And we didn't do anything with "no bail." I remember trying to get people to keep going, but for a bunch of reasons -- including the fact that it's hard to change a constitution, and at least one obstinate member of the Bail Subcommittee did his best to make everyone miserable even when we all agreed -- we stopped.
We know what we still have to do. New Jersey figured it out, too, and it's changing its constitution and statute to infuse pretrial risk into its release and detention scheme. Same with Delaware. Practically every state needs to do the same thing, and Colorado probably needs to do it more than most. The future of pretrial justice in Colorado means getting everyone together to craft the proper "bail/no bail" dichotomy in our constitution using pretrial risk instead of charges and preconditions. If we create a dichotomy that everyone can live with, and then we set up a lawful way to detain the 10 to 15 percent of defendants who are extremely high risk, we can add language to make sure that money doesn't continue to interfere in the release and detention process. In the end, some relative small percentage of defendants will be detained through a procedural-due-process-laden hearing, and the rest will be released immediately on varying levels of supervision, which could be as minimal as a phone call reminder like you'd get with a ticket, but which could include all sorts of non-financial conditions to protect people and make sure the defendant comes back to court.
It's actually kind of simple.
