DENVER — Historically in Colorado, everyone — no matter the crime — has had a right to bail or bond as they await trial.
“With exceptions," said Vince Buckmelter, a criminal defense attorney at Buckmelter Law, LLC.. "One of those exceptions was if you were charged with a capital offense and proof was evident and presumption great.”
First-degree murder was historically a capital offense in Colorado and traditionally came with a hefty punishment — potentially the death penalty. But in 2020, the Colorado state legislature repealed the state's death penalty.
On June 20, the Colorado Supreme Court ruled that because the state abolished the death penalty, first-degree murder suspects charged after July 1, 2020, have a right to bail.
“The Supreme Court, in June 2023, said because we don’t have the death penalty, there are no more capital cases,” Buckmelter explained. “As a result, these defendants are eligible for a bond setting.”
Justice Richard Gabriel said in the court's opinion that judges historically would deny pre-trial release for capital offenses "because of the greater temptation to avoid trial when the defendant's life is at stake." But the removal of the death penalty changed everything.
“And the court, in my mind, completely correctly said, ‘No, this is a fairly simple case on the law. That [capital offense] exception does not apply to first-degree murder when the maximum penalty is life without parole, and that’s it,’” said Ian Farrell, professor of law at the University of Denver.
The Colorado Supreme Court was unanimous in its decision, and now everyone — even those accused of heinous crimes — has a right to bond.
Defendant's rights vs. community safety
But not all agree with the court's decision.
“As someone who’s been through a capital punishment trial, to have someone who just committed a heinous crime like that to be on the streets causes a huge public safety issue,” said Marcus Weaver, a survivor of the 2012 Aurora theater shooting.
“I think this is one of those unintended consequences of legislation,” said Arapahoe County Sheriff Tyler Brown.
Colorado is no stranger to mass shootings, from the Columbine High School shooting in 1999, the Aurora theater shooting in 2012, the Boulder King Soopers shooting in 2021, and most recently, the Club Q shooting in 2022. If another mass shooting were to happen, the alleged shooter would now be eligible for bond.
“And if we’re releasing people on bail that are facing life in prison without the possibility of parole, what’s to say they’re going to come back and we’re not setting ourselves up for another potentially dangerous encounter?” Brown said. “I think we have to look at this as a community safety issue.”
Weaver is against the death penalty, but says it makes no sense to offer bail to mass murder suspects.
"It’s just really hard to fathom that a judge would allow someone who has committed mass murder bail. It just makes no sense," he said.
Buckmelter said a judge typically sets bond based on two factors.
“The two factors are flight risk — you want them to come to court — and protecting the safety of the community,” he said.
Such was the case just last month, which tested the Colorado Supreme Court’s recent decision.
New reality: Sky-high bonds
Nine days after the Colorado Supreme Court's ruling, David Lechner, an Arapahoe County man accused of gunning down his wife in their garage, appeared for a bond hearing. To applause in the courtroom, the judge set a $100 million cash-only bond, meaning Lechner would have to put down the full $100 million in order to be released.
“Generally, if bail is set, you really just have to put down a down payment — 10 to 15% up front,” Farrell said. “Whereas with a cash-only bond, you have to put down the full amount right away in cash — here it is — before you can leave."
These astronomically-high bonds are seen as loopholes to the new rule.
“At the end of the day, ultimately, there’s probably not going to be too many cases where you have defendants charged with first-degree murder who are going to be able to make high monetary, cash-only bonds," said Farrell.
But with any amount, depending on the defendant’s wealth or access to cash, Brown believes there is a possibility.
“$100 million to a day-to-day person sounds like a lot of money, but we live in a world where $100 million is out there,” said Brown. “What really constitutes reasonable when you’re talking about the loss of human life?”
Should the decision go to the people?
In its argument, the People of Colorado said the right to bail should be decided through legislature or the ballot box. But in the court's opinion, Gabriel said bail is, instead, a constitutional right.
"Our state constitution affords criminal defendants an absolute right to bail, subject only to expressly stated and narrow exceptions... To the extent that Coloradans or the General Assembly wish to change what the constitution provides, they, of course, may seek to amend the constitution, as they have done before," the opinion reads.
Brown believes Governor Jared Polis should call a special legislative session in order to put that decision before Coloradans.
“Put it toward a constitutional ballot measure in November,” Brown said. “A special session is going to be needed for a referendum to put this on the November ballot to address the constitutional issue. We need to recognize that these offenses of murder are to be held without bail.”
Farrell and Buckmelter disagree with Brown.
“Personally, I don’t think that is necessary,” Farrell said. “Given that bond can be set so high, there’s no way that person is going to get out anyway. The right to bail does not give you the right to freedom before trial.”
“His opinion is not going to carry any weight because the Supreme Court disagrees,” Buckmelter said. “The bottom line is, the Colorado Supreme Court has said, 'We are now going to have bond set in these cases.'”
That is the bottom line for now, but it’s a debate likely to continue for months — if not years — to come.
“Some of them are innocent. Some of them aren’t. And you don’t want bonds to be used as a form of punishment,” Buckmelter said.
"This is America. Freedom,” Farrell said. “From that perspective, the starting point is: you have a right to bail.”
“Unfortunately, when these heinous crimes are committed, the victims or these families have to continue to relive this on a regular basis,” Brown said. “Let the people speak on this.”
“Absolutely,” Weaver agreed. “I think that is the only way we’re going to get a clear-cut consensus.”
Should a measure make it onto the ballot next fall, it would need 55% of voter support to pass.
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