Bail System Reform

The 10th Circuit Court of Appeals in Denver is hearing a case concerning bail reform, which could impact states nationwide, including Colorado.
The case originates from New Mexico, where plaintiffs argue that criminal defendants have a constitutional right to post monetary bail.
New Mexico eliminated monetary bail in many cases. This intended to prevent poor defendants from being jailed solely due to inability to pay.
The change had the unintended consequence of detaining individuals who could afford bond while awaiting assessment and a hearing.

Monetary bail allows a defendant to leave jail by paying money to the court or a third-party bondsman.
This serves as collateral to ensure their appearance at future court hearings.

Colorado lawmakers are considering several bills concerning pre-trial release.
These bills will focus on promoting presumptive release (release without paying money) for low-level crimes, rather than eliminating monetary bail entirely.
Denise Maess (ACLU of Colorado) noted that eliminating monetary bail doesn't necessarily solve the problem and could keep people in jail longer, referencing the New Mexico case.
State and local governments are grappling with improving pre-trial release practices amid rising jail populations.

Denver stopped charging defendants for GPS-tracking ankle monitors before trial.
The city also eliminated many of its pre-trial fees after settling a lawsuit led on behalf of a man jailed for five days due to inability to pay a small administrative fee.

The Chief Justice of Colorado's Supreme Court formed a commission in March to study bail procedures.
Maess noted that the majority of jail inmates are awaiting trial and presumed innocent.
She stated that the situation has risen to a crisis, necessitating court intervention.

The 10th Circuit's decision in the New Mexico case could set boundaries for other states considering bail system reforms, according to Richard Westfall, attorney for the plaintiffs.
The lawsuit stems from the July 2017 arrest of Darlene Collins, who was jailed in New Mexico for almost six days on suspicion of aggravated assault.
Her family couldn't immediately post bail due to new rules preventing courts from setting a bond without a risk assessment or hearing.
Collins remained in custody for six days due to her poor health, a holiday weekend, and the elimination of bonds set in the jail.
Collins' attorney led a class-action lawsuit in 2017, alleging violation of her constitutional rights due to not being given a chance to bond out.
The lawsuit invokes the Eighth Amendment, forbidding “excessive bail,” arguing the option for bail must exist.
The lawsuit argues New Mexico Supreme Court cannot restrict the liberty of presumptively innocent defendants without offering monetary bail as an alternative to pre-trial deprivations.

According to the Albuquerque Journal, bail bonds posted through third-party bondsmen in New Mexico's busiest court dropped by 84% after the state Supreme Court changed the rules.
The number of people in jail on bond also decreased significantly.
A federal appeals court in New Jersey (which has a similar law eliminating monetary bail) found no constitutional guarantee that a defendant be allowed to use a corporate bond to get out of jail before trial.
Westfall anticipates a “strong likelihood” of the U.S. Supreme Court hearing the New Mexico case if the Denver appeals court agrees with Collins and contradicts the New Jersey ruling.
The U.S. Supreme Court is likely to resolve discrepancies in appellate court opinions.
The U.S. Supreme Court hasn't considered bail questions in three decades, according to Jeffrey Clayton (American Bail Coalition).
Clayton believes there's a chance some of these cases could reach the Supreme Court.