Colorado Senators Embark on Journey to Stop Repeat Offenders from Getting Free Passes
Last year at this time, we were discussing how many more free passes those charged with low-level felonies and misdemeanors were going to get under Senator Pete Lee’s bail reform legislation—until a crime wave changed our thinking a bit. After shelving that last year, this year we're discussing just the opposite: how many fewer free passes should be given to those who are indeed the very repeat and violent defendants that are the problem.
Senate Bill 22-041 (Sen. Woodward) is a fairly modest solution to the problem of repeat and violent defendants and address the problem of zero or low bail policies that have been shown to increase pretrial crime and failing to appear in court. The legislation would close judicial loopholes on imposing free passes from jail, would add crimes of violence to the list, and would require a statewide minimum bail for those who commit a new crime while on bail or who commit a violent crime.
By way of history, in 2013 the legislature enacted a series of bail prohibitors—in other words, circumstances where folks just are not eligible for a get out of jail free card. Those are currently cases where someone is already out on bond and commits a new crime, they have willfully failed to appear in court, or they have significant, recent criminal history. Senate Bill 22-041 would add to that list of circumstances to include crimes of violence.
Unfortunately, Senate Bill 13-1236 created exceptions to the original circumstances of no free passes that are ignored by judges and easily overcome. Judges can impose any condition to get around the free pass requirement. For example, a judge could simply impose a curfew of 9:00 pm to work around these requirements. A judge has to have no reason whatsoever to overcome this requirement, other than to simply impose another non-monetary condition. This requirement never made sense. Two, prosecutors were allowed to consent to a personal recognizance bond. This essentially transfers judicial discretion to prosecutors, and there is no reason that if judges are generally prohibited from something that only prosecutors should have the consent to allow something. Soundly, Senate Bill 22-041 deletes these two exceptions.
The reasons for the prohibitors of free passes on bail made sense in 2013…and makes sense now. Uncontroverted research for a generation shows that prior failures to appear in court and prior criminal history are the number one predictors of pretrial misconduct. The legislature makes an evidence-based move when it simply says, no more free passes for those who have already proven they are at high risk to fail.
SB 22-41 also adds a minimum bail requirement of $7,500 for qualifying circumstances. While we praise that and think stopping the $1 and $2 firearm case bails is important, we think setting a minimum monetary bail in statute, from which judges cannot depart, will not survive constitutional scrutiny. That said, the legislature should consider setting a minimum bail schedule for such crimes, if a schedule is used, where no one in Colorado can be released for less than the minimum bail schedule amount without first seeing a judge to have an individualized hearing.
In short, SB 22-041 is a modest move forward to stop the cycle of repeat defendants taking advantage of the system by getting continuing free passes. The states of Delaware and Texas have moved forward with similar legislation which became law, with other legislatures looking at similar no more-free pass legislation. While the legislature cannot directly hold judges accountable, the legislature can at least force the Judicial Performance Commission to report out on how judges set bail and the results thereof. While perhaps beyond the scope of SB 22-041, we cannot forget that there are three branches of government that can be the cause or solution to a problem.
We would encourage all locally elected officials and law enforcement to consider supporting Senate Bill 22-041 and help stop the cycle of crime by contacting your state representative in support.