Colorado has enacted a law eliminating pretrial bail for cases involving minor offenses.
Gov. Jared Polis signed into law H.B. 1225, prohibiting courts from imposing bail as a condition of pretrial release for defendants charged with “a traffic offense, petty offense, or comparable municipal offense,” on April 25.
The law exempts charges such as “a traffic offense involving death or bodily injury, eluding a police officer, circumventing an interlock device, or a municipal offense with substantially similar elements to a state misdemeanor offense.”
Colorado had been jailing many defendants because they could not afford to pay bail or a personal recognizance bond, says Colorado Attorney General Phil Weiser.
“Our current system of cash bail—when untethered from risk assessments—criminalizes poverty,” stated Weiser in testimony before the House Judiciary Committee on March 14.
Petty Crimes, Poor Defendants
The fact that the offenses targeted by the Colorado law are often committed by low-income individuals should not be the primary consideration in setting policy, says Derek Cohen, director of the Center for Effective Justice and the Right on Crime campaign at the Texas Public Policy Foundation.
“The goals of the legislation are commendable, but the false dichotomy of whether or not to allow the setting of cash bail based on the offense is a red herring,” said Cohen. “Such a debate elevates an individual’s finances to the primary, if not the sole, determinant in release decisions.”
Danger to the public should be the main factor in deciding whether to require bail in any particular case, says Cohen.
“The true and only determinant of release should be risk: specifically, risk of flight and risk of re-offense,” said Cohen.
Recommends Assessing Risks
Courts generally require bail or a bond for release because they have reason to suspect the defendant will not appear for trial or might commit other offenses if let go, says Cohen.
“It is true that too many individuals are being detained pretrial, but that is less a function of whether a particular offense is bailable and more a function of informational asymmetry regarding risk,” said Cohen.
A system designed to protect the public and individuals’ rights should keep high-risk people off the streets while awaiting trial.
“The ideal system of pretrial release would start from a presumption of conditionless release for these lower-level offenders, and include a quick, transparent, and validated risk assessment to ensure they are safe to release,” said Cohen. “Cash bail then becomes a secondary consideration if imposed.
“Such a system would allow for low-or-no-condition release for indigent, low-risk individuals while prohibiting high-risk people from purchasing release and reoffending or absconding,” said Cohen.
Sarah Quinlan ([email protected]) writes from New York City, New York.
