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Colorado Bail Bond Law – Understanding The Unlawful or Unfair Use of Bail Schedules and “No Bond” (Denial of Bail) Holds.

By Colorado Criminal Defense Lawyer for understanding of Colorado Bail Bond Laws– H. Michael Steinberg

Colorado Bail Bond Law requires an understanding one of the most frightening and emotional times in the life of your loved ones… getting out of jail on bond.  Unfairly high bonds or the complete denial of a bail bond is permitted in certain kinds of cases in Colorado  – this article explores those laws referencing the actual laws and statutes where they are relevant. 

Setting Bail Bonds In Colorado

Colorado Bail Bond Law And Issues

So Called “No Bond Holds” – A Constitutional Violation?

The U.S. and Colorado Constitutions and other Colorado laws state that the criminally accused are entitled to bail. Yet Colorado judges and district attorneys frequently conspire to fail to set bond or deny bail incertain instances and to maintain an accused person in custody until the first appearance before a judicial officer, which should be within forty-eight hours after arrest. Most common among these cases are Colorado Domestic Violence Arrests ( link)

Held In Custody For Transport To Another County

Warrants issued without bail amounts or bond types expressly indicated often do not result in inmates being brought promptly before a judicial officer. Instead, the inmate sometimes is held without bond until transported to the jurisdiction issuing the warrant. Although this process should take place within forty-eight hours, it frequently takes longer.

Unfair Bali Bond Practices In Colorado

Colorado criminal defense lawyers must stop the practice of courts routinely failing to adjust an unfair so called “scheduled ” amount of bail and other procedures used in his or her jurisdiction to deny bail entirely. Lawyers must make certain that each court complies with the statutory criteria pertaining to no hold bonds, as well as with the constitutional rights of each accused, as set forth in the Colorado and U.S. Constitutions.

The “scheduled” amount of bail is a list of suggested bail amounts

Broadly speaking, bail schedules are procedural schemes that provide judges with standardized money bail amounts based upon the offense charged, regardless of the characteristics of an individual defendant. Bail schedules are merely sums used for determining a bail bond based on the defendant’s highest charge. Judicial discretion is a crucial element of a fair criminal justice system, and individualized bail assessments present early and essential opportunities to exercise it. Appropriately employed, judicial discretion consists of an evaluation of several legal paths in light of all the known circumstances of the particular case at hand, and selection of the most fair and equitable path.

Setting Bond Fairly

The fixing of bail requires judges to weigh the defendant’s liberty interest against public safety and court integrity concerns, guided by a variety of often statutorily mandated factors. Because bail decisions restrict a defendant’s liberty prior to conviction and must be informed by the  presumption of innocence in this stage of the adjudicative process, this requires judges to carefully exercise their judicial discretion. They do not!

Bail schedules, by contrast, are an automated approach to pretrial release decision making by compelling reliance upon a single fixed bail condition – money – found in a predetermined schedule based solely on the defendant’s highest charge.

Crowded And Noisy Courtrooms and First Appearances

As the American Bar Association has noted in its familiar Standards for Criminal Justice:

[P]roceedings to determine pretrial release often are conducted under circumstances that would not be tolerated at trial. Courtrooms may be noisy and overcrowded, and cases may be treated hurriedly in order to dispose of a large volume of cases in a short period of time . . . [F]irst appearances should not be conducted in a perfunctory manner. Rather, reflecting the importance of the decisions made at this stage, the proceedings should be held in physical facilities that are appropriate for the administration of justice and conducted with the dignity and decorum to be expected of a court proceeding.

The Highest Charge – The Pre-Filing Setting of Bail Using Bond Schedules

In Colorado defendants typically are arrested and brought to a booking officer who sets bail according to the highest crime charged pursuant to the schedule. At this point, the charges have not been reviewed by the prosecutor, and may be more serious than the charges that may ultimately be brought.

This also means that the automatically imposed bond is going to be more costly. The defendant then has the opportunity to post bond immediately, through cash deposit or commercial surety, or wait for a bail hearing before a judge.  The rich get out – those defendants who can afford the predetermined bail sum are released without a judge’s evaluation of the case.

In a 2006 in Jefferson County, Colorado, only 1,950 (8%) of the 23,789 inmates released from the Jefferson County Detention Facility bonded out before seeing a judge.

the ABA recommends that “[f]inancial conditions should be the result of an individualized decision taking into account the special circumstances of each defendant, the defendant’s ability to meet the financial conditions and the defendant’s flight risk, and should never be set by reference to a predetermined schedule of amounts fixed according to the nature of the charge.” ABA Standard 10-5.3 (e) at 110.

In explaining this position, the ABA states:

This Standard flatly rejects the practice of setting bail amounts according to a fixed schedule based on charge. Bail schedules are arbitrary and inflexible: they exclude consideration of factors other than the charge that may be far more relevant to the likelihood that the defendant will appear for court dates. The practice of using bail schedules leads inevitably to the detention of some persons who would be good risks but are simply too poor to post the amount of bail required by the bail schedule.

What Are  “No Bond” Warrants and Holds?

Colorado law provides that the purpose of bail is to “insure the defendant’s presence at the time of trial and not to punish a defendant before he has been convicted.”

At the first advisement in every criminal court case inmates are advised of their rights pursuant to the Colorado Rules of Criminal Procedure (“C.R.Crim.P.”). These prisoners have been  arrested on warrants or by the laws providing for a warrantless arrest. 

C.R.Crim.P. 5 specifies that a person arrested with or without a warrant is to be taken, without unnecessary delay, before the nearest available county or district court to be advised of his or her constitutional rights, the nature of the charges, and to have bail set.

At the advisement the inmates are being advised of their rights, the charges against them, the location of the originating jurisdiction for the warrant, and the amount of their bond.

So called NO BOND warrants

In some of these cases – prisoners arrested do not have bonds set because the judge issuing the order to arrest fails to set a bond – therefore the sheriffs’ offices and police departments interpret these warrants as “no bond” holds and detain the individuals until the sheriff from the issuing jurisdiction arranges to transport them to the jurisdiction from which the warrant was issued. 

This leads to extensive periods of time of incarceration without the right to having a bond set that would permit the freedom of these inmates .

No Legal Authority For NO BOND HOLDS

Courts have been issuing no bond hold warrants without legal authority to do so in new non-capital offenses. A recent article in the magazine – the Colorado Lawyer correctly states that no bond hold warrants have been issued for failure to:

(1) appear on hearing dates or review dates;

(2) comply with probation sentences;

and

(3) comply with deferred sentences.

The article – appearing in a 2003 issues of The Colorado Lawyer examined the procedural issues surrounding the procedural protections that should be afforded to people being held in this unfair manner. The article – well researched and written by David R. Juarez, Colorado J

The article states that…

Criminal suspects sometimes are arrested and unjustifiably detained in jail when they are eligible for release on bond. This article examines the use and misuse of “no bond” warrants and holds, which may cause the unreasonable detention of criminal defendants.

Arrests on New Charges And Granting of Bail

Individuals are subject to arrest on a finding of probable cause supported by a sworn affidavit. C.R.Crim.P. 4(a). Usually, the magistrate or county court judge is called on to review an affidavit in support of a warrantless arrest (discussed below). Individuals arrested on new charges are entitled to be brought promptly before a magistrate or judge to have bond set,C.R.Crim.P. 5(a)(1) with certain limited exceptions provided by the Colorado Constitution and other state law. Colo. Const. Art. II, § 19.

There is a presumption in favor of granting bail is applicable in all cases, except capital cases, as well as some non-capital cases involving crimes of violence. CRS § 16-4-101(1)(a).  Defendants charged with new crimes of violence may be denied bail if they have two or more prior felony convictions or one prior felony conviction for a crime of violence. Bond also may be denied to a defendant who is a previous offender if he or she is specifically charged with the crime of possession of a weapon.

Depriving The Accused Of Bail In Capital Cases and Crimes of Violence

The practical effects of denying bond are to deprive the defendant of his or her liberty and to accelerate the speedy trial rights of the detained person. Except in the case of a capital offense, if a person is denied bail or the bail bond is revoked or increased, his or her trial must be commenced not more than ninety days after the date on which bail is denied, revoked, or increased. If bail is granted, the accused must be tried within six months from the date of entry of the plea of not guilty to the charge. CRS §§ 16-4-101(4) and -105. If bail is denied and the trial is not commenced within ninety days and the delay is not attributable to the defense, the court must immediately schedule a bail hearing and set the amount of the bail for the defendant.

All Other Crimes

State law CRS § 16-4-102. provides a process for the application for bail for offenses not subject to the exceptions for bail discussed above.

CRS § 16-4-102. directs any judge of a court of record to set bail if such bail has not been indicated on a warrant, as also required by C.R.Crim.P. 4.

The Eighth Amendment to the U.S. Constitution proscribes excessive bail, excessive fines, and the infliction of cruel and unusual punishment. The provisions for bail for the criminally accused contained in the Colorado Constitution are consistent with the requirements of the Eighth Amendment.

What Happens On Warrantless Arrests

As happens in Colorado – detainees are sometimes held longer than forty-eight hours, without bond being set until after the defendant’s first court appearance. This practice is contrary to case law. In County of Riverside v. McLaughlin, the U.S. Supreme Court ruled that persons arrested without a warrant are entitled to a prompt determination of probable cause by a magistrate or judge. The Court in Riverside stated that an individual may have the initial probable cause determination combined with other routine proceedings, such as bail hearings or arraignment, and that the initial probable cause review should occur no later than forty-eight hours after arrest.

Nevertheless, some detainees are being held for forty-eight hours or more for only the probable cause determination. On weekends, evenings, and holidays, some courts use facsimile copies of warrantless arrest affidavits to review for probable cause. The detainee then is held until the next regular session of court for the setting of bond and to set the court date for the filing of formal charges. These subsequent hearings may take place as long as four days after a person is detained. In the meantime, even though probable cause most likely has been determined, the person is held without bond.

The Issuing of Arrest Warrants

A Summons vs An Arrest Warrant

An application must be made to a court for issuance of an arrest warrant or summons. C.R.Crim.P. 4(a)(4) suggests a policy that DA’s should request am arrest warrant only in cases of class 1, 2, or 3 felonies or when there are reasonable grounds to believe that the defendant will flee prosecution or fail to respond to a summons unless taken into custody. Otherwise the DA should use the summons format.

What actually happens – in truth – is that arrest warrants often issue on application for most felonies and even for some misdemeanors. Few judges question the arrest warrant applicant about whether there were reasonable grounds to believe the defendant will fail to respond to a summons or whether efforts were made to locate the defendant and serve a summons prior to applying for a warrant.

Before issuing a warrant, a judge could require the applicant for the warrant provide such information as the defendant’s residence, employment, family relationships, past history of response to legal process, and past criminal record. After reviewing available information about the defendant, the judge or magistrate should be in a position to make an informed decision on whether to order a summons or issue a warrant with an appropriate bond.

How Arrest Warrants Are Issued

Warrants are used to identify the nature of the offense allegedly committed by the defendant and have the amount of bail endorsed on the face of the warrant. The issuing judge or magistrate is supposed to sign the warrant, which may be done electronically. However, in this day of electronic media, a judge or magistrate often does not sign a warrant. Generally, the court clerks issue a warrant electronically or with a stamped facsimile of a judge’s signature, under the direction of a judge or magistrate. That information is then transmitted to law enforcement.

Many warrants are issued either without the amount of bond specified in the warrant or an entry of “no bond” indicated. 

Leaving off the amount of bond from a warrant results in law enforcement treating the warrant as a no bond hold; law enforcement will not try to second-guess a blank warrant entry. The warrant that expressly states “no bond,” unless authorized under the exceptions discussed above, is illegal. Here the individual routinely will be held without bond until transported to the issuing jurisdiction. This transport should occur within forty-eight hours of the detained person’s first appearance, however, it often takes much longer.

The Setting of Bail In Colorado

Even though the law – C.R.Crim.P. 5 provides that a person in custody is to be brought before the nearest magistrate or judge as promptly as reasonable to be advised of his or her rights and have bond set, and even though the magistrate or judge providing the advisement and reviewing bond for a warrant issued from another jurisdiction that is silent about bond may not know the circumstances of the charges, the judge issuing the warrant should be knowledgeable about the individual’s criminal record, prior history for attending legal proceedings, and employment or family history. With this information – the judge or magistrate can set a fair bond.

The jurisdiction issuing a warrant cannot assume an individual will be arrested within their jurisdictions. For this reason, the warrant should contain the information required by C.R.Crim.P. 4(b) to meet the duty to set bond as required by statute.

A person who is in custody and eligible for bail may “advise any judge of a court of record in the county where he [or she] is being held of that fact with a request that bail be set.”

The judge or magistrate must order the appropriate law enforcement agency having custody of the prisoner to:

(1) bring the defendant before the court right away;

and

(2) provide the district attorney with notice.

Thereafter, the judge or magistrate is to set bail “if the offense for which the person was arrested is bailable.”35 Criminal charges do not need to be filed as a prerequisite to bail.

THe Criteria for Setting the Amount of Bail

When a person in custody first appears before a judge or magistrate, the amount of bail and type of bond ordinarily is fixed. However, there are some circumstances in which the defendant will be subject to statutory provisions that deny bail. Even in situations where the amount of a bond is specified prior to arrest, the bond amount and bond conditions are subject to review by the court.

In setting an appropriate amount for bail and type of bond, courts routinely rely on information provided by sheriff’s department inmate services investigators or bond commissioners. These individuals usually can provide information about the arrested person so that an appropriate bond can be set by the judicial officer.

The law sets out the criteria for setting bond:

CRS § 16-4-105 lists dozens of criteria to be assessed to determine whether the individual is likely to continue to appear before the court. The magistrate or judge balance those factors with the risks the defendant poses to the alleged victims of the crime, witnesses, and community if released.

Special Hold Situations

Certain situations are handled differently than the normal adult arrest and setting of bond. These include juvenile holds, immigration holds, and post-conviction holds.

Juvenile Holds In Colorado

In state juvenile matters, the protections afforded the criminally accused adult to have bail set and to be released on bond are not applicable. Many juvenile proceedings provide for the protection of the juvenile. Those issues take priority over the punitive considerations that may be applicable in adult cases.

Similar to the time requirement for adults’ probable cause hearings, juveniles are entitled to have detention hearings within forty-eight hours after being taken into custody. CRS § 19-2-508(3)(a)(I).

The Detention Hearing For The Colorado Juvenile

After the detention hearing, the court may further detain a juvenile without bail, only after giving due weight to a presumption that he or she should be released pending a dispositional hearing.

The exception is in narrowly defined circumstances where the court establishes that detention is necessary to protect:

(1) the juvenile from imminent harm;

or

(2) others in the community from serious bodily harm that the juvenile is likely to inflict.

Regarding the payment of bail, the courts have recognized that few juveniles are financially independent. At times, their parents may be unwilling or unable to post bail. At the same time, a bonding agent may be unavailable because minors generally are not competent to enter into contracts…making bail bonding contracts in which they enter are voidable. Nonetheless, because of the special circumstances involving juveniles, they do not have an absolute right to bail under the Colorado Constitution. For example, bail may be denied in cases where the juvenile is alleged to have committed an offense such as possession of a handgun.

Federal Immigration Holds

Detainees in state county jails often are investigated for their residency status by sheriffs’ officers and agents of the federal government. In some cases, the federal government places “holds” on detainees while authorities determine their residency status.

Even if the detainee is eligible for bond under state law, he or she will remain in custody until:

(1) the federal hold is acted on and the detainee transferred to federal custody;

or

(2) the hold is released.

These holds generally are intended to be brief. In general, if the federal agency does not act promptly, the hold is dismissed and the individual then is subject to release on bond.

In most circumstances, to initiate federal prosecution or deportation proceedings, the federal agency will have the U.S. Marshal take custody of the defendant after the state court matter is resolved. Thereafter, bond is set or detention ordered in federal detention hearings or by other federal processes, if applicable.

Post-Conviction Holds

After conviction, the court may grant bail pending sentencing or appeal, if provided by statute.52 However, no bail is allowed for persons convicted of:

• Murder

• Any felony sexual assault involving the use of a deadly weapon

• Any felony sexual assault committed against a child who is under fifteen years of age

• A crime of violence or

• Any felony, if the person used a firearm during its commission.

The court is precluded from setting bail after conviction for other felonies unless it finds:

(1) the person is unlikely to flee;

(2) the person does not pose a danger to the safety of any person or the community;

and

(3) if pending an appeal, the appeal is not frivolous and is not pursued for the purpose of delay.

In certain circumstances, the court has the discretion to grant or deny bail when a person who is a previous offender has been convicted of a crime of violence or a crime of possession of a weapon. The court may deny bail when such person is appealing or awaiting sentencing for the conviction and the court finds that the public would be placed in significant peril if the convicted person were released on bail.

Deferred Sentences and Revocation of Probation

Probation officers and district attorneys may apply for warrants for defendants suspected of violating terms of probation and deferred sentences.

The application and warrant requirements authorizing arrests are the same for:

(1) violations of deferred sentences;

and

(2) arrests on probation revocation matters.

In both of these circumstances, the setting of bond and indicating it on the warrant should follow the same rules as warrants issued for new criminal charges, inasmuch as there is no authority for treating the warrant requirements differently.

A probationer arrested without a warrant is treated in the same manner as individuals arrested on new offenses.

The probationer is to be:

(1) taken without unnecessary delay before the nearest available judge of a court of record;

(2) permitted to enjoy rights afforded to persons incarcerated before trial and;

(3) admitted to bail pending the probation revocation hearing.

Revocation of Probation and Bail Bond Issues

Persons suspected of violating orders to probation may be arrested on warrants issued on application from either the district attorney or the district’s probation department. Such warrant requests usually accompany an application to revoke or modify the terms and conditions of probation.

A judge or magistrate may issue a warrant for a probation violation after finding that probable cause has been established that a condition of probation has been violated and that the arrest of the probationer is reasonably necessary. The application for such a warrant usually comes in the form of a verified complaint from any person or may be based on the report of a probation officer. The probationer may be arrested by any probation officer or by a peace officer from the county or city in which the probationer is found.

A probation officer may arrest any probationer when he or she has probable cause to believe that:

(1) a warrant for the probationer’s arrest has been issued;

(2) the probationer has violated a probation condition, committed a new crime, or is about to leave the state;

(3) the probationer will “fail or refuse to appear before the court to answer charges of a violation of the conditions of probation”;

or

(4) the probationer’s arrest “is necessary to prevent physical harm to the probationer or another person.”

Bond In Colorado Probation Violation Cases – A Closer Look

There is no clear statutory or case authority directly on point regarding the issuance of no bond holds for probation revocation warrants. CRS § 16-11-205(3) suggests that setting bond for persons arrested on probation revocation warrants is required except for the limited exceptions provided by state law. The statute further states that probationers “may be admitted to bail pending the probation revocation hearing.” (Emphasis added.) This suggests the judicial officer has discretionary authority to grant or deny bond.

C.R.Crim.P. 4(b)(4) requires the amount of bail be indicated on the warrants unless “no bail” is authorized. Nevertheless, C.R.Crim.P. 4 fails to distinguish arrest warrants issued on new crimes from probation revocation warrants or failure-to-appear warrants. Thus, there is a presumption is created in favor of, or requiring, bonds for probation revocations or failures to appear.

There is a twofold rationale for requiring bonds on probation revocation warrants, unless specifically authorized under the law to deny bond (for capital offenses and crimes of violence). First, if the offender was a danger to the community, he or she would not have been granted probation. Second, the offender is presumed innocent of the violation until the basis of the probation revocation is established at the probation revocation hearing by a preponderance of the evidence (or beyond a reasonable doubt for a new law violation).

Colorado Deferred Judgement and Sentence Cases

In matters of deferred sentences, warrants may issue for the arrest of any defendant for a breach of a condition of the deferred sentence. The judge may issue a warrant, similar to the probation violation situation, based on the report of a probation officer or a verified complaint by another person. The report or verified complaint must establish probable cause to believe that the deferred sentence has been violated and that an arrest is reasonably necessary.

Statutory No Bond Holds

In addition to suspects of capital offenses and violent crimes being held without bond as described above, certain convicts lawfully may be held without bond while their matters are pending. Convicts sentenced to community corrections programs may be arrested and held in custody in jail or in residential placement without bond while awaiting a determination of continued participation in the program. Parolees facing revocations of their parole are to be held in custody without bond.

Community Corrections and No Bond Holds

An offender sentenced directly to community corrections is under the jurisdiction of the probation department of the judicial district in which the program is located. Violators of community corrections programs are subject to arrest on application by probation officers. Such violators may be held in the community corrections facility or in the county jail for the county in which the facility is located. The sentencing court may enter orders regarding the continuing detention of the offender for transfer or resentencing if his or her placement in a community corrections program is terminated.

A community corrections program administrator can transfer an offender directly to the county jail, to be held until a judicial authority or parole authority determines whether the person is to be returned to community corrections or is to be removed from the program. Under state law, the offender is to be held without bond until that determination is made.7

Parole Violations – and No Bond Holds

Arrestees that are accused of parole violations also are subject to arrest and may be held without bond. Parolees are still technically in the custody of the Department of Corrections until discharged. This no-bond status remains in effect until the parole board determines if parole will be revoked and the defendant is returned to the Department of Corrections to complete his or her sentence. If the parolee is charged with the criminal offense of escape pursuant to CRS § 18-8-208, he or she still is eligible for bond on the new charge.

Please Call Our Firm if you have questions about:

The Unlawful or Unfair Use of Bail Schedules and “No Bond” (Denial of Bail) Holds.

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277

If you have questions about The Unlawful or Unfair Use of Bail Schedules and “No Bond” (Denial of Bail) Holds in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and to provides quality legal representation to those charged in Colorado adult and juvenile criminal matters and as regards Colorado Bail Bond Law. 


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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