Matt Karzen: Explaining the legal dilemmas of pretrial detention and bond
For Steamboat Pilot & Today
For several years now, the topic of pretrial detention versus bond for people charged with crimes has been the subject of legislative and policy debates. It also recently surfaced in Northwest Colorado with a couple of very disturbing events, and it is currently under debate in our state Legislature. For those reasons, as your elected district attorney, I feel it is important to speak on the topic.
First, this office has and will continue to routinely oppose personal recognizance bonds for things like repeat domestic violence offenders and many other types of high-risk persons. However, without major changes in Colorado’s pretrial release laws, I believe we will continue to see repeat or high risk offenders released without supervision because our current system focuses on wealth rather than risk, and locally, we lack any supervision resources.
The crux of the issue is this question: In the American justice system, when can a person accused of a crime be held in jail while their case is prosecuted? In the United States, all people accused of crime are presumed innocent. In this way, there is inherent systemic friction between pretrial detention and the presumption of innocence.
The purpose of pretrial detention and, by extension, the purpose of a bond is, therefore, not to punish someone but to “ensure” that (1) the person appears in court as instructed by the judge, and (2) the community is safe. In Colorado, statutes dictate when and how a person can be jailed despite the presumption of innocence. The entire system is based on the concept of posting money to get out of jail, which means that Colorado has a monetary-based pretrial release system.
In addition to being monetary based, our current bond statute grants an absolute right to bond except in very limited circumstances, and it requires that any bond order from a judge involve the “least restrictive conditions” sufficient to ensure safety and avoid flight.
Here in our rural jurisdiction with a limited tax base and no funding from the state, this translates to two options for our judges: Hold them in jail by setting an unaffordable bond as the price of freedom or release them on their promise to behave. Our jurisdiction does not have pretrial supervision services to monitor people on bond, so for all of our judges in all of our cases, it is an all-or-nothing question — people are held in jail on a bond they cannot afford, or they are released unsupervised.
In my assessment, a monetary-based system, which makes wealth the determining factor on whether someone gets out or stays in jail, has produced a variety of bad outcomes across the country. People without money have remained in jail when a similar defendant with money gets out, and people with money have gotten out despite real flight risk or risk to community safety.
To be clear, the only place to solve this problem is at the Legislature. Although a judge ultimately makes all decisions regarding bond and pretrial release, judges are not free to do as they please, because they are limited by constitution and the statutory tools the Legislature provides. In the absence of a new set of laws from our Legislature — one that prioritizes public safety and balances that not against wealth but with the constitutional principles of due process and the presumption of innocence — there are simply no good options on the question of pretrial detention. Freedom or jail depends first on how much money someone has, because that is what our laws mandate, which is difficult to square with of one of this country’s core values: equal treatment under the law.
In the past several years, legislative proposals to address these problems have focused on making it harder to hold someone prior to conviction by limiting a judge’s ability to do so, but the monetary bond system remains in place. In this legislative session, those efforts are found in SB21-062.
Thanks to the work of the Colorado District Attorney’s Council and others, the most problematic parts of the bill were withdrawn, and in its current state, I am basically neutral about it, but that said, bond reform legislation leaves much to be desired as long as it retains the monetary-based system and lacks meaningful support for supervision services. As long as wealth is the determining factor on whether someone is at liberty or held in jail prior to any conviction, it will remain difficult to hold people who need to be held, because the mandated system turns not on risk but wealth, which has no place in the effort to balance liberty and safety.
Until we discard our monetary bond system and adopt a well-engineered preventative detention model, coupled with effective pretrial release supervision services, hitting the right balance between safety and liberty is going to be difficult at best. In the meantime, a strong systemic pushback against releasing the rich and jailing the poor has resulted in a trend across the country and state toward personal recognizance bonds, which means people simply sign their name and are released upon their promise to follow the rules.
The end result is that, currently, we still have the one thing most everyone agrees is a bad idea, which is a monetary-based bond system, and, at the same time, real-world considerations such as public and victim safety, community quality of life and what to do when someone habitually fails to attend court hearings are not being adequately addressed. The results can be catastrophic.
Under a preventative detention model, an analysis is made to determine actual current risk for flight or risk to public/victim safety, and based on that assessment, a judge will order someone released without paying any money, or held in jail, period. Money and wealth are taken out of the equation, and instead, the entire question is addressed from the standpoint of balancing public safety with individual liberty on the facts of each individual case.
In a well-built system that includes supervision services and regular judicial review of detention cases to ensure people are not detained too long for no good reason, only the dangerous are held, and the rest are released regardless of wealth, with supervision as appropriate. Based on the nature of crime in our judicial district, and the thoughtful nature of our judges, I am confident such a system would result locally in the vast majority of people charged with crimes being appropriately released with conditions on their behavior and appropriate supervision, and a small number of high risk offenders being detained out of public/victim safety necessity.
The Legislature’s comfort with a monetary-based system, as opposed to preventative detention and pretrial release supervision, is a bit of mystery to me, but partisan politics and budgetary concerns appear to play a part. Funding is always difficult, but as the criminal justice system is a state system, one would think a state Legislature about to pass SB21-062 would prioritize at least some effective funding for pretrial release supervision programs in rural communities, but so far, and for the next year, it does not look like that will happen.
Balancing public safety and individual freedom is complicated. As attractive as social-media “solutions” can be, and as intriguing as oversimplified click-bait media coverage of these complex issues is, the reality is that criminal justice in a society founded on individual liberty requires an unyielding effort toward pragmatic and effective balance. Partisan politics has zero place in that process.
Many, if not all, of my fellow DAs in Colorado support numerous criminal justice reforms, but to be effective and safe, such changes must be funded properly at all levels — state and local — so that resources to change the system responsibly are prioritized. Although absent in Colorado’s 2021 version of “bond reform” legislation, I am hopeful that in the years to come we will achieve a functional pretrial release model that keeps us safe, avoids wealth-based bias and stays true to the freedoms we cherish in our constitutional democracy.
14th Judicial District Attorney
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