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  • Writer's pictureMario Nicolais

Colorado bail reform leading the way

Years ago I defended a pro bono client against battery and disorderly conduct charges. He worked a blue-collar construction job, tried hard to take care of his children, and had a lengthy, but distant criminal record. When we went in for his arraignment, the prosecutor offered to drop the battery charge in exchange for a guilty plea to disorderly conduct. He would spend a few days in jail and pay a small fine.

My client agonized over that decision.

He told me he had a lot to lose. If he lost at trial, he might spend much longer in jail. He could lose his job, lose his girlfriend, lose his home, lose his kids. It struck me that the question of his innocence factored so low in his decision-making process it became almost irrelevant. The pressures outside the criminal justice system acted as a bludgeon within it.

So when I read a recent article about the effects of bail reform in New York City, it immediately made me think about that moment. Under the traditional bail system, if you’re poor and you’re arrested, the chances you will accept a plea bargain skyrocket. And not just over time as your case progresses. Often it occurs the moment you first step before a judge at your arraignment.

For many low-level offenders — think open-container or drug paraphernalia charges — time in jail awaiting trial may exceed the potential sentence, especially under a plea deal. When a defendant can’t pay bail, it can mean weeks or months in jail, not just days. That is why it is a common scene to see sentences meted out for “time served.” As outside pressures mount, the abstract ideal of proving innocence takes a back seat.

Criminal defense lawyers reading this are either nodding in agreement or rolling their eyes at me for catching a blinding glimpse of the obvious.

Colorado, though, is among the leaders in bail reform. In 2013, the Legislature made significant changes to the decades old system. The law directed judges to employ more empirical evidence-based approaches in setting bail. Increased individualization, including consideration of a defendant’s financial situation. A change to the definition of “bail” itself to expand what types of assets may be used to secure a return to court. Allowing conditions of release, including community-based supervision, to substitute for monetary deposits.

Colorado’s law is a veritable toolbox on the leading edge of bail reform across the country. It is an example that others with more substantial criminal justice systems have looked to for guidance: places like New York, New Jersey and California.

Of course, no change comes without concerns over drawbacks. Primary are the effects on the criminal justice system itself and its ability to absorb additional caseloads and the costs that come with them. On an intellectual level, such considerations seem cynical in comparison to an individuals’ right to be free from undue pressure when deciding whether to exercise their right to a trial. But ideals and practice don’t always align.

Given that Colorado’s system is now several years in use, a serious review and study could provide important insights. It could demonstrate the efficacy of these policies and highlight any additional changes that might be necessary. It might put some concerns to rest, while potentially exposing new ones. Regardless, it would be valuable to our state and country.

My client eventually rejected the plea deal. We went to trial and won. But he could afford bail and had pro bono representation. If he hadn’t had the means to pay bail that first day, I’m not sure his decision would have been the same.

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