* prohibit the release of a defendant on an unsecured bond to supervision by a pretrial services program unless that defendant is arrested for his or her first offense that is also a nonviolent misdemeanor.

Summary and Analysis

In the United States, an individual accused of a crime is innocent until proven guilty. Most defendants have the right to be released on bail that is not excessive rather than remaining in jail pending the outcome of a trial. However, some serious crimes are not bailable offenses under Colorado law, including murder, kidnapping, and treason. In addition, persons arrested for a violent crime who have been previously convicted of a violent crime, or who are out on bail for a violent offense, are also not eligible for bail.

Definition of bail and bond. After an individual is arrested, the court sets the amount of bail, the type of bond, and any other conditions of release. The primary purpose of bail is to ensure that the defendant appears for trial. A bond is an agreement between the defendant and the court under which the defendant agrees to comply with all of the conditions of release and to pay the bail amount if he or she does not appear in court.

The court may order one of two types of bonds, unsecured or secured. With an unsecured bond, the defendant is released on his or her promise to appear, but is required to pay the bail amount if he or she does not appear in court. With a secured bond, the defendant either pays, or promises to pay through a commercial bail bondsman, an amount of money or interest in property before he or she may be released from jail pending trial. Although there are judicial district guidelines for setting bail, the court has the discretion to set the amount of bail and type of bond on a case-by-case basis after considering criteria set forth in law.

If the defendant cannot afford to pay the bail amount, he or she can pay a fee to get a bond through a commercial bail bondsman, secure a bond using real estate, or remain in jail. In addition to financial conditions, the court may order any number of other conditions of release, which could include supervision by a pretrial services program.

Pretrial services programs. Under current Colorado law, most defendants qualify for release to supervision by a pretrial services program on either a secured or unsecured bond. There are ten pretrial services programs that are publicly funded and serve over 70 percent of the state's population. The programs are located primarily along the Front Range, with the exceptions of Weld, Pueblo, and Mesa counties. Pretrial services programs provide two primary functions. First, they assess defendants and provide information and recommendations to the court regarding the defendant's risk to public safety and the likelihood that he or she will appear in court. The court uses this information in setting the defendant's amount of bail and type of bond.

Second, pretrial services programs provide community-based supervision to monitor defendants prior to trial through various methods, such as periodic visits with the defendant, drug testing, and substance abuse treatment. Failure to comply with the pretrial services conditions may result in the defendant being returned to jail while awaiting trial.

Proposition 102. Currently, the court may release the defendant to supervision by a pretrial services program on an unsecured or secured bond. Under Proposition 102, the defendant may only be released to a pretrial services program on an unsecured bond if the offense for which he or she has been charged is his or her first offense and is also a nonviolent misdemeanor. A misdemeanor is a crime, less serious than a felony, punishable by a fine and a term of imprisonment in a city or county jail as opposed to a state prison. In all other cases where the defendant receives pretrial services, the court must order a secured bond. This measure does not prohibit the court from releasing the defendant on an unsecured bond without pretrial services.

Estimate of Fiscal Impact

The measure will increase the time spent in jail for defendants who need to obtain financing for a secured bond or for those defendants who cannot obtain financing and must remain in jail until trial. Based on the state reimbursement rate for local jails of $50.44 per person per day, it is estimated that the measure will increase the annual statewide cost for local jails by about $2.8 million beginning in budget year 2010-11. There are two driving forces for this increase. National data indicates that it takes about eight days for defendants with a secured bond to obtain financing for release as opposed to those who are released immediately on an unsecured bond. Additionally, about 30 percent of defendants with a secured bond never obtain the financing to secure release. This increase in demand for local jails could result in a need for building additional jail beds in the future. The measure may decrease the need for or the use of pretrial services programs, and the money that was previously used to fund those programs could be used to offset a portion of the additional jail operating costs.