Did Gov. Jared Polis and the Colorado General Assembly know their decision to abolish capital punishment in 2020 could let first-degree murder suspects out on bail? Did they realize even someone charged with mass murder might walk free while awaiting court proceedings?

Whether they were aware, it’s now the reality.

This month, the Colorado Supreme Court unanimously ruled that, absent a “capital offense” in state law after the abolition of the death penalty, there no longer is a basis for denying bail to suspected killers.

As Colorado Politics noted in its report on the ruling, the Colorado Constitution guarantees defendants the right to bail pending trial except for those charged with “capital offenses.” The Supreme Court ruled the abolition of capital punishment meant there are no more “capital offenses” in Colorado – so every crime is now eligible for bail.

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The Gazette’s George Brauchler, a sage of Colorado’s justice system, pointed out the dire implications in his column the other day.

“A calculated and cold-blooded murderer of some innocent Coloradan is now entitled to be free on bail pending their trial for murder. … If convicted, they will serve LWOP (Life WithOut Parole). While awaiting that life sentence, the murderer can seek to murder any and every witness against them, including children, or murder the prosecutor or judge in their case, and they will never face more than the exact same LWOP sentence,” Brauchler wrote.

“They can also kill the police who try to arrest them on their second batch of murders with not one change to their ultimate sentence.”

Brauchler, the longtime 18th Judicial District Attorney who in 2015 prosecuted the notorious killer in the Aurora theater shooting, adds a sardonic quip: “Bail is set within 48 hours of the murderer’s arrest. Kill a spouse on a Friday, be home before ‘Monday Night Football.'”

Needless to say, it doesn’t bode well for law and order. Sure, other variables factor into bail. Among them, judges can set the price of temporary freedom so high that, say, a suspected serial killer can’t post bond. Yet, it doesn’t help that the change in the law places that same killer a step closer to walking.

So, what is to be done?

We’ll resist the urge to revisit the decision by our Democratic governor and Legislature three years ago to scrap the death penalty; that’s a separate debate. But it’s hard not to agree with Brauchler’s view that, at the least, the matter should have been put to a popular vote.

That way, the consequences for bail, and perhaps some other considerations, likely would have emerged and been vetted publicly as voters would have mulled such a ballot question. Whether those consequences were foreseen, as Brauchler suggests, or unintended by the powers that be, they likely weren’t on the radar of the general public – and should have been.

For better or worse, the ballot remains the best avenue for repairing the collateral damage from abolishing capital punishment. The Supreme Court justices in their opinion raise the possibility that voters “may seek to amend the (Colorado) Constitution, as they have before,” to explicitly allow courts to withhold bail from murder suspects.

Would the Legislature refer such a measure to the ballot? Brauchler doesn’t give it much of a chance considering the “justice reform” dogma that dominates the current crop of lawmakers.

It’s worth asking: Would the electorate be willing to mount their citizens initiative to place such a question before Colorado voters? If it could save a life?

Denver Gazette Editorial Board