Colorado lawmakers are debating whether defendants charged with first-degree murder in Colorado should have the right to post bail in cases where “proof is evident and presumption is great.”

The House Judiciary Committee tackled the issue Wednesday, with some members hesitantly pushing the measure forward. 

HCR 1002 and HB 1225 were introduced in response to a 2023 Colorado Supreme Court Case, People vs Smith.

Before 2020, first-degree murder was considered a capital offense, automatically exempting defendants from the possibility of posting bail. However, because of the state’s 2020 repeal of the death penalty, the court ruled that, since first-degree murder is no longer a capital offense, a defendant cannot automatically be denied bail. 

Lynch, a sponsor of the bill, argued that, by following the Supreme Court ruling, some judges are setting bail amounts that are not obtainable to the general population, creating instances in which only the wealthiest people could remain free until trial.

Lynch said these situations might face future challenges, as they could be deemed a violation of the Eighth Amendment, which prohibits the imposition of “excessive” bail for defendants in non-capital offenses.

While eight of the committee members voted to advance the bill, two representatives said “no.”

Rep Javier Mabrey, D- Denver, who is an attorney, said that, while he agrees the bail system is inherently unfair, he believes that all defendants are innocent until proven guilty. He said he is concerned that pretrial hearings on evidence of proof could create a presumption of guilt before a trial has even begun.

Rep Lorena Garcia, D- Westminster, shared similar concerns, saying she is worried the legislation would move the state closer to a “guilty until proven innocent” approach.  

“I feel that when we decide to pre-judgement hold people based on certain levels of evidence, that we are in fact declaring guilt,” she said.

Snyder, too, expressed apprehension, as did Rep. Leslie Herod, D- Denver, who pointed out that was no opposing testimony during the hearing. While both voted to move the bill forward, they said it is possible their votes may change when the measure gets to the floor.  

The bill is contingent on voters adopting the concurrent resolution, which will be on the ballot in November if it passes through both chambers with a simple majority vote. 

“No amount of money, no matter what we have argued in bond hearings earlier in that week, makes them feel safe,” she said.

District Attorney Michael Allen of the Fourth Judicial District said he has had to face family members in court who were previously told, “Your offender, who has affected your family in a way that none of us can actually imagine is now going to be able to bond out of jail.”  

District Attorney Brian Mason of the 17th Judicial District said he supported abolishing the death penalty, but there has been an unintended consequence of individuals charged with first-degree murder posting bail, sometimes even when judges set higher than average rates.

As an example, he cited a first-degree murder case in his district, in which a defendant posted a $500,000 bond. 

“I don’t believe that the voters of Colorado want those who have been charged with first-degree murder to be able to get out pending their trial,” he said, adding that individuals charged with first-degree murder pose a high flight risk because the penalty is particularly significant – life without the possibility of parole. 

Courtenay Whitelaw, mother of Riley Whitelaw, a 17-year-old girl who was killed at a Colorado Springs Walgreens in 2022, said that, while her daughter’s killer was charged with first-degree murder, he was given the right to a bail hearing.

Whitelaw told the committee she was “blindsided” when she found out he had the possibility of posting bail. 

“As a mother of a child who was brutally murdered, it felt wrong to have to go back and address bail in a case where the proof was evident and presumption is great,” she said.

The judge ultimately set Johnson’s bail at $10 million, but Whitelaw said, “It still felt wrong that bail was even an option afforded” to the suspect, “no matter the amount.”

While the bill and concurrent resolution specify that bail exemptions would only apply for cases in which proof of guilt is evident or presumption is great, Rep. Mark Snyder, D- Colorado Springs, questioned whether there is a specific definition or guidelines for determining what constitutes as “evident” or “great.”

According to Allen, the district attorney, that definition depends on evidence and other case-specific information, all considered by a judge who ultimately determines whether there is reasonable proof that a defendant is guilty.  

The bill, co-sponsored by House Majority Leader Monica Duran, D-Wheat Ridge, and sponsored in the Senate by Sens. Rhonda Fields, D- Aurora, and Bob Gardner, R- Colorado Springs, would also implement a law permitting defendants in first-degree murder cases 10 peremptory juror challenges, with three additional challenges on each side if there is more than one defendant in a case.