In the wake of escalating crime rates gripping Colorado, it’s abundantly clear targeted policies aimed at repeat violent offenders are indispensable for safeguarding public safety. Research underscores a stark reality: a mere 5% of repeat offenders are responsible for a staggering 60% to 80% of violent crimes in urban areas. As the state grapples with this pressing challenge, it is imperative to adopt strategies grounded in well-established principles of criminal deterrence. Key among these principles is the assurance of swift apprehension and punishment. By steadfastly adhering to these fundamental tenets, Colorado can chart a course to stem the tide of rising crime rates.

In a rare and refreshing display of unity, Colorado House Bill 1284 has been introduced by a bipartisan group of 23 Colorado state senators and representatives. It is a pivotal piece of legislation and represents the most significant proposed reform since the extensive revision of bail statutes in 2013.  Moreover, the bill aligns entirely with the strategies implemented by other states to address crime effectively. At its core, it is a simple ban on “get-out-of-jail-free cards” in Colorado, specifically targeting repeat violent offenders. It applies to individuals charged with a crime of violence who either have a prior conviction for a violent offense within the past two years or are currently facing two or more charges related to violent crimes.

Stay up to speed: Sign up for daily opinion in your inbox Monday-Friday

Unfortunately, while HB 1284 addresses bail for repeat violent offenders, it overlooks a crucial issue — the longstanding practice of offering a 90% bail discount through the Judicial Department. This scheme, dating back a decade, grants defendants, regardless of their criminal history, the option to pay only 10% of the bail amount upfront, effectively absolving them of the remaining 90% if they fail to appear in court. For example, if a person faces a $7,500 bond, their friends or family contacting the jail are informed about the 10% cash option, requiring only $750, plus a processing fee, to be posted. This absolves them of any further liability on the remaining $6,750 of the bond if the defendant absconds.

Two significant consequences arise from this practice. First, the state’s Judicial Branch fails to collect the remaining 90%, resulting in potentially millions of dollars left uncollected over the past decade — money earmarked for restitution and other criminal programs. The state auditor would discover a gold-mine has been lost on both partially secured and unsecured bonds, as no efforts have been made to collect these funds for as long as records have been kept. Second, offering a 90% discount on bail to repeat violent offenders undermines public safety and compromises criminal accountability and deterrence. The lack of a requirement to post 100% bail means bail agents with arrest powers and third parties with financial interests are not incentivized to ensure the defendant’s appearance in court, further exacerbating the risk.

Despite being in use for the past 10 years, Colorado’s 90% judicial discount bail program has actually long been prohibited by law. Back in the late 1970s, the Denver District Court attempted to introduce a 10 percent bail option.  However, the Colorado Supreme Court subsequently ruled judges lacked the inherent authority to implement partially secured bonds in Colorado. If they were to be allowed, that could occur only by express enactment of the legislature. But in 2013, an advocate sent a letter to judges arguing recent statutory changes permitted the 10%, despite its express prohibition for more than 35 years. As a result, both courts and sheriffs have adopted this erroneous interpretation of law.

Over the years, the illegality of the program has been highlighted to multiple chief judges, the state court administrator and elected district attorneys. One jurisdiction did make a change a decade ago, but all others have refused to acknowledge the unlawfulness of the 10% option, let alone take any action regarding it. Despite years of evidence, including recorded phone calls by public officials illegally offering the 10% cash option over the phone, the issue persists without resolution.

The only written response I ever received in my own outreach efforts on the issue was several years ago from Denver District Attorney Beth McCann. She recommended addressing the matter with the then-chief judge of the Denver District Court, who, despite demands to cease and desist, chose to ignore the request to stop offering criminals a 90% bail discount. This practice contradicts state statutes and the Colorado Constitution, which mandate “sufficient sureties” secured in the full amount, as permissible under the law.

In the case of Stack v. Boyle, the U.S. Supreme Court ruled judges must set an amount of bail that is “reasonably calculated” to ensure the appearance of a defendant in court — and no higher. However, in Colorado’s Front Range counties, sheriffs and judges have for the past decade allowed defendants to post 10% of the total amount in cash with no risk of forfeiture. This, in essence, sets a second bond amount, which is illegal. Having two conflicting bail amounts violates the principle bail must be reasonably calculated to ensure public safety and guarantee a defendant’s court appearance.

As Colorado confronts the complex realities of its criminal justice system, it must remain steadfast in its commitment to enact meaningful reforms. The rare bipartisan support for HB 1284 demonstrates concerns regarding public safety and justice transcend political divides. Though the bill represents a crucial step forward in addressing pretrial crime by repeat violent offenders, persistent use of the 90% judicial bail discount program underscores the need for further legislative action. By closing this egregious loophole and conducting a thorough audit of bail practices, the state can reclaim millions of dollars in public funds and restore public trust in the integrity of its justice system. The time for decisive action is now, as Colorado strives to build safer communities and uphold the principles of fairness and accountability for all.

Jeffrey J. Clayton is executive director of the American Bail Coalition. He has worked as a public policy and government relations professional, and also as a licensed attorney, serving a variety of clients in legal, legislative and policy matters. Clayton also worked in government service, representing the Colorado Judicial Branch and State Labor Department, and the U.S. Department of Transportation. He is also a prior presidential management fellow and finalist for the U.S. Supreme Court fellows program.