Judges can set or deny bail, but if Amendment I passes, they will be able to deny bail if someone is charged with murder in the first degree.
At its simplest, passing Colorado Amendment I would allow judges to deny bail for people charged with murder in the first degree “when proof is evident or when presumption is great.” The measure would amend the Colorado Constitution, and would require a 55% “yes” vote or greater to pass.
The word “allow” in the paragraph above might be a bit misleading, but it’s not inaccurate. A 2023 court ruling, described below, said judges could not deny bail for first degree murder when proof is evident, so passing Amendment I would indeed “allow” judges to deny bail. However, judges would also “have to” deny bail because first degree murder when proof is evident would become a non-bailable situation under the Constitution if Amendment I passes.
How Did Amendment I Reach The Ballot?
The Colorado General Assembly referred Amendment I to the 2024 ballot by passing House Concurrent Resolution 24-1002. The resolution passed the state Senate unanimously, but the vote was 59-5 in the House, with four of the “no” votes coming from the chamber’s more progressive or farther-left members.
Rep. Javier Mabrey, D-Denver and one of the five “no” votes on HCR 24-1002, was quoted in Colorado Newsline as saying “I felt that it could impact the principle of innocence until proven guilty. If a judge makes a determination that someone is likely guilty before the trial, I worry about the signal that could send to the jury, the prosecution and the defense.”
The phrase “when proof is evident or presumption is great” might sound a little vague to some readers, but it’s been in use since before the United States became a nation. The National Conference of State Legislatures (NCSL) wrote that there was language adopted in Pennsylvania in 1682 saying “that all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great.” The Newsline story also noted that 46 states already have the ability to hold those charged with first-degree murder without bail assuming proof is evident or the presumption great.
The phrase is also already in Colorado’s Constitution in Article 2, Section 19 (a), but it says bail can be denied “For capital offenses when proof is evident or presumption is great,” not specifying murder in the first degree.
Why Was Amendment I Proposed?
Part of the perceived need for Amendment I sprung from Colorado repealing the death penalty in 2020. As noted above, the state Constitution already said judges could deny bail for “capital offenses,” which is defined per “Law.com” as “any criminal charge which is punishable by the death penalty,” but the Colorado Supreme Court ruled in 2023 that murder in the first degree could no longer be considered a capital offense because the death penalty was off the table. Hence Amendment I.
The definition of first-degree murder can be found in Colorado Revised Statutes 18-3-102 (1), but for brevity it’s basically:
- When a murder is premeditated and malicious.
- If a person sells or distributes controlled substances to a person under 18 years old on school grounds and the person dies from the substances.
- If a person in a position of trust knowingly causes the death of a person less than 12 years old.
On sort of a side note, the legislature also passed House Bill 24-1225 in 2024, which basically would put language about denying bail into Colorado Revised Statutes, but only if Amendment I passes.
Richard’s Take
I’ll vote “yes” on Amendment I. I have appreciation that a few progressive members of the House stood up for people who might not be guilty by voting against HCR 24-1002, but the standard of “proof is evident or presumption is great” is very well established in the laws and/or constitutions of many U.S. states.
Not to minimize the severity of it all, but Amendment I seems to me like a language cleanup in the Constitution, to clarify the change made to the existence of “capital offenses” in Colorado after banning the death penalty. It was already legal under the Constitution to deny bail for capital offenses, which included murder in the first degree, and if Amendment I passes the Constitution will be clear in that judges can deny bail for murder in the first degree.
There’s always a risk that someone out on bail might re-offend or commit different crimes, but in the case of murder in the first degree it could be a very serious mistake to put a person who might have actually committed a heinous crime back out into society. That’s why so many states already have laws denying bail for those charged with murder in the first degree – and Colorado already has such a Constitutional provision for “capital offenses” – so I’ll keep this short and just repeat that I’m voting for Amendment I.
