(Colorado Newsline) Colorado lawmakers approved legislation that will send a question to voters asking if people charged with first-degree murder should be denied bail “when proof is evident or presumption is great” that the person will be found guilty.

The bipartisan measure, House Concurrent Resolution 24-1002, requires approval from 55 percent of voters, because it would amend the Colorado Constitution.

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Colorado repealed the death penalty in 2020, but the Constitution still references “capital offenses.” Previously, a court could deny bail for death penalty cases, such as when the charge was first-degree murder. But the Colorado Supreme Court ruled in 2023 that first-degree murder cases could not be considered capital offenses for the purposes of denying bail since the death penalty is no longer a potential sentence.

For a defendant charged with first-degree murder to be denied bail under the proposed amendment, prosecutors would have to show a judge that at trial they are likely to prove the defendant is guilty of first-degree murder.

District Attorney Michael Allen of the 4th Judicial District told the House Judiciary Committee that the defense historically has participated in the hearing, cross-examining witnesses and even offering their own. The judge then decides based on evidence from both sides if presumption is great enough for bail to be denied. If the judge isn’t convinced by the evidence, they can still set bail for the defendant.

“It’s really very case dependent: What’s the evidence look like, how strong is the evidence, is it likely — more than just probable cause — that somebody is going to be convicted,” Allen said. “If the judge is satisfied, then he or she will make that finding and then hold that defendant without bond.”

Sen. Rhonda Fields, an Aurora Democrat who sponsored the legislation, said making this change is important for victims, public safety and Colorado’s well-being.

“This is a fix that the Colorado Supreme Court has asked us to do to be able to make sure that we have a balanced approach for those who have access to bail,” Fields said on the Senate floor.

Since the Colorado Supreme Court decision, about 500 first-degree murder cases involved a defendent now eligible for bail, according to Jessica Dotter, a prosecutor who works with the Colorado District Attorneys’ Council.

It’s really difficult for survivors to deal with the idea and the possibility of their deceased loved one’s killer getting out on bond pending trial.

– Jessica Dotter, of the Colorado District Attorneys' Council

Dotter said she thinks voters will respond positively to the measure, noting that its passage would bring Colorado “in line with the rest of the nation” — she said 46 states have the ability to hold a first-degree murder defendant without posting bond, 36 of which also provide a hearing. She also sees Colorado voters agreeing that first-degree murder defendants present a safety risk to Colorado communities, as well as a flight risk.

“It’s really difficult for survivors to deal with the idea and the possibility of their deceased loved one’s killer getting out on bond pending trial,” Dotter said. “It’s terrifying for them for fears of retaliation, for fears that the person will flee and never actually be prosecuted, and I think that this will give them a real sense of safety and security…”

Other sponsors of the bipartisan legislation, which was approved last week, include Republican Senator Bob Gardner of Colorado Springs, Majority Leader Monica Duran of Wheat Ridge, and Republican Representative Mike Lynch of Wellington.

“This was clearly an unintended consequence of repealing the death penalty that puts the safety of the community at risk, and nearly 500 first-degree murder cases have been impacted since 2020, and courts have set bond in some of those cases,” Lynch said in the House Judiciary Committee hearing for the bill in early February.

Duran said the question ahead of Colorado voters is simple, and she sees them being supportive of the ballot question in November. Since it’s a presidential election year, she said voters are paying attention, and public safety comes up regularly as a top priority for her constituents and others throughout Colorado.

“It’s really just going back to the way Colorado was — it’s nothing new,” Duran said. “We’re not creating a new penalty at all, we’re just going back to the way… it’s been all along except for this little loophole when we removed the death penalty.”

The Colorado Senate unanimously approved the House Concurrent Resolution sending a question to the ballot, as well as House Bill 24-1225, which will implement the change if voters approve the amendment. The House of Representatives passed it with a 59-5 vote.

The five members of the House who voted against the bill included Democratic Representatives Elisabeth Epps, Tim Hernández and Javier Mabrey of Denver, and Lorena Garcia of Adams County, as well as Republican Representative Rod Bockenfeld of Watkins.

Mabrey, who also voted against the bill in the House Judiciary Committee hearing, said he was concerned about the bill’s effect on a defendant’s constitutional rights.

“I felt that it could impact the principle of innocence until proven guilty,” he said in a text message. “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.”

Colorado Governor Jared Polis will need to sign the legislation in order for the question to be placed on the ballot.

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