Lawmaker who repealed Colorado’s death penalty says accused killers getting bond wasn’t intended

DENVER, Colo. (KRDO) -- After a recent Colorado Supreme Court decision ensured that people accused of 1st-degree murder have a right to get a bond from a judge, Colorado Governor Jared Polis is calling this an "unintended consequence" of abolishing the death penalty in 2020. Now, a lawmaker who wrote legislation to repeal it, says she agrees this ramification wasn't intended.

This ruling came down on June 20, stemming from Colorado v. Smith, a defendant who was previously charged with first-degree murder and was held on no bond. That decision in every criminal 1st-degree murder case is made by the judge presiding over the case. However, Smith's attorneys argued, and the seven justices agreed, that the trial court "abused its discretion" by denying Smith bail.

In the Colorado Supreme Court's opinion, they argued that because 1st-degree murder is considered a "capital offense," and capital offenses can be punished by the death penalty, state judges cannot deny someone accused of murder the right to post bond.

To be considered a capital offense, a case has to meet certain provisions.

In a statement, Colorado Governor Jared Polis called on the legislature to amend the state constitution to fix this potential loophole, but Polis stopped short of saying there was a need for an emergency session before January 2024.

"The Governor is committed to making Colorado one of the top ten safest states in the nation in the next five years, and that includes holding criminals accountable and protecting victims of crime. The Governor supports changes to prevent suspects formally charged with capital offenses from getting out on bail, and now that the Supreme Court has ruled, he calls upon the state legislature to fix this unintended consequence of eliminating the death penalty even if it takes a referred constitutional amendment, which could not be referred to the ballot until the 2024 election."

Conor Cahill, Spokesperson for Governor Jared Polis

Thursday, former Democrat state Representative Adrienne Benavidez, who helped passed the death penalty repeal legislation, said she agrees that this Supreme Court decision wasn't something lawmakers had on their radar.

"It was probably unintended, but it might have been if 'I didn't think this through well enough,' but somebody else might have said, 'yeah, let's not even concern ourselves with that," Benavidez said. "I don't recall myself or the other sponsors having a discussion about the impact on the constitutional provision that prohibits bail for capital offenses."

There are renewed calls for amending the state constitution coming from Colorado Senate and House Republicans. Minority Leader Representative Mike Lynch, issued this statement Thursday:

"When the Colorado Supreme Court made their ruling, the Colorado House Republicans began working with DA’s and local law enforcement to draft law-and-order legislation for next session. We agree with our colleagues in the Senate that the issue of crime is urgent and deserves immediate attention.  We pray for Governor Polis to have the safety and security of our working families as a first priority.  If the governor decides not to take decisive action, the House GOP stands ready to address the issue in the next session.”

Mike Lynch, (R) Wellington

A special session, which would likely occur before the 2024 legislative session reconvenes, would have to be called by the Governor. However, as Benavidez explains, a special session may not bring a quicker fix than passing these amendments next year.

"If they wait till January and they bring a bill, it's going to have to be a preferred measure. So that won't be till the next election at the earliest," Benavidez said.

The legislature cannot refer a constitutional measure to the ballot for 2023 because it is not an issue arising under TABOR, which is the only question that can be referred to voters in odd years. The necessary fixes, in this case, would require amending the Colorado constitution on the right to bail.

Benavidez believes judges are setting bond amounts in 1st-degree murder cases that are too "excessive," and are a direct contradiction to the rights to bail laws that already exist.

"Right now, they're subject to bond, to have bail and that happens right now. If they can afford it, they get out. We clearly don't think that's a risk as a society because we allow for that. The only ones that can afford the bond are people without means," Benavidez said.

The former representative from Commerce City and parts of Adams County says amending the state's bail laws will be no easy task. She said this is because the legislature is now tasked with determining which "capital offenses" should be worthy of restricting someone's right to bail.

"What we refer to as capital offenses were mostly first-degree murder with certain conditions, and there was like 17 conditions that. So going through all 17 of those various conditions to determine are those things we would still want to do and be very specific about them. But I think it's worthy of consideration by the legislature," Benavidez said.