Judge’s Role in Setting Bail Margie Enquist, District Court Judge

Judge’s obligations Uphold the law / Constitutions Due Process and Presumption of Innocence Release is the norm; detention the exception U.S. v. Salerno N.M. Const. art. II, § 13 / U.S. Const. amend VIII Bail may not be excessive Limited preventive detention Individualized bail determination Stack v. Boyle Least restrictive conditions Rule NMRA State v. Brown

Liberty Appropriately significant safeguards at back end of system Jury trials Unanimous verdicts Presumption of innocence / Proof Beyond a Reasonable Doubt Right to counsel KIV guilty pleas Shouldn’t we give at least as much attention to the front end? Presumed innocent / Probable Cause Majority are released back into the community after plea Or conviction

Why does it matter? Short term  Correlated with recidivism: When held 2-3 days, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours.  When held 4-7 days, it increases to 50 percent  When held 8-14 days, it increases to 56 percent  Failures to appear increased incrementally as well High-risk defendants’ performance unaffected by detention length Laura and John Arnold Foundation Pretrial Criminal Justice Research Summary (November 2013) (

Why does it matter? Long term  Correlated with recidivism: When held 2-3 days, low-risk defendants are 17 percent more likely to commit another crime within two years after completion of their cases than equivalent defendants held no more than 24 hours.  When held 4-7 days, the rate increases to 35 percent  When held 8-14 days, the rate increases to 51 percent  High-risk defendants unaffected Laura and John Arnold Foundation Pretrial Criminal Justice Research Summary (November 2013) (

Impact of Pretrial Incarceration *Lowenkamp, C.T., VanNostrand, M., & Holsinger, A. (2013). The Hidden Costs of Pretrial Detention. Laura and John Arnold Foundation. New York City, NY.

Why does it matter? In sentencing For those detained until trial 4x more likely to be sentenced to jail And for a 3x longer sentence 3x more likely to be sentenced to prison And for a 2x longer sentence Laura and John Arnold Foundation Pretrial Criminal Justice Research Summary (November 2013) (

How did I get into this? Deputy District Attorney Appointed to the bench in 2004 Local criminal justice subcommittee That’s where I experienced a paradigm change

Jefferson County Bail Project What did we do? In early 2010, ran a 14-week pilot project Encouraged bond setting based upon evidence-based practices Eliminated money bond schedule Assessed all Defendants for risk Held all Defendants until they saw a judge (weekends) Prompted less surety and more personal recognizance (PR) or low cash bonds, and more pretrial supervision Defendants represented (at least in felony cases) District Attorney present Staff collected data so we could measure outcomes

Jefferson County Bail Project What did we find? Bond type affected length of time in jail <1 day for PR bonds 7 days for cash bonds 9 days for surety bonds

Jefferson County Bail Project What did we find? Bond type affected how many people posted bond 97% for PR bonds 64% for cash bonds 51% for surety bonds

Jefferson County Bail Project What did we find? Use of money bonds did not Enhance court appearance Enhance compliance with other bond conditions Have any measurable impact on public safety

Jefferson County Bail Project What was the result? Eliminated the money bond schedule Advisements continue 6 days / week All Defendants undergo a risk assessment All seen by a judge DA/PD present for advisements

New Colorado statutes Presumption of release Individualized bail determination Type of bond Money just another condition Must consider financial condition of Defendant Impose least restrictive / tailored / reasonable conditions Avoid unnecessary pretrial incarceration Empirically developed risk assessment / evidence-based practices IF bond schedule – incorporate individualized risk / conditions 7-Day hearing Public Defender initiative

Rule 5-401(C) Factors Nature and circumstances of offense charged COV / narcotic drug Weight of evidence History and characteristics of person Character / physical and mental condition Family ties Past / present residences Length of residence Strong ties to community Possibility person will commit new crimes Past conduct, drug and alcohol abuse, criminal history, FTA On probation, parole, or pretrial / other release Nature and seriousness of danger to community Any other facts indicating person likely to appear

“…defendants who are high-risk and/or violent are often released… nearly half of the highest-risk defendants were released pending trial.” -Developing a National Model for Pretrial Risk Assessment, Laura & John Arnold Foundation

Why Pretrial Supervision? Moderate- to high-risk defendants who are supervised are less likely to fail to appear Moderate (38%) High (33%) Inconsistent findings for low risk Research shows there may be some decrease in future recidivism but too early to tell Laura and John Arnold Foundation Pretrial Criminal Justice Research Summary (November 2013) (

Risk Mitigation Preventive detention GPS Stay away order Curfew Travel restrictions Prescribed contact/supervision Court reminder Risk Level Low High Level of Supervision/Monitoring

State v. Jones and Rule Hierarchy of release options Personal Recognizance Unsecured appearance bond Cash deposit bond (percentage) Property bond Surety bond / full cash deposit Whenever possible, dispense with requirement of financial security Or make specific, written findings Nonfinancial release options Will not reasonably assure appearance Will endanger safety of other person or community Additional nonmonetary conditions Duty to tailor conditions

2013 Conference of Chief Justices “…urge... the adoption of evidence-based assessment of risk in setting pretrial release conditions and advocate for the presumptive use of non-financial release conditions to the greatest degree consistent with evidence-based assessment of flight risk and threat to public safety and to victims of crimes.” “... increase successful pretrial release without imposing unnecessary financial conditions that many defendants are unable to meet.” Resolution Endorsing the COSCA Policy Paper on Evidence- Based Pretrial Release

Who benefits from Evidence - Informed Pretrial Decision Making Everyone Victims (identify those who pose a substantial risk) Potential victims (reduced recidivism) Public Fiscal benefit Safety benefit Law enforcement / County jails / Pretrial agencies Allocation of resources Lower risk defendants Decreased collateral consequences Potential for decreased recidivism Judges

Margie Enquist District Court Judge 1 st Judicial District Colorado co.us co.us