On November 5, 2024, Colorado voters passed Amendment I and Proposition 128 into law. Amendment I strengthens the law related to posting bail in first degree murder cases. Proposition 128 toughens the law applicable to parole eligibility for violent crimes. This article summarizes the history and content of these laws and what individuals can expect now that these ballot measures have passed.
AMENDMENT I
Generally, a person accused of a crime in Colorado has the right to bail out of county jail while awaiting trial. Prior to 2020, there was, however, an exception to that rule. In first-degree murder cases in which the death penalty could be sought, a judge could preclude a person from posting bail where the “proof is evident and the presumption is great” that the person committed the crime following an evidentiary hearing on the issue. In 2020, lawmakers abolished Colorado’s death penalty and in 2023, the Colorado Supreme Court ruled that a judge no longer had the ability to deny a person charged with first-degree murder the right to bail out of county jail prior to trial.
In 2024, the Colorado Legislature referred Amendment I to the Colorado Constitution to the people, placing the measure on the ballot and it passed. Amendment I reinstates the former rule allowing a judge to preclude a person accused of first-degree murder from posting bail where the “proof is evident and the presumption is great” that the person committed the crime following a hearing on the issue.
As a result, first-degree murder defendants will now attend an additional hearing on the issue of eligibility for bail and, depending on the judge’s ruling, may be forced to await trial in jail.
PROPOSITION 128
A citizen initiative placed Proposition 128 on the 2024 ballot and a majority of Colorado electors on this issue voted in favor of the measure, passing it into law.
Prior to the passage of Proposition 128, Colorado law required that a person convicted of certain types of violent crimes had to serve 75% of their prison sentence (less “earned time”)1 before being eligible for discretionary parole. Once a prisoner served 75% of their sentence, the State Board of Parole then had the discretion to release an inmate prior to serving the full sentence.
Effective January 1, 2025, Proposition 128 mandates that persons convicted for certain violent crimes, such as second-degree murder, first- or second-degree assault, aggravated robbery, class 2 felony kidnapping, first-degree arson, and first-degree burglary, must now serve 85% of their prison sentence (with no adjustment for earned time) before becoming eligible for discretionary parole. In addition, persons convicted of a third crime of violence are no longer eligible for discretionary parole or earned time reductions. The 75% rule will continue to apply, however, to any individual convicted prior to January 1, 2025.
Other than accounting for the time of service, the change in the law is not anticipated to alter prison procedure or the number or types of hearings a person must attend while in prison or when going before the parole board.
It is estimated that about 220 individuals a year are sentenced to prison for crimes of violence affected by this law and serve an average of 23 years in prison. It is anticipated that individuals who are convicted of certain violent crimes after January 1, 2025 will serve extended prison time and, therefore, government spending will increase between $12 and $28 million per year to keep prisoners incarcerated.
[1] Under the old law, “earned time” is subtracted from the percentage of time served. Prisoners may be awarded “earned time” as an incentive for pursuing certain personal, educational, and professional goals in prison.
If you are facing criminal charges or may be impacted by any of the changes in the law discussed above, contact BHGR’s Criminal Law Group to determine if we can assist you.
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