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    Plea Bargaining and Bonding Out In Colorado – The “Morton’s Fork” Of Being Unable To Post A Bail – Bond …Compelled to “Take A Plea “


    Introduction – The intersection of Colorado’s failed bail bond system and plea bargaining system is what I call a Morton’s Fork. Wikipedia defines a Morton’s Fork as a choice between two equally unpleasant alternatives (in other words, a dilemma), or two lines of reasoning that lead to the same unpleasant conclusion.

    It is analogous to the English expressions “between the devil and the deep blue sea,” “between a rock and a hard place,” and the Spanish phrase, entre la espada y la pared (“between a sword and a wall”). The expression is said to originate with the collecting of taxes by John Morton, Archbishop of Canterbury in the late 15th century, who held that a man living modestly must be saving money and could therefore afford taxes, whereas if he was living extravagantly then he was obviously rich and could still afford them.

    The Morton’s fork in the Colorado criminal justice system is a bail system that compels individuals who have few resources to accept a plea bargain – or spend months in jail awaiting trial.  Why are they in jail? …because they can’t make bail — sometimes as little as $50.

    Here is an example – John’s bail was set at  $3,500 on a simple felony. To gain his freedom he will need to leave that much as a cash deposit with the court to leave jail. Or he could pay a bail bondsman a $350 non refundable fee to do it for him. If he had either amount, he could stand up and walk out the door right now. But he doesn’t. The money, says John, “is like a million dollars to me.”

    The 2012 NPR Series on this subject is attributed with this excellent investigative work.

    A Bail System That Favors Individuals With Money, Family, or Friends With Money

    NPR – National Public Radio reverently took a hard look at this issue – the following excerpt is summarized from that piece.

    People with money get out. They go back to their jobs and their families, pay their bills and fight their cases. And according to the Justice Department and national studies, those with money face far fewer consequences for their crimes.

    People without money stay in jail and are left to take whatever offer prosecutors feel like giving them.

    The Changing Face Of Our Criminal Justice System

    It wasn’t always like this. Twenty years ago nationally and in Lubbock, most defendants were released on their own recognizance. In other words, they were trusted to show up again. Now most defendants are given bail — and most have to pay a bail bondsman to afford it.

    Considering that the vast majority of nonviolent offenders released on their own recognizance have historically shown up for their trials, releasing more inmates on their own recognizance seems like an easy solution.

    Pretrial Release: An Elusive Option

    There is one other solution. It’s a county-funded program called pretrial release. Nonviolent inmates are released under supervision, often with ankle bracelets, drug testing or counseling. It costs only a couple dollars a day, compared with the national average of $60 a day in jail. But it not always easy to obtain release without some form of bail bond even with pretrial release services.

    Colorado Bail Bonds Laws

    The regulation of bail bond agents varies widely across the country. Colorado requires bondsmen to be licensed. Bond agents must undergo, submit to fingerprinting and a background check and be a resident of the state to receive a license.

    The Ins And Outs of Making Bail

    Here’s how it works: You’re arrested. A judge sets bail at $5,000.00. But you don’t have $5,000, so you pay AAA Bail Bond a non refundable fee — at least 10 percent of your bail — and you get out of jail.

    The Bonds Person puts up the total amount; are paid a premium – like insurance fees and as long as the person shows up for court, they make money – a lot of money.

    Little Risk, Big Reward For Bondsmen

    The disparity has served the bondsmen well over the years. Bondsmen’s main responsibility is to bring defendants back to court if they fail to show up. But it turns out that many bondsmen aren’t doing this job.

    Statistically, most bail jumpers are not caught by bondsmen or their bounty hunters. They’re caught by sheriff’s deputies, More often than not, the defendants are rearrested on a warrant by law enforcement that is issued after they fail to appear.

    If a defendant does run, the bondsman is also supposed to pay the county the full cost of the bond as a sort of punishment for not keeping an eye on the client.  But that doesn’t happen very often either. Counties usually settle for a far lower amount than the full bond.

    Few Are Aware Of Other Options

    It is possible to skip the commercial bail bonding business entirely by just paying cash. Show up for court and you get your cash back when the case runs it’s course. But it turns out that this is not as easy as it sounds. It takes hours longer to post a cash bail. And many people don’t even know that it’s an option.

    Most importantly its hard for families to find the cash for bond in this very tough economy

    One reason could be that judges aren’t setting bail at what you can afford to pay. They’re setting bail 10 times higher than what many people can afford to pay a bail bondsman. If a judge thinks $1,000 is a good amount to bring you back to court, then bail is set at $10,000.

    There should be options for people who can’t afford bail other than housing them at taxpayer expense.

    The Decision Of An Innocent Man To Plead Guilty – The Morton’s Fork

    Like thousands of inmates here and hundreds of thousands nationwide, an incarcerated inmate who cannot post bail is left with two options:

    He can fight his case — but he’ll have to do it from here, behind bars — or he can plead guilty and take the 60-day sentence prosecutors are offering him and go home.

    “It’s not a choice,” one inmate says “… if you don’t have money, you have to stay here. It’s ruining your life either way you put it. Either way, you have to be here.”

    Individuals who insist on their innocence and refuse to plead guilty get held. The people who choose to plead guilty get out faster. If a poor inmate insists on his innocence, he stays inside.

    The NPR Story – The True “Cost” Of Trial

    The NPR story follows the life of a man named Green.

    As he talks, it’s hard to imagine Green surviving these months behind bars, waiting for his day in court. At this point, he would have been locked up four times longer than the punishment prosecutors were offering him.

    “Being in jail makes you feel like there’s no use to fighting because [prosecutors] already have it set in your mind that you’re going to do jail time no matter what,” he says. “You’re going to be away from your family and that’s just that.”

    Green has no money, no job, no place to live. And his case is months from being resolved.

    “I’m willing to wait as long as five years if I have to, because I know I’m going to win,” he says. “That’s just how I feel.”

    Green may be guilty or he may be innocent. But the point, he says, is that it’s no longer up to the prosecutors, the police, the jail system or even just his willingness to stay in jail. It will be up to 12 New Yorkers he has never met.

    This is not a fair system – but the bail bond lobby has extraordinary power and influence in Colorado – for now – no one speaks for the Greens of this world.

    How Bail Bonds Work

    What Are Bail Bonds?  – The Bail Bond Process and the Court System in Colorado

    The purpose of the bail system is to guarantee the appearance of a criminal defendant in court, and it is important that you know how the bail bond process works.

    A bail bond is formally known as a “Surety Bond”. Usually, a friend, relative, attorney or defendant will contact a bail bond company by phone. During the initial phone consultation, most bail bond companies will collect basic information about the situation, such as where is the detainee being held, how long have they been there, what are the charges, how long have they been in their current residence, do they work, etc.

    The bail company is assessing the risk involved in the bail bond.

    If the customer chooses to purchase a bail bond, the customer will need to sign bail bond documents including a Bail Bond Application, a Bail Indemnity Agreement, and a receipt.

    After the bail bond paperwork is finalized, a licensed agent will “post” the bail bond at the appropriate detention facility or jail which will result in the release of the defendant. From start to finish, a competent bail bond company will complete the entire bail bond process in 1 to 2 hours. The bail bond process cannot start until all the arrest and booking procedures are complete.

    For this service, the customer is charged a fee usually 10% of the full bail amount.

    By involving family, friends, and possible collateral, the bail bond company can be reasonably assured that an individual released on bail bond will appear at their appointed court date. With their money at risk, the bail bond company has a financial incentive in supervising bailees.

    If a defendant “skips bail “, the bail agent has time to find the defendant and bring them in.

    Arrest and Booking

    When an individual is arrested, generally, they will be taken to a local law enforcement station for booking. During the arrest and booking process, bail will be set, if applicable. After they have been booked, the defendant has several options for release which are outlined below.

    The booking process basically consists of fingerprinting, background check, check for warrants and getting into the computer system. The detainee will be searched for weapons. Their personal belongings will be catalogued and retained by the jailer. During their time in jail the detainee will not have access to their money, credit cards, cell phones, etc.

    After fingerprints are taken, the arrestee is taken to a cell. The cell may or may not have a payphone for use. Some jails allow for phone calls before the person is brought to the cell, others will give phone access when it is convenient for the jailer.

    There is considerable work involved on the part of the jail to get the individual “processed in”. After the jailer has done this work, the computer system needs to update. The entire process can be time consuming. Some jails, especially smaller jails, do this quickly and efficiently and are complete with “processing in” in an hour or less. Other jails take several hours to accomplish this.

    Options for Release:

    Bail Bond (Surety Bond) – (see above)

    Personal Recognizance (also known as “P.R. Bond”)

    Defendants can be released on their own (personal) recognizance, also known as “PR”. This is usually reserved for lesser crimes. Only a judge can decide to release a detainee on a PR Bond. In such a case, the defendant is released with a written promise to appear in court.

    Property Bond

    Release from jail may be obtained by posting a property bond with the court in some. Because Property Bonds involve real estate and can be likened to the buying or selling of a home, the process usually takes weeks. Equity in the property must be equal to 150% of the total bond amount. Fees on a property bond would be similar to escrow fees, appraisal and title search fees, for example. If the defendant fails to complete court requirements, the court would foreclose on the property.

    Cash Bail

    To be released on cash bail, an individual must post the full amount of the bail with the court in the form of cash or cashiers check. In order to post cash bail, an individual should check with the clerk to verify forms of payment accepted in an individual jurisdiction as different courts may have other options or restrictions. The source of funds for large bail generally must be verified to ensure that funds come from legal sources.

    After the case has been resolved, the entire amount is refunded. Cash bail is a good option for people with a low dollar bail amount or who can afford to have large sums of money tied up for an extensive period of time.

    Citation Release (also known as a “Cite Out”)

    A Citation Release involves the issuance of a citation to the arrestee, informing the arrestee that he or she must appear for an appointed court date. This is typical for more minor infractions such as traffic violations.

    Release from Jail

    The jail release process can be likened to the booking process in reverse. Unfortunately for the detainee and the waiting family, it is not like checking out of a hotel where an accounting is presented and paid and you go on your way.

    Regardless of the release option employed, the computer system must be updated, the detainee is brought from the cell, personal belongings are collected and accounted for and the individual receives paperwork explaining the charges and where and when to appear.

    This process may take a few minutes in a small jail, but may take hours in a crowded or busy jail. The timing generally cannot be accurately determined and certainly cannot be guaranteed.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
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