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Are There Risks in Posting Cash Bail?

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As Americans, we’re naturally generous to a fault, letting our “better angels” fly to the fore when a minor percentage would rather turn away from someone in need. If that someone in need happens to be requesting help posting cash bail, our advice is to think twice because of the risks involved, as you’ll see below. Other topics to chew on include a nationwide discussion about the constitutionality of cash bail (go figure), and Colorado lawmakers pushing hard for SB-62.

Are There Risks in Posting Cash Bail?

We run into oddball situations all the time when it comes to cash bail. For instance, a family member or friend of a recently incarcerated person will contact a bail bondsman in Jefferson County for more information about bail bonds. The question always becomes, “Can I just post bail myself instead of having you guys do it?” Well, of course it is but it’s not advisable. There are risks.

Cash bail is perilous for anyone who wants to do right by a family member or friend who’s been arrested. Forking over a stash of money to the courts could mean you’re short of funds you need to defend in court, or for your own personal expenses. Cash bail is normally returned to whoever posts it once a trial concludes, but not always. Many state laws provide the courts a means to keep the bail if the defendant is found guilty. If the defendant skips a court date, the whole cash bail amount will be surrendered without recourse. Because of this, working with an Arapahoe County bail bondsman can provide much-needed financial security.

Another potential risk? If you agree to bail and sign a contract, you are known as the “Indemnitor.” Bail bond contracts are a kind of insurance. By paying bail, you assure the courts that the person who was arrested will show in court in exchange for being allowed to leave prison.

Is Cash Bail Unconstitutional?

Bail bonding professionals in Denver County will get a chuckle out of this one, or just shake their heads in disbelief. To begin with, not everyone loves the Constitution, as demonstrated on January 6 in Washington, D.C. People love it, hate it, or are indifferent based on a lack of understanding. Which we get.

But what’s going on now is that cash bail opponents are insisting that the system is unconstitutional. According to one newspaper account, critics nationwide of “cash bail say that the system unfairly targets poor people as an individual’s ability to get out of jail before their trial becomes solely based on whether they can afford bail.”

If you think this sounds like a worn, broken record – you’re right. To the apostates of cash bail reform, the system’s been designed from day one to take advantage of someone – the poor, certain racial groups, and so forth.

Cash bail opponents say the system is problematic because the practice flouts the U.S. Constitution by permitting one person to be kept in jail and another person to be set free just because the other person can afford to pay bail. This kind of sounds like the argument lawmakers in California make about the failure of Prop 25 – a law is only good if it works to the advantage of a specific mindset.

However, the Federalist Society - that bastion and moral compass of all things conservative and libertarian - has a different take on the situation. In a 2017 blog post, it states: “Those defending the constitutionality of money bail, including conservative lawyers Paul Clement and Chuck Cooper, point to the Eighth Amendment, arguing that money bail is constitutional even when an individual cannot afford to pay bail, so long as the amount is reasonably calculated to assure his appearance at trial.”

Pushback in Colorado?

Ah, yes. Where would we be if we couldn’t wax poetic about what’s happening in our own beloved Colorado? When opponents of cash bail reform can’t get their way in one fell swoop – when they play the failed racial, emotional, or social justice angle – they pirouette gracefully, and continue to do so, until their dance routine befuddles the average voter so much it begins chipping away at one’s notion of common-sense cash bail reform. To paraphrase the Borg villains in the Star Trek franchise, “Resistance is futile.”

By that, we mean that clever cash bail opponents are leaning into other legislation, hoping to establish a beachhead for future support. If they can get voters to pass something with even minor reform, then they’re off to the races and no one’s the wiser.

Now, Colorado legislators are pushing SB-62 to largely reform confinements and pre-trial arrests. According to one report:

“Senate Bill 62 promises two major changes; first, the bill would prohibit peace officers from arresting someone who commits low-level crimes. Those crimes include:

  • A traffic offense
  • A petty offense
  • A municipal offense
  • A misdemeanor
  • A class 4, 5 or 6 felony
  • A level 3 or 4 drug felony
  • “Instead of arresting the suspect, the officer would instead issue a court summons.”

But opponents aren’t just rolling over without a fight. Sen. John Cooke, R-Greeley, the former sheriff of nearby Weld County said, “It doesn’t do anything for community safety. As a matter of fact, it makes communities less safe. It’s pro-criminal. I wouldn’t say it’s anti-victim, but in a way it is.”

Cooke's take is the state suffers from a crime problem that leads to exploding jail population numbers, rather than just a simple case of over-incarceration.

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