Background
Colorado’s constitution guarantees virtually every criminal defendant the right to bail pending trial. The one historic exception — the “proof evident” exception — allowed courts to deny bail entirely when the evidence clearly showed a defendant committed a “capital offense,” meaning a crime punishable by death. That exception became moot in 2020, when the General Assembly abolished capital punishment for all offenses charged on or after July 1, 2020. Without the death penalty, there could be no capital offense, and therefore no proof evident exception. The Colorado Supreme Court confirmed this in People v. Smith, 2023 CO 40.
Moises Rodriguez-Nunez, who was sixteen years old at the time, was charged with first degree murder after deliberation for an alleged homicide committed in Greeley in 2021 — after the death penalty repeal but before any restoration. In July 2025, the district court set a $5 million cash-only bond. Defense counsel moved for a reduction and a change in bond type, arguing that a $5 million cash bond was functionally equivalent to holding Rodriguez-Nunez without bail. The court denied the modification, pointing to the alleged facts and to the voter-approved 2024 constitutional amendment (Amendment I) that restored the proof evident exception for first degree murder offenses. Rodriguez-Nunez petitioned the Court of Appeals for review.
Between the 2020 abolition and the December 17, 2024 effective date of Amendment I, there was a roughly four-and-a-half-year window during which first degree murder defendants in Colorado had an absolute constitutional right to bail, just like defendants charged with any other crime. The question before the court was whether Amendment I applied retroactively to defendants whose alleged offenses fell within that window.
The Court’s Holding
The court held that the 2024 constitutional amendment does not reach back to offenses committed during the abolition window. The amendment’s text and its enabling resolution expressly limit its application to offenses “committed on or after” December 17, 2024. Rodriguez-Nunez’s alleged offense occurred in 2021 — three years before the amendment took effect. Applying the amendment to him would give it retroactive effect that its plain language does not authorize and that the voters who approved it did not intend.
The district court erred by relying on the 2024 amendment and by setting a cash bond so high that it effectively denied bail entirely without the legal authority to do so. Under People v. Smith and the constitutional right to bail as it existed in 2021, Rodriguez-Nunez was entitled to a bail determination governed by the ordinary statutory framework: the court must presume eligibility for release, must use the least restrictive conditions necessary to ensure appearance and community safety, and may set a monetary bond only if a nonmonetary bond is insufficient — and must make factual findings on the record to support any such requirement. The court granted the petition and remanded for a proper hearing.
Key Takeaways
- Colorado’s 2024 constitutional amendment restoring the proof evident bail exception for first degree murder applies only to offenses committed on or after December 17, 2024 — defendants charged with murders committed between July 1, 2020 and December 16, 2024 retain the pre-amendment right to bail.
- Setting a bond at a level no defendant could realistically post (e.g., $5 million cash-only for a minor with community ties) constitutes a de facto no-bond hold and violates the constitutional right to bail if the proof evident exception does not apply.
- When courts lack the authority to deny bail, they must follow the statutory framework: presume eligibility for release, use least-restrictive conditions, and make on-record findings to justify any monetary requirement or its method of execution.
- Defense practitioners should examine the date of the alleged offense in first degree murder cases filed after Amendment I took effect; those involving pre-2024-17 offenses retain the right to bail under the abolition-window framework.
Why It Matters
Colorado’s death penalty abolition in 2020 and the subsequent constitutional amendment in 2024 created a uniquely complex transitional period for bail law. This decision resolves one of the most significant open questions from that transition: the 2024 restoration is prospective only, and defendants whose alleged crimes fell in the four-year abolition window have enforceable constitutional bail rights that the district courts cannot sidestep by setting astronomically high cash bonds.
For defense counsel, this is a clear directive: if a client is charged with first degree murder for a pre-December 2024 offense, any bond designed to be unachievable is subject to challenge. For prosecutors and trial courts, the decision is a reminder that the proof evident exception — now restored for future offenses — does not fill the gap retroactively, and that pre-amendment defendants must receive genuinely meaningful bail consideration under statutory criteria.