L. O. W. v. District Court In and For Arapahoe County

Decision Date09 February 1981
Docket NumberNo. 80SA479,80SA479
Citation623 P.2d 1253
PartiesL. O. W., Petitioner, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE and the Honorable Richard L. Kaylor, One of the Judges Thereof, Respondents.
CourtColorado Supreme Court

J. Gregory Walta, Colorado Public Defender, Shelley Gilman, Deputy State Public Defender, Littleton, for petitioner.

Robert R. Gallagher, Jr., Dist. Atty., Eighteenth Judicial District, Catherine P. Richardson, Deputy Dist. Atty., Littleton, for respondents.

DUBOFSKY, Justice.

In response to a petition filed under C.A.R. 21, we issued a Rule to Show Cause why the respondent district court should not set bond for the petitioner. We now discharge the Rule.

Petitioner L. O. W., a child 1, was charged in a delinquency petition in Arapahoe County District Court with acts which would have constituted second-degree burglary, a class three felony, section 18-4-203, C.R.S.1973 (now in 1978 Repl.Vol. 8), if the child had been an adult. At a detention hearing on October 23, 1980, the district court heard testimony from the investigating police officer and reviewed both a counselor's report and the petitioner's court history. The evidence disclosed that the petitioner twice had been adjudicated a delinquent child and was the subject of a reserved ruling in another case. He had previously failed to appear for a jury trial and revocation hearing in Arapahoe County and had missed a court appearance in Jefferson County. At the time of the detention hearing L. O. W. was on probation for carrying a concealed weapon. Delinquency petitions based on serious charges were pending against him in Denver and Jefferson Counties. He was also subject to probation revocation proceedings based on the allegations in this case.

The district court found that probable cause existed to believe that the petitioner had committed an act of delinquency and that it was in the best interests of the child and the community 2 for him to remain in detention 3 at the Arapahoe Youth Center. The trial court denied the petitioner's request that bond be set in a reasonable amount. 4

Because no new evidence was adduced at subsequent detention hearings held on October 29 and November 3, 1980, the court continued the petitioner's detention. 5 The petitioner did not present evidence relevant to his request for bond at any of the hearings. 6

The petitioner contends that the trial court's refusal to set bond contravenes U.S.Const., Amend. VIII and Colo.Const., Art. II, Sec. 20 7 prohibiting excessive bail, and sections 16-4-101, C.R.S.1973 (1979 Supp.), 8 16-4-102, C.R.S.1973 (1978 Repl.Vol. 8), 9 and 19-2-103(7), C.R.S.1973 (1978 Repl.Vol. 8). 10 We conclude that a child does not have an absolute constitutional or statutory right to bail pending adjudication of the charges filed against him in juvenile court. Because the respondent district court's findings in this case justified detention of L. O. W. without bail we discharge the Rule.


We issued the Rule to Show Cause in this case on November 3, 1980, but, in order to avoid protracted juvenile court proceedings, we denied petitioner's request that the proceedings be stayed. On December 15, 1980, the petitioner appeared before the respondent court and admitted engaging in conduct which would have been aggravated motor vehicle theft if committed by an adult. 11 The court then detained the petitioner without bond until the dispositional hearing on January 5, 1981.

Since the decree of disposition has been entered the petitioner's appeal is technically moot. However, because the substantive issue is an important public question "capable of repetition yet evading review," Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, Colo., 620 P.2d 1051 (1980); Rocky Mountain Association of Credit Management v. District Court, 193 Colo. 344, 565 P.2d 1345 (1977), we elect to decide the substantive issue raised by the petition to establish a precedent for future action by the state's trial courts. Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, supra; In re M., supra; State v. Gleason, 404 A.2d 573 (Me.1979); People ex rel. Wayburn v. Schupf, 47 App.Div.2d 79, 365 N.Y.S.2d 235 (1975).


The Eighth Amendment to the United States Constitution provides that "(e) xcessive bail shall not be required ...." Beginning with the Judiciary Act of 1789, 12 federal law 13 has provided that, in all but capital cases, a person accused of a crime has an absolute right to be admitted to bail. The United States Supreme Court has interpreted the Eighth Amendment to require that bail be set because the

"... traditional right to freedom before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction.... Unless this right to bail is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning."

Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3, 6 (1951); Foote, The Coming Constitutional Crisis in Bail I, 113 U.Pa.L.Rev. 969 (1965); Foote, The Coming Constitutional Crisis in Bail II, 113 U.Pa.L.Rev. 1125 (1965).

Section 20 of Article II of the Colorado Constitution is identical to the Eighth Amendment. In addition, Section 19 of Article II of the Colorado Constitution provides that:

"All persons shall be bailable by sufficient sureties except for capital offenses, when the proof is evident or the presumption great."

We have interpreted Section 19 to confer an absolute right to bail in all except capital cases. Gladney v. District Court, 188 Colo. 365, 535 P.2d 190 (1975); Shanks v. District Court, 153 Colo. 332, 385 P.2d 990 (1963). The purpose of bail is to ensure the defendant's presence at trial and not to punish him before he has been convicted. Lucero v. District Court, 188 Colo. 67, 532 P.2d 955 (1975).

Rights provided to adult defendants in criminal proceedings, however, have not been made uniformly available to juveniles because the protective purposes of juvenile proceedings preponderate over their punitive function. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); P. V. v. District Court, Colo., 609 P.2d 110 (1980); People v. L. A., Jr., Colo., 609 P.2d 116 (1980). Although early decisions held that "the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury," In re Gault, supra, 387 U.S. at 14, 87 S.Ct. at 1436, the "applicable due process standard in juvenile proceedings, as (since) developed by Gault and (In re) Winship (397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)), is fundamental fairness." McKeiver v. Pennsylvania, supra, 403 U.S. at 543, 91 S.Ct. at 1985, 29 L.Ed.2d at 659. 14

Applying this standard, the United States Supreme Court has held that a hearing is required before a juvenile court may waive jurisdiction of a minor and transfer him to criminal court, Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); that the right of written notice, the right to counsel, the privilege against self-incrimination, and the right of confrontation and cross-examination of witnesses are available in juvenile delinquency adjudications, In re Gault, supra; that the criminal standard of proof beyond a reasonable doubt is applicable to delinquency adjudications, In re Winship, supra; and that double jeopardy protections apply to juvenile adjudicatory proceedings, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1974). However, in McKeiver v. Pennsylvania, supra, the Supreme Court refused to extend the right to a jury trial to juvenile cases, finding that the benefits of a juvenile court's ability to function in a unique manner outweighed the fact-finding advantages of a jury trial.

The general thrust of these Supreme Court decisions has been to accommodate the goals and philosophies of the juvenile system within the due process framework of fundamental fairness. Hill, The Constitutional Controversy of a Juvenile's Right to Bail in Juvenile Pre-Adjudication Proceedings, 1 Hastings Const.Law Q. 215 (1974).

We have held that the fundamental fairness standard obligates trial courts to comply with statutory and constitutional speedy trial requirements in juvenile as well as adult proceedings, P. V. v. District Court, supra; that the standard of proof beyond a reasonable doubt which governs adult probation revocation proceedings also governs juvenile probation revocation proceedings, People in the Interest of C. B., 196 Colo. 362, 585 P.2d 281 (1978); and that the rule authorizing an adult defendant in a criminal proceeding to challenge for cause a prospective juror employed by a law enforcement agency is equally applicable to juvenile delinquency proceedings, People in the Interest of R. A. D., 196 Colo. 430, 586 P.2d 46 (1978). 15 However, Sections 19 and 20 of Article II of the Colorado Constitution have not heretofore been applied to juvenile pre-adjudication proceedings. 16

To determine whether a juvenile has a constitutional right to bail, we first must inquire whether consistently with fundamental fairness " 'the juvenile court's assumed ability to function in a unique manner,' McKeiver v. Pennsylvania, supra 403 U.S. at 547, 91 S.Ct. at 1987," Breed v. Jones, supra 421 U.S. at 533, 95 S.Ct. at 1787, justifies withholding from juveniles the constitutional right to bail. We must weigh the adverse impact of bail on informal pre-adjudication juvenile proceedings against the benefits to be anticipated from a right to bail. Hill, The Constitutional Controversy of a Juvenile's Right to Bail, supra.

The use of bail in adult criminal proceedings has been criticized, see Foote, The Coming Constitutional Crisis in Bail, supra, particularly because it disadvantages indigent defendants. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v....

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