Anyone familiar with this blog is familiar with Colorado's abusive Lifetime Supervision (incarceration) Act that will keep thousands of inmates behind bars years past their legislatively mandated release date - some for more than a decade.
According to the 2010 Lifetime Supervision Annual Report published by the Department of Corrections, there are now over 1,537 inmates under the Lifetime Act currently incarcerated in Colorado prisons, a 11.5 percent increase in one year. In the first ten-year period since the bill was enacted, only eight inmates were paroled, a rate of 0.78 percent per decade. In 2010 the parole rate increased to 5 percent, 33 inmates were released to lifetime intensive supervision - unfortunately 178 inmates took their place in prison under the Lifetime Act. The human and financial cost of this policy is staggering and unsustainable. There are currently 510 inmates: a third of the lifetime population, incarcerated past their sentence requirement. The one-year price tag to keep these men locked up is over $15.3 million. The cost to humanity is immeasurable.
Previous articles on this blog have attempted to put human faces to the tragedies suffered by those trapped by Colorado's indeterminate incarceration long after their debt to society has been paid. Men who have died from medical conditions that could have been treated if they were released on time, to date 24 men have died waiting for freedom. Then there is the epidemic sense of hopelessness experienced in the indeterminate population that has led nearly all to contemplate suicide and several to attempt it.
This week, guest legal correspondent, Dan Anderson, identifies significant administrative and constitutional problems with the statute and how it has been implemented over the past 12 years. Anderson's insightful and well researched arguments call on the legislature and the courts to remedy the injustice for the benefit of all.
Recently, the reform group Advocates for Change (advocates4change.org) presented each member of the legislature with a copy of Anderson's article, possibly making this paper the most influential document to define this divisive issue. InsideWire is proud to provide this thought provoking exclusive - direct from the hands of our elected leaders to your computer screen.
A.D. Rudder, Editor
insidewireadrudder.blogspot.com
Straight talk about Colorado's Lifetime Supervision Act
By Dan Anderson
To whom it may concern: After witnessing Governor Ritter's veto of House Bill 10-1364, which was designed to address some of the known issues surrounding the Lifetime Supervision of Sex Of fenders Act (''Act''), many of us who are subject to the Act have come to understand that the political realities of public perception often outweigh the logic of change for even the most practical reasons. We also recognize that little about the Act is likely to change unless we take the lead in pressing for it. After all, there is little willingness by legislators, and even less sympathy from the public, for making any change which stands to benefit convicted sex offenders, even when that change is good public policy and makes fiscal sense.
After conducting substantial research, we have identified several issues of constitutional dimension with respect to the Act, and we are moving forward with a legal challenge which seeks to force judicial remedy, since the Legislature has shown little appetite for resolving these matters of its own volition.
This document spells out the particulars of what we assert are substantial and constitutionally impermissible aspects of the Act which must be remedied, and by presenting this material to you we are hopeful that you will join us in the effort to make that happen. Whether you choose to assist us with research and materials, submit a brief in support of our position with the courts, or simply help us to make a case for change with fellow politicians and others in a position of influence, any effort you are willing to make is most appreciated. If you have questions or would like to know more about how you can become involved then we welcome your inquiries.
ISSUES PERTAINING TO THE CONSTITUTIONALITY OF THE LIFETIME SUPERVISION ACT
The premise of our challenge to the Act falls along three broad lines: the Act is impermissibly vague and ambiguous, not based on language contained in the Act but what is absent from it; the Act violates the doctrine of separation of powers; and the Act is not being implemented in the manner as understood and intended by the Legislature.
LEGAL HISTORY
To appreciate the nature of the issues we intend to bring, one must leave have some understanding of the legal challenges which precede us and why we are undaunted by them. Beginning with People v. Oglethorpe and leading all the way up to the recent decision of the U.S. District Court in Firth v. Shoemaker, there have been a number of actions which have been brought in both state and federal courts seeking to challenge the constitutionality of the Act. Many of these, such as Oglethorpe, addressed issues such as due process, equal protection, and the prohibition on cruel and unusual punishment, while others, as in Vensor v. People and People v. Trucker, attempted to attack legislative intent by applying very liberal interpretations to the plain language of the Act. Yet others, such as Firth and Beebe v. Stommel, have used a more indirect route, such as asserting protected liberty interests in sex offender treatment and parole eligibility. Virtually all of these challenges failed, and even the ones that didn't met with only limited success. None of them had any meaningful effect in changing the Act or relying its fundamental laws.
We have adopted a more reasoned and systematic approach which, as its principal advantage, uses documentary evidence to substantiate what the Legislature understood and intended the Act to be. We are convinced that with the right support from organizations and individuals such as yourself, we can either convince the Legislature (or compel the courts) to reform the Act so that it meets its intended purpose.
DETAILS OF THE ISSUE
Lack of Standards: In crafting the language of the Act, the legislature did not include any provisions which mandate standardization of the treatment programs to be utilized statewide by private and state-operated sex of offender treatment providers. As such, each provider can choose its own approach and methodology to sex offender treatment within the broad confines of the Sex offender Management Board’s (SOMB) guidelines . The most obvious and impactful consequence of this omission is that it prevents the collection and analysis of statistical data on the success and progress rates of offenders who are participating in treatment as a whole and on a relative basis of one provider versus others. In other words, how can the efficacy of a program operates by T.H.E. be contrasted or compared to the success of one operated by R.S.A. or the Department of Corrections? Secondarily, it impairs the Legislature's ability to determine the efficient distribution of resources for treatment programs when there is no consistent means of evaluating which ones are proving to be the most effective. Finally, the use of disparate treatment methodologies among providers has led to a very uneven continuum of treatment for offenders transitioning from one program to another. For instance, the treatment program utilized by the Department of Corrections is not recognized by community-based providers, meaning that offenders returning to the community from prison are required to start treatment all over again with a new provider, regardless of the progress or time spent in treatment under DOC.
No Statutory Mandate of Authority: Another glaring omission by the Legislature was the failure to confer adequate authority on the SOMB which would enable it to oversee and regulate sex offender treatment programs operated by DOC. This conflicts with the statutory mandate of the SOMB established several years prior to passage of the Act, to develop the standards and guidelines for the identification, evaluation, treatment and monitoring of sex offenders statewide. While DOC is statutorily mandated to contract only with treatment providers who are licensed with and adhere to SOMB standards, the Department of Corrections sex offender treatment programs themselves are not subject to the regulatory oversight of the SOMB, and as such, DOC may operate its programs essentially as it sees fit. This fact became an interesting point raised by the court in Firth, when it noted the absence of any statutory language mandating the point at which DOC is obligated to provide treatment to offenders under the Act and instead accorded great deference to DOC’s own administrative regulations governing how and when it chooses to provide treatment. It is difficult to comprehend a scenario under which the Legislature would provide an agency with sweeping regulatory authority over every privately-operated treatment provider in the state while simultaneously denying it that same authority over a state agency operating the single largest treatment program in Colorado.
Violation of Separation of Powers: The holding of the U.S. District Court in Firth makes a compelling argument for a separation of powers violation caused by the vague and ambiguous language of the Act. The court held, in part, that:
...[t]his statute [18-1.3-1004(3), C.R.S.] contains no apparent requirement that such [sex offender] treatment be supplied in a way as to permit its completion prior to the expiration of a minimum sentence date...several facets of [Colorado Department of Corrections] AR [Administrative Regulation] 700-19 indicate went CDOC officials enjoy considerable discretion in determining when an inmate is given access to SOTMP[sex offender treatments]. More importantly, it indicates that prison officials “may...prioritize'' inmates for treatment based on a variety of factors, of which the inmate's parole eligibility date is but one. Depending on how prison officials balance the various factors, an inmate with an imminent parole eligibility date might be considered to be a lower priority then an inmate with a later parole date but with, for example, a more compelling behavioral record. Similarly, though the regulation offers guidance in prioritizing inmates, apparently placing inmates like Mr. Firth in the highest priority level, the regulation does not contain any mandatory language that requires officials to provide these inmates access to SOTMP by a certain point in time. Moreover, the regulation repeatedly makes clear that “limited resources'' are available for SOTMP programs, and that “waiting lists” will commonly prevent an inmates immediate entry to the program, further diminishing any inmate’s reasonable expectation that SOTMP access will be provided in sufficient time that the program can be completed before the inmate’s minimum sentence date passes... Under these circumstances, to the extent Mr. Firth’s procedural Due Process claim is premised on a contention that he enjoys a liberty interest in SOTMP access sufficiently in advance of his earliest parole eligibility date that he can complete the program by that date, the court finds no source of state law that creates such a liberty interest. (a11 emphasis added)
There is arguable merit, unfortunately not offered in Mr. Firth's briefs, to the assertion that such a liberty interest is indeed created when CDOC Administrative Regulation 700-19 is read in conjunction with the Colorado Parole Board's guidelines, which provide a list of seven criteria which must be met as a predicate to parole eligibility, most prominent of which is the requirement to have completed Phase I SOTMP and be progressing in Phase II.
In reading the Firth opinion, a larger and more troubling issue arises, that of separation of powers. As has been affirmed in cases including Vensor, trial courts are required under statute to impose an indeterminate sentence upon Act offenders which has a maximum term of natural life and a minimum term which, except under extraordinary circumstances, must fall within the standard presumptive range for the corresponding felony class. There is point and purpose in the legislature's decision to leave determination of the minimum sentence for Act offenders to the sound discretion of the trial court, since it is in the best position to evaluate the facts on which the sentencing decision rests. Firth disregards this by stating that the lack of any statutory law or other provision circumscribing how and when CDOC must provide sex offender treatment essentially permits CDOC to disregard the minimum sentence of an offender if doing so suits its own administrative guidelines. This subverts the intent of the trial court in crafting any particular minimum sentence which it deems appropriate and conflicts directly with the testimony of Representative Norma Anderson, the Act's sponsor, before the House Judiciary Comettee on January 27, 1998, when she assured the committee that the Act would not extend the sentences of sex offenders and would simply change a court’s ability to monitor sex offenders by subjecting them to lifetime probation or parole (paraphrasing the court in Vensor).
To fully appreciate and understand this point one must realize the steps involved in sex offender treatment which must be completed in order to constitute the “progress” of which the Firth court spoke for purposes of parole eligibility. First and foremost, all Act offenders must complete “Phase I” treatment, an initial level which ostensibly is six months in duration but which is more realistically seven to ten months. Upon completion, offenders must then be screened for, and wait for placement in, “Phase II” treatment, the format of which is determined by the inmate's minimum sentence length.
This process can take anywhere from a few weeks (very atypical) to a year, with a median of roughly six months. Only upon commencing “Phase 2” treatment can inmates then begin work on meeting the regaining criteria which are required to be legitimately parole-eligible and can take some time to complete. The Firth court wrongly assumed, based on Mr. Firth’s briefs, that merely being in some form of treatment at the time of parole consideration was sufficient to demonstrate ''progress'' for purposes of release.
Clearly such a process takes a substantial amount of time, which is why the timing as to when CDOC places an inmate into SOTMP is so critical. If that placement occurs when the expiration of the minimum sentence is imminent or already past then there is absolutely no way for the inmate to demonstrate adequate enough progress (by completing the parole board's seven criteria) to even be a viable candidate for parole, and they will automatically be deferred for up to three years. This cannot be what the legislature intended and it arguably constitutes violation of separation of powers, since CDOC is making its own determination of when treatment is to begin for any inmate, regardless of the minimum sentence (or judicial intent) of the trial court.
Finally, it could be argued that the Firth holding undermines the basis of plea bargaining, since there can be no reasonable assurance on the part of the district attorney as to what the minimum sentence they agree to actually means and how CDOC’s policies for determining when and how SOTMP access is provided will impact parole eligibility and the prospect or potential for release.
The Act As Applied Does Not Meet Legislative Intent: There have been many attempts to address the legislative intent underlying the act, and virtually all have focused on the statutory language of the Act. However, none have used documents which were central to the debate leading to passage of the Act.
The most relevant document is the State Revised Fiscal Note (“Note”), prepared by the Colorado Title Board in compliance with 1-40-106, C.R.S., and the accompanying summary were intended to provide legislators with a clear explanation of how the proposed Act would work and how it would impact state finances. The Note painted a picture that would lead the reasonable person to believe that the Act was designed only to increase the treatment and monitoring of sex offenders, and that the vast majority of those sentenced under the Act would obtain treatment while incarcerated and then successfully transition back into the community on parole. It was emphatically stated in the Note that only those offenders who refused to participate or were incapable of doing so were expected to serve more than the minimum terms of their sentences, and this number was estimated to be approximately three percent (3%) of the total.
Additionally, it was estimated that by the end of the 2002-2003 fiscal year there would be more than 400 Act offenders on lifetime parole and that more then 20 offenders would be sent to community corrections from prison within six months of the Act’s enactment.
The reality is that more than a dozen years after the Act went into effect, fewer than 100 offenders have been paroled, and even fewer yet have been placed in community corrections. This leaves two distinct possibilities. Either the Title Board got it completely wrong when it prepared the Note, which is difficult to accept given that the Board would have consulted with the various agencies and departments which would be involved in carrying out the Act's mandates, including the department of Justice and Department of Corrections, among others. The other option is that the Board was correct in its estimates and assumptions and the manner in which the Act has been carried out does not meet them. The latter is the most likely scenario, and this is supported by once again referencing the testimony of Representative Anderson before the House Judiciary Committee and her statements as to the intent of the Act.
It is incontrovertible that the Act has not functioned in the manner which the Note explained or otherwise implied, and the presumption must be that the Colorado Title Board carried out its duties as required under 1-40-106, C.R.S. Given these facts, it is clear that the Act is not being carried out in the manner which the Legislature understood or intended, and thus it must be abandon to correct the deficiencies.
In conclusion, we are confident of the issues presented here, and we are hopeful that you will be convinced to join our efforts to bring meaningful reform to the Act.
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