Colorado's Deteriorating Judiciary

Colorado has long been criticized for frontier justice and making a business of incarceration. Recently, however, Colorado judges have been in the spotlight for inconsistent rulings and what some critics call politically and financially motivated sentencing.

InsideWire has investigated complaints made by attorneys who practiced law in rural Fremont County. The county made infamous after a film documentary entitled Prison Valley high-lighted the prison culture imbued in the county's population and their economic dependence on the incarceration industry. The Wire wanted to know if the accusations of judicial inconsistency and biased sentencing were true, especially when applied to the state's severe Lifetime Supervision Act - a law with life and death consequences.

Often condemned nationally and internationally as arbitrary and inhumane, the Lifetime Act was passed by the Colorado Legislature in 1998 as a containment approach to a perceived public safety crisis resulting from a growing number of high profile sex offenses prosecuted in the state and across the nation. Initially designed to legislate increased monitoring and treatment outside of prison, the Lifetime Act is widely acknowledged by judges, district attorneys, and defense lawyers to have turned into a real life sentence. “When I represent clients facing the Lifetime Act, I tell them they are looking at a possible life sentence behind bars," says experienced Denver attorney Chris Decker who specializes in defending those accused of a sex offense. The Lifetime Act has turned into a one size fits all approach here, giving life sentences to everyone from multiple rapists to victimless internet sting offenders.

The two district judges in Fremont County are David Thorson and Julie Marshall, both senior judges with over 20 years of experience on the bench. Through a Colorado Open Records Act request, the Wire has obtained all sentences administered by Thorson and Marshall in sex offense related cases from 1993 to 2009.* The disparity found within the state and between the judges is shocking.

From 1993 to 1998 the average number of sex offenses prosecuted in Fremont County was 1.6 annually. In 1999, the first year the Lifetime Act was enforced, the county's number jumped to eight, an 81.8 percent increase in just one year. From 1999 to 2009 the average number of cases rose to 8.8 with the most cases, 15, sentenced in 2005 and 2008. The increase in cases resulted in a staggering 900 percent increase in sex offense convictions in the county from 1993 to 2009 one of the highest increases in the state.

During the rising tide of sex offense convictions, Thorson and Marshall displayed a significant disparity in sentencing philosophy and interpretation of the law. When determining sentences under the Lifetime Act judges can determine whether an offender serves their sentence in prison or on probation, and sets the minimum amount of prison time an offender must serve if sentenced to prison. As indicated earlier, everyone in the judicial system considers this minimum number, often termed the "bottom number," irrelevant since any prison term under the Lifetime Act is in practice a life sentence.

From 1998 to 2009 Thorson sentenced just two offenders, both repeat sex offenders, to life prison sentences. During the same period Marshall sent 19 offenders to prison for life, with the high water mark coming in 2007 when she sentenced five out of six offenders to life sentences. From 2005 to 2008 when the most prosecutions for sex offenses occurred in the county, an offender faced a 71 percent chance of getting a life prison sentence in Marshall's court as opposed to a 6.5 percent chance in Thorson's court. One defendant convicted in Marshall's court for a victimless internet sting was given 40 years to life. The disparity in sentencing between the two judges, who's courtrooms are only feet apart, shows the subjective nature of the Lifetime Act and the different agendas of the judges that interpret the law in Fremont County.

Marshall's use of the life sentence has helped ensure job security and growth to the prison industry that keeps her county alive. Roger Diamond, an attorney who represented a client in Marshall's court in March 2009, told Will Bigham of the Inland Empire Courts, "The county court in Fremont County has an economic incentive to impose very drastic, extremely high sentences to make sure the prisons that are located in that county have plenty of inmate's."

The Fremont Correctional Facility, where most of the state's Lifetime Act inmates are held, has steadily grown in staff, treatment providers, and inmates since the Lifetime Act was signed into law. Meanwhile, fines levied by both judges have added $513, 618 to the county coffers from 1999 to 2009.

Judicial bias and legislating from the bench are hard accusations to prove, judges in Colorado are given wide latitude within their jurisdictions. In March 2009 Marshall and Assistant District Attorney Kathy Eberling attempted to prosecute Ward Ryan Welty for a sex sting in violation of the Constitution's double jeopardy clause, Welty had already plead guilty to the charges in a plea deal in Judge Harrison's courtroom in California.

According to the Inland Empire Courts blog, Diamond, Welty's attorney stated, "Judge Marshall, in violation of the U.S. Constitution, basically rejected the ruling of Judge Harrison in order to deny the motion to dismiss." Marshall's rejection of Diamond's double jeopardy motion sent Diamond to Colorado's Supreme Court to appeal Marshall's unconstitutional motion ruling. The Supreme Court eventually ruled in Diamonds favor, but no disciplinary action was taken against Marshall's intentional constitutional violations.**

According to Decker, when he represented a client before Marshall, the judge would not allow him to call an exculpatory witness on the defendant's behalf - also a constitutional violation. When Decker objected, Marshall told him, if you don't agree with my ruling, you can appeal it, and let me know how it turns out, because I will be retired before the appeal is heard." Decker says he was, shocked by the outward display of judicial abuse."

When the Wire asked the Colorado Commission on Judicial Discipline about the irregularities in the Fremont Courthouse they replied, "We have no authority to intervene in a judges rulings...selection of jurors, sentencing...and other matters that come before the court. These are matters that are reserved for the appellate courts to evaluate."

The impact of Marshall and judges like her has been significant. As of 2010, 26 inmates sentenced under the Lifetime Act have died in prison waiting for appeals and/or paroles that never came. Over 600 inmates are currently serving sentences longer than their judicially assigned bottom number, and over 1000 wait required treatment from a behavioral health department overwhelmed by clients and years behind treatment schedules. According to Decker, "Without sentencing reform and real judicial oversight that keeps judges from arbitrarily handing out life sentences to nonviolent, victimizes, and first time offenders, the abuses will continue."

*At the time the CORA request was made, 2009 was the last full year data was available.

** Full details of the Welty scandal can be found on the Inland Empire Courts blog, "Welty attorney: 'Scandal' in Colorado case'' published on March 13, 2009.