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Tuesday, November 8, 2011

New Challenge to Colorado's Indeterminate Sentence

CANON CITY, Colo. -- Earlier this month the state's new prison czar, Tom Clements, was named in a lawsuit that challenges the Department of Corrections (DOC) handling of the controversial indeterminate sentence.

Case No. 2011CV163 was filed by the petitioner in the 11th Judicial District under Judge David Thorson and is seeking declaratory judgements on 20 separate rules of law.

According to the petitioner, a declaratory judgement is different than most lawsuits that ask for the award of damages, "this case only seeks judgement on pure analysis of the law or circumstances of conviction that can then be used to define possible future legal actions, there are no damages awarded in this type of case," The suit attacks DOC interpretation and implementation of the state's 1998 Lifetime Supervision Act which authorizes the use of indeterminate sentences to compel inmates to participate in rehabilitation treatment. In the 13 years since its creation less than 70 inmates have been released while over 1,600 continue to languish in prison indefinitely despite having participated fully in treatment. Many of these inmates have nonviolent offenses and some have victimless crimes, yet they can and are being held for decades.

In court documents obtained by the Wire, the petitioner makes the following arguments: 1. That the way the state (DOC) has implemented the indeterminate sentence makes it similar to a lifetime civil commitment. The petitioner cites a 1980 ruling in the 9th Circuit Court, Ohlinger v. Watson, "...indeterminate sentences (for sex offenders) in lieu of maximum criminal penalty...makes the sentence analogous to civil commitment " The petitioner then argues that according to CRS 17-2-209 which governs civil commitments, "When an inmate has met all of the requirements to be eligible for parole, but the board has reason to believe that the offender may have a mental illness...
the board shall initiate civil proceedings.'' Currently the state denies parole and continues indefinite incarceration.

The petitioner argues there is a three tiered standard of proof for civil commitment explained in U.S. v. Comstock (2010), and that all three criteria must be met to indefinitely incarcerate any sex offender. The court explains: "The federal statute...allows the civil commitment...if that individual (1) has previously "engaged or attempted to engage in sexually violent conduct or child molestation' (2) currently 'suffers from serious mental illness, abnormality, or disorder , and (3) has a result of that condition is 'sexually dangerous to others, in that he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.''

According to the petitioner, because there is such a substantial liberty interest and expanse involved in civil commitment, the state places the bar very high there is no such bar for the indeterminate sentence.

2. Next, the petitioner argues that since the indeterminate sentence is analogous to a civil commitment there are standards of due process being ignored by DOC. Again citing Comstock, "The statute provides that the prisoner 'shall be represented by counsel' and shall have 'an opportunity' at the hearing to testify, to present evidence, to subpoena witnesses...and to confront and cross-examine the (govt.) witnesses.''  This process is then repeated every six months until the inmate is released.

Currently, the only remedy for release for those with indeterminate sentences is to petition the parole board. During a parole hearing legal representation is not allowed and the inmate may not question the views or assessment of the mental health team that is present during the hearing. Meanwhile the r mental health team provides input to the board, but not while the inmate is present. The inmate never knows the allegations made against him to justify his continued incarceration and the parole board can refuse to see the inmate again for another 1-3 years.

3. Lastly the petitioner argues that DOC is acting without authority when it implements a sentence restricting the legislatively required ability for an inmate to earn good time towards early release from prison and the restrictions of parole.

The legislative declaration in CRS 17-22.5-401 states, "the general assembly hereby declares that if any inmate...does demonstrate positive behavior during incarceration such inmate should be considered for release...prior to the end of the full sentence imposed....Therefore the general assembly...intends to provide standards whereby any inmate can earn a reduction of incarceration time and to provide incentives for inmates to demonstrate positive behavior."

Currently there are no incentives for those serving indeterminate sentences and since these inmates are considered by DOC to be incarcerated for life there is no real application of earned good time as required by law.

The petitioner hopes that the passage of HB1138, which removed the "No Known Cure" therapy from the law, will allow other inmates to challenge their indeterminate sentences, "Since 1138 makes a major change in the law, it should lift time bars restricting other inmates from challenging their illegal sentence."

The next step in the process is for Judge Thorson to decide if the case has enough merit to schedule a hearing and take oral arguments. Depending on the results in Colorado District Court, the petitioner says he is ready to take his case all the way to the federal court system if needed.

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