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Colorado deserves real progress on sentencing reform

Colorado’s criminal sentencing laws are outdated and ineffective. A pervasive lack of certainty and transparency exists regarding the amount of prison time a person will serve when sentenced by a judge.  This uncertainty is unfair to everyone – victim, accused, and community. For years, Colorado has trailed other states in the successful rehabilitation of offenders coming out of state prison. Roughly half of all offenders released from state prison return to prison within three years. In fact, our recidivism rate is among the 10 worst in the country.

Recently, demands for criminal sentencing reform have been front-and-center in Colorado. Consider two cases that have captured widespread media attention.

First, the case of Rogel Aguilera-Mederos, the truck driver who recklessly drove and then crashed his truck into traffic on I-70, killing four people and injuring others. While the court was actively moving to adjust the original sentence imposed based on the mandatory consecutive sentencing laws, Gov. Jared Polis commuted the sentence and lowered it to 10 years in state prison.

That same week, Kenneth Lee was arrested and charged with sexual assault on a child and first-degree burglary. Many questioned the timing of his prior release from state prison. Just seven years ago, a judge sentenced Lee to 23 years in prison for kidnapping and 6 years to life for sexual assault on another child.

Putting aside one’s view of these outcomes, we must recognize these two cases reflect fundamental issues in Colorado’s sentencing laws, and their inherent impact on public safety and community trust.

Thankfully, Colorado is addressing sentencing reform in a comprehensive, bipartisan manner with the input of numerous stakeholders: prosecutors, defense attorneys, law enforcement, probation officers, mental health professionals, prior offenders, victims and legislators from both parties, among others. It is overdue.

Colorado has not systematically reviewed its sentencing laws since 1985. Since then, our sentencing statutes have become inconsistent, difficult to understand and misaligned. In June 2020, Gov. Polis directed a comprehensive review of our sentencing laws to ensure that our sentencing scheme is rational, just, equitable, and consistent. That work is underway.

We serve as co-chairs of the Sentencing Reform Task Force which, along with the Colorado Commission on Criminal and Juvenile Justice, is engaging in data-driven analysis and constructive efforts to improve our sentencing laws. The task force already has conducted a thorough examination of Colorado’s misdemeanor statutes, reviewing approximately 1,000 criminal offenses and conducting a
comparative state-by-state review of misdemeanor sentencing ranges, which revealed that Colorado’s misdemeanor sentencing range was high compared with nearly every other state.

That work led to the Task Force helping to produce Senate Bill 21-271, which the Legislature passed last session. This bill, which goes into effect this March, overhauled Colorado’s misdemeanor sentencing laws.  With overwhelming and bipartisan support, SB 271 adjusts the sentencing ranges for misdemeanors, eliminates redundant offenses, and reclassifies some offenses.  To build more certainty into the system, SB 271 also requires all county jails to utilize a standard, consistent measure for determining time served, and eliminate the inconsistencies that varied by county.

There is much more work to do. The Task Force is examining felony sentencing, the length and purpose of probation/parole, and the amount of time offenders actually serve. Our work includes evaluating laws that produced the outcomes in the Aguilera-Mederos and Lee cases. Although Task Force members represent many different aspects of the justice system, we all recognize that successful,
lasting change comes from collaborative, united efforts to improve our justice system.

Sentencing reform requires us to move forward – not backward – and that can be a difficult process. Those who argue to protect the status quo or push for the failed practices of yesteryear are failing public safety, as reflected by our unacceptable rate of recidivism. We invite those engaged in finger-pointing to join our efforts, rather than just using egregious cases to facilitate their own political ambitions – while allowing Colorado to fail. Justice demands better.

Michael Dougherty is the district attorney for the 20th Judicial District (Boulder County). Rick Kornfeld is a criminal defense attorney in private practice in Denver, and a Member of the Colorado Commission on Criminal and Juvenile Justice.

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