CCDI Paving the Way for Criminal Justice Reform in Colorado

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1 2013 was a Legislative Overview 2 Highlights from the 2013 legislative session, including major reforms in drug sentencing and pretrial justice CCJJ Bills 4 List of CCJJ recommendations passed into law in 2013 The Colorado Criminal Defense Institute is a non- profit organization operating in conjunction with the Colorado Criminal Defense Bar for the purpose of promoting justice and best practices in all matters relating to the Colorado criminal justice system. The organization concentrates on development of policy that is based on evidence and research while respecting the constitutional rights and dignity of all persons. CCDI Paving the Way for Criminal Justice Reform in Colorado 2013 was a banner year for criminal justice reform that saw the enactment of major policy changes at the state level. Liberty Justice Equality CCDB FOUNDATION After years of laying the groundwork and building a diverse and bi- partisan coalition in support of criminal justice reform efforts, a number of major policy initiatives came to fruition in The collaborative approach between Democrats and Republicans and across the spectrum of the criminal justice system including prosecutors, defense attorneys, law enforcement, victims groups, judges and other stakeholders has made criminal justice reform one of the most successful policy areas in the state legislature. In a year that could easily be categorized as one of the most polarizing, challenging legislative sessions in recent history, criminal justice reform issues rose above the partisan divide and in many instances were met with little, if no opposition. Many of the efforts passed not only by large majorities, but with nearly unanimous support. CCDI led the reform movement on many of these critical issues, both leading up to and throughout the legislative session. As an active participant on a number of subcommittees of the Commission on Criminal and Juvenile Justice (CCJJ), CCDI Policy Director Maureen Cain provided the necessary research and brought forward evidence- based policy recommendations that ultimately led to many of the reforms enacted this session.

2 Drug Sentencing Reform For decades in Colorado, we pursued War on Drugs policies that overused incarceration for drug users and underinvested in the treatment of addiction. These failed practices yielded high rates of recidivism and compromised public safety by failing to address the underlying problems of addiction. While certain law enforcement, district attorneys, defense attorneys and numerous other stakeholders were in agreement that the current approach to drug offenders needed to change to become more effective, there were often divergent opinions about how to achieve meaningful reform. In 2009, the Commission on Criminal and Juvenile Justice created the Drug Policy Task Force (DPTF) to review statewide drug policies and make recommendations regarding the drug laws in Colorado. As a key stakeholder, CCDI was appointed to the DPTF to address the problems of drug abuse and addiction in the criminal justice system. A multi- step approach was implemented to prioritize treatment over incarceration and to re- invest any cost savings into effective treatment for offenders on probation, on parole, in community corrections, or in county jails. Over the past several years, CCDI has played a leadership role in bringing to light the much- needed research and finding common ground to reforming Colorado s drug sentencing laws. As part of the multi- year effort, CCDI What Works in Colorado Beyond Bars: A Project of Brave New Foundation Produced in Partnership with the and Colorado Criminal Justice Reform Coalition CLICK TO PLAY VIDEO Changing Colorado's drug sentencing laws to encourage treatment over incarceration for low- level users is an enlightened way to take on the destructive force of addiction. We hope the Colorado legislature passes a bill that would broadly revise the state's drug sentencing structure. But it isn't just the content of this bill that is notable, so too how it was created. This was not a piece of legislation crafted by an interest group behind closed doors and delivered to a lawmaker who had only a passing knowledge of its content. It was the product of what has turned out to be years of discussion and negotiation among experts in criminal law and drug abuse. Defense lawyers, prosecutors, cops and counselors all were represented on a Colorado Commission on Criminal & Juvenile Justice committee that hashed out the complex bill. In an era when some politicians think the only way they can get the job done is by shutting out the other side and pushing through proposals that cater to an extreme position and there's no shortage of examples of that at the statehouse this session this was a refreshing example of how parties with different perspectives can work together. Denver Post Editorial on SB13-250, 4/22/13 2

3 (Continued) worked diligently to bring consensus among the key stakeholders as to how to reform the current sentencing laws. The result was a comprehensive effort to implement a different drug- sentencing scheme and to use our resources more efficiently to the benefit of all Coloradoans and their families. Recommendations by the DPTF were passed by the full CCJJ and drafted into legislation introduced in the 2013 session. SB13-250, with bi- partisan sponsorship, created a separate sentencing grid for drug offenses. The sentencing distinction between serious drug dealers and drug users is much more defined. The new scheme emphasizes treatment over incarceration for the drug abuser and addict. Specifically, SB13-250: Expands opportunities for the drug offender to avoid a felony conviction. Current law allows drug offenders to be eligible for a deferred judgment, which enables an offender to avoid any criminal conviction if the offender successfully completes a probationary period. The new law allows a repeat drug offender who possesses a small amount of Schedule I or II drugs to avoid a drug felony conviction and earn a misdemeanor disposition after the successful completion of probation or community corrections, including any drug treatment ordered. Courts are also required to consider all treatment options before incarceration and exhaust all treatment options before a sentence to incarceration. Court may continue defendant on deferred judgment over objection of the prosecutor if continuation would meet the goals of sentencing in any case, i.e. rehabilitation and reintegration. Decreases sentencing ranges for all drug offenses and time periods of parole. Expands funding for treatment by requiring that savings in corrections be reallocated to expand treatment and recovery services to people involved in the criminal justice system. Requires comprehensive data collection and a report to the General Assembly by December 31, 2016 on the impact of SB in order to ensure that the changes are working to improve outcomes in our criminal justice system. With a vote of 99 to 1, SB passed the state legislature and was signed into law by the Governor in May SB Bill Signing Pretrial Justice Reform Over the past several years, CCDI has played a leadership role in the effort to promote pretrial justice reform in Colorado. By cultivating a strong and diverse coalition that includes sheriffs, chiefs of police, district attorneys, the state public defender, victims groups and county commissioners, renewed attention has been brought to the need for front- end reform. CCDI has also helped foster relationships with key members of the bail industry, which proved invaluable in the passing comprehensive bond reform this session. At the end of 2011, CCJJ created a Bail Subcommittee to conduct a comprehensive review and analysis of the Colorado bail system, with the goal of developing policy recommendations that would be drafted into legislation for the 2013 session. The subcommittee took a critical look at current practices, strengths and weaknesses of the system, evidence- based practices and emerging best practices locally and nationally. CCDI coordinated and presented the data collection pieces that were deemed essential to evaluating the current system. As a result of this effort, the Bail Subcommittee proposed four major recommendations that were approved by the full CCJJ and drafted into legislation for the 2013 session. 3

4 HB , Best Practices in Bond Setting, places greater emphasis on evidence- based and individualized decision- making during the bond setting process and discourages use of monetary conditions for bond. The major components of the bill are: 4 Implement evidence- based decision making practices and standardize bail release decision- making guidelines. Colorado has developed the Colorado Pretrial Assessment Tool (CPAT), a risk assessment instrument that identifies the relative risk of pretrial defendants. The ten Colorado Judicial Districts with existing pretrial agencies are encouraged to use a standardized risk assessment instrument rather than a traditional bond schedule. Discourage the use of financial bonds for pretrial detainees and reduce the use of bonding schedules. Expand and improve pretrial approaches and opportunities in Colorado by encouraging individual counties to consider greater use of pretrial services programs to examine the individual circumstances of a defendant and assess risk. It also recommends using a standardized risk assessment tool and allowing the court to craft individualized release conditions to address the public safety and appearance concerns for each defendant. Standardize jail collection data across all Colorado Jurisdictions. There is currently a lack of valuable information on Colorado s jail population and a standardized data collection instrument is needed in all of Colorado s jurisdictions and jails in order to better evaluate the state s pretrial population. HB passed 98 to 1 and was signed into law by the Governor in May Other CCJJ Bills Several other meaningful reforms came out of the CCJJ this past session: Adult Pretrial Diversion HB : Creates pre- filing diversion programs for adults statewide and creates a state grant program that district attorneys can apply to for funding to create or expand an adult pre- filing diversion program. The district attorney is required to develop eligibility guidelines and may enter into a diversion agreement with a defendant for up to two years without filing a criminal case against the defendant. Consolidate Theft Statute with New Penalties HB : A comprehensive overhaul of the current theft statute amends the criminal penalties for theft and repeals theft of rental property and theft by receiving as separate statutes and incorporates these crimes into the theft statue. It also changes the penalties for various offense levels Commission on Criminal and Juvenile Justice Bills SB : Concerning Changes to Sentencing for Persons Convicted of Drug Crimes. Sponsored by Senators Steadman (D), King (R) and Rep. Claire Levy (D). Passed HB : Best Practices in Bond Setting. Sponsored by Senator Ulibarri (D), and Rep. Levy (D). Passed HB : Concerning Creation of an Adult Diversion Program. Sponsored by Rep. Levy (D) and Senator Steadman (D). Passed HB : Concerning Criminal Theft. Sponsored by Rep. Pabon (D) and Senator King (R). Passed

5 Other Significant Legislative Accomplishments CCDI played an integral role in a number of other significant criminal justice reform efforts in the 2013 session. Among those were: Mandatory Sentencing for Violations of Bail Bond Conditions HB : Currently, someone found to be in violation of their bond is subject to up to a year in prison for a felony charge and six months in jail for a misdemeanor and not eligible for probation or suspended sentences. This bill limits mandatory sentencing to those who commit a new crime while on bond, fail to appear with the intent to avoid prosecution or sentencing, or are on bond for a sex offense under the lifetime sex offender statute. Right to Counsel in Plea Negotiations HB : Makes Colorado law consistent with recent U.S. Supreme Court decisions regarding the right to legal counsel during critical stages of a case, including plea negotiations. It repeals the statute that requires an indigent person charged with a misdemeanor, petty offense or motor vehicle or traffic offense to meet with the prosecuting attorney before legal counsel is appointed. This bill is significant in providing counsel not only for plea negotiations but also for bond determinations. Collateral Consequences SB13-123: Improves re- entry opportunities for persons involved in the criminal justice system. The bill allows petty offenses and municipal violations to be eligible for sealing through a court process and requires the court to provide a written advisement of sealing available following a conviction for a petty or municipal offense. The bill also allows a judge to grant relief from a collateral consequence at sentencing if the defendant has met other eligibility requirements. Criminal Omnibus SB : Based on a recommendation by the CCJJ Minority Over- representation Subcommittee (MOR), this bill mandates a Minority Impact Statement to be prepared for all criminal justice legislation in conjunction with the fiscal note to determine whether it will have an adverse impact on the minority population. Sex Offender Sentencing Small but significant progress was also seen this year in the area of sex offender sentencing. Currently in Colorado, the Sex Offender Management Board (SOMB) oversees the supervision and treatment of sex offenders. Unfortunately, the SOMB employs standards and guidelines that are outdated, not evidence- based or best practices. CCDI has been relentless in working with the SOMB to revise their guidelines to align with evidence- based standards. In 2012, the Colorado Joint Budget Committee allocated $100,000 to hire an independent evaluator to assess the prison- based sex offender program, SOTMP. This year, an additional $100,000 was appropriated to evaluate the Sex Offender Management Board standards and guidelines to determine if they are consistent with what the research demonstrates are best practices. Prompted by a heated legislative debate on Jessica s Law, the CCJJ will reconvene a subcommittee on sex offender sentencing. This past session saw a failed attempt to pass legislation similar to the Jessica Lunsford Act, or Jessica s Law, a Florida law enacted in response to the tragic abduction, sexual assault and murder of nine- year old Jessica Lunsford. Defense attorneys, prosecutors and victims group came together in agreement that the measure was not necessary in Colorado, asserting that our laws already go beyond what Jessica s Law mandates and would interfere with the state s complicated sex offender sentencing laws. The Governor, Senate President and Speaker of the House have asked the CCJJ to assess Colorado s current criminal laws applicable to sex offenders to determine whether the passage of provisions in Jessica s Law would improve these laws. They specifically have asked the CCJJ to assess the crimes and penalties applicable to sex offenders, the 5

6 (Continued) sentencing guidelines and requirements applicable to sex offenders and the Colorado Lifetime Supervision Act and its goals. A report on recommendations regarding changes to the sex offender laws in Colorado is due to the Governor s office by January 1, Conclusion There is much more work to be done to achieve the goal of a more effective and redemptive criminal justice system, but Policy Director Maureen Cain is enthusiastic and proud of the accomplishments this year. For more information about these legislative achievements and future plans for justice reform in Colorado, please contact: Maureen Cain With many thanks to our funders, the Colorado Criminal Defense Bar and the Public Welfare Foundation. 6

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