Petition For The Abolition of Colorado’s Mandatory Criminal Sentencing Laws

We all know about the case of Rogel Aguilera Mederos the trucker whose brakes failed and caused a serious crash that killed four people and injured several others.  Mederos was convicted of several felony counts and sentenced under the mandatory sentencing for violent crime law to 110 years in prison.

The case and the sentences put Colorado’s sentencing laws in the national spotlight and over 5 million people have signed a petition to have the case commuted by Governor Jared Polis.  Kim Kardashian contacted the Governor and demanded that Colorado abolish its mandatory sentencing laws.

A court date was set in which the court was to hear arguments for lowering the sentence.  However, it was never revealed how and under what authority could they disregard the mandatory sentencing law to lower Moderos’ sentence.  In fact, at the time of sentencing, the judge stated that he had no option in the matter and if he did, this would not be his sentence.

On December 30, 2021, some two weeks before the court hearing, Governor Polis intervened and commuted Moderos’ sentence from 110 years in prison to just 10 years.  The Governor stated that this was justice in this case.  He went on to say that the current mandatory sentencing law was the fault of the former governor and legislators.  This commute was very controversial and violated virtually every tenet established for the commute application process.  For example: There is a rule that an applicant for commute must have served at least ten years in prison before they can apply for commute.  They must have exhausted all legal remedies and cannot have any actions pending in court.  Then the application is reviewed by the Governor’s Advisory Board who can deny the application or refer it to the governor for action.  This process can easily take years to complete, and usually does.

It is highly unlikely that the governor took it upon himself to willy-nilly commute Moderos’ 110 year sentence to just 10 years.  But more likely an orchestrated political move to spare the courts and legislators from having to answer to the millions who were calling for Colorado’s mandatory sentencing laws to be abolished.  And to the thousands of Colorado inmates who are serving ridiculously long sentences due to the mandatory sentencing laws.  This is not the first time that Colorado has used such an end around move to avoid having to answer for its draconian sentencing laws.  This is eerily similar to the case of Lisl Auman.

In Auman’s case, she was handcuffed in the back seat of a police car when her alleged co-conspirator shot and killed a police officer.  Auman was convicted of felony murder, a class 1 felony that carried a mandatory sentence of life without parole (LWOP).  As a young woman Lisl Auman was unceremoniously delivered to the Colorado Women’s Facility in Canon City to serve her life sentence.

This was another case that drew national attention and a large contingent of people, including several prominent movie stars and celebrities who organized, demanding that Colorado abolish its felony murder statute.  Instead, the Colorado Supreme Court overturned her conviction based on a faulty jury instruction.  A plea bargain was brokered, she was set free and the calls to abolish the felony murder statute faded away.  No doubt, the governor and the legislators are now counting on the demands to abolish the mandatory sentencing laws to quietly fade away as happened in the Lisl Auman case.  It is notable that several years later the state legislature did change felony murder from a class 1 felony to a class 2 felony and it no longer carries the LWOP sentence.  However, they did not make this change in law retroactive and there are still many Colorado inmates serving mandatory LWOP sentences for felony murder.  Had it not been for public outcry Lisl would still be sitting in the Colorado Women’s Prison.

There is no way of telling how many thousands of people have spent how many millions of years in the state’s burgeoning prison system due to mandatory sentencing laws.  But make no mistake, Colorado’s state government loves its prison system.  There is a powerful lobby of victims, victim’s advocates, D.A.’s and prosecutors constantly reminding legislators that victims of crime are victims forever.  By their way of thinking it does appear that the only way justice can be served is if the offender is locked up forever.  With all due reverence to the pain, loss and suffering of crime victims, it may be that they should not be the arbiters of justice because they cannot possibly be objective.

Governors and lawmakers are politicians.  They won’t do what is right because it’s the right thing to do.  Instead they are swayed by the demands of those with the loudest voice.  Over the last 50 years the legislators have cunningly and creatively enacted several mandatory sentencing laws.  They have overhauled and adjusted them along with other statutes to ensure that many more people will go to prison for many more years.  In the name of “public safety” they have built more prisons and locked away more people for longer times.  It’s an easy sell to the public.  Everyone wants to be safer.  However, it cannot be said that more prisons and more prisoners have ever made the public any safer.  In fact, the opposite is true.  Furthermore, more prisons and longer sentences do not provide a deterrence to crime.

There was a time in Colorado when a life sentence carried parole eligibility after 10 years. In the 1970’s the legislature decided that should be doubled and changed parole eligibility on a life sentence to 20 years.  Soon afterward they doubled it again to 40 years.  And soon after that changed a life sentence to be life without parole.  When LWOP became the law in Colorado a statistic was revealed that the state would need a new prison the size of Limon Correctional Facility every 10 years to house lifers.  (LCF has a capacity of 958 inmates).

The mandatory sentence for violent crime law is a statute that requires all sentences for crimes listed as violent crimes to be served consecutively.  This law is directly responsible for turning an otherwise just sentence of 8, 12, or 24 years into a virtual life sentence of 120, 180 or more years as in the case of Rogel Moderos’ 110 years.

State lawmakers have been very crafty at installing sentencing enhancers in the statutes to increase sentences and make parole eligibility requirements more difficult to satisfy.  They have stiffened habitual criminal statutes and enacted indeterminate sentences for sex offenders.  Those most affected by these outrageous and draconian prison sentences, the ones feeling the brunt of these laws are minorities, the poor, the disenfranchise and marginalized communities.

Undoubtedly, the lawmakers know that their families and their lives are not likely to ever be subjected to these punishments.

All of these sentences, LWOP, virtual life, aggravated, mandatory, enhanced, consecutive, and indeterminate sentences have provided the Colorado Department of Corrections with an endless supply of aging and geriatric inmates.  They present an expensive and burdensome challenge.  Not only is the system unsustainable, it is totally unnecessary.

There is a concept called “aging out”. Whereas the vast majority of crimes are committed by people 45 years of age and younger.  Statistically, if the state were to release every prisoner who is beyond 45 years of age, the vast majority would not commit another crime.  This fact is even more profound when the offender has been in prison for 20 years or more.  In the state of Maryland some 200 violent offenders, including murderers and rapists were released after serving 20 or more years in prison.  Less than 1% committed another crime.

Colorado’s lawmakers are well aware of these facts and statistics.  Yet they are unwilling to undo any of the “tough on crime” efforts of the past.  It has been said that they are “addicted to incarceration.”  It has also been said that to look “soft on crime is political suicide.”  Whatever the case, it appears that the only ones getting relief from these life and virtual life sentences are those who can muster a large assembly of powerful people to demand change.

Whereas Colorado’s lawmakers and politicians have spent some 50 years extending prison sentences and expanding its prison empire to the point of unsustainability at the expense of its most vulnerable constituency.  This petition demands that effective change be implemented immediately to abolish all of the state’s mandatory sentencing laws to include, but not limited to:

• Life without parole sentences.
• Mandatory minimum sentences.
• Mandatory sentences for violent offenders.
• Habitual criminal sentences.
• All designated sentence enhancers to include parole eligibility enhancements.
• All indeterminate sentences.

And let these new provisions be retroactive.

Whereas every criminal offense under Colorado law provides its own presumptive sentencing range for that class of crime, let those presumptive sentencing provisions be available to convicted criminal offenders.

Here is what the bill could look like:

A DRAFT FOR AN “ACT OF HUMANITY” IN THE COLORADO CRIMINAL JUSTICE SYSTEM

Many of us are well aware that the United States incarcerates more of its citizens per capita than any other Nation in the World.  And the State of Colorado is no exception to this practice.   In fact, Colorado alone incarcerates more People per capita than any other Nation in the World.

But what most of us are not aware of is that many Americans have been languishing in U.S. Prisons for decades in spite of the fact that they are no threat to public safety.  And the percentage of these people who would reoffend, or commit a crime if released is less than 1%.

Study after study has consistently demonstrated that 99% of people who have served 20+ years in prison, and are 40 years of age or older do not reoffend once released.  And the 1% or less who do, only commit minor offenses.

In an article titled “When Life Is Too Long”, Associated Press writer Michael Virtanen noted a September 2011, University of Stanford study which showed that among 860 murderers paroled in California since 1995, only (5) five returned to prison for new felonies, and none for similar life-term crimes.  And in another article, titled “Rethinking Extreme Sentences”, writers James Forman, Jr. and Sarah Lustbader highlighted a Maryland Court that ordered the release of nearly 200 prisoners who had served sentences of more than 30 years, mostly for homicide and rape, and found that fewer than 1% have committed a crime in the years since release.  Forman, Jr. and Lustbader also noted that, “Social Science data, Religious Teachings, and common sense acknowledge something that our Justice System does not: People change.  Tens of thousands of people serving long sentences have turned their lives around but have no hope for release.”

Can we vaunt the distinction of being a humane and just society when we keep citizens locked-up who are no threat to public safety?  Should we be compelled morally as well as legally to have a Criminal Justice System that determined when it is unethical to keep our citizens incarcerated?

When a person is deemed mentally unfit to answer for a crime, they are held until they are healed.  Should the same humanity be extended to those who may have lost their way in life, and out of character, made a huge mistake?  Or those who were raised in crime ridden, drug infested environments, who had a parent, or two, with substance abuse issues, or were abusive or neglectful?

Moreover, there are many who have been in Prison for decades despite the existence of questionable legal practices and/or representation during their legal proceedings.  As well as others who received long-term sentences, although the sentencing Judge expressed resentment and reluctance for having to pass down punishment they felt did not fit the crime, due to their discretion being bound by mandatory minimums including, and especially, the mandatory minimum of life without the possibility of parole.

And fiscally speaking, in a May 30, 2021, Denver Post article, titled “Addicted to Incarceration”, the Chairman of the Colorado Senate Judiciary Committee, Senator Pete Lee wrote, “Colorado spends over a billion dollars a year on incarceration and managing prison populations ($46,738 per offender, per year), while being more than $8 billion in debt to public schools”, and that, “the odds of someone being released from prison (in Colorado) and returned to their loved ones are no better than a coin flip.”
If we allocated the resources we spend keeping people incarcerated after they have been rehabilitated and pose no threat to public safety, towards prevention programs we could avert thousands of people from a dysfunctional lifestyle of crime and violence, drug abuse, gang affiliation, etc.  And the assistance of those with 20+ years of “lived incarceration experience”, who have turned their lives around would be of inestimable value to their communities.

Citizens of all stripes agree that our Criminal Justice System is in need of meaningful reform.  How much longer should we ignore the moral and fiscal imperative on this issue?  How many more people have to rot away in a prison cell unnecessarily?  And how much longer should we continue to be irresponsible with our tax dollars?

No one benefits from Colorado’s practice of keeping its citizens incarcerated after they have been rehabilitated.  When we hear of such practices in other Nations, we rightfully condemn them as inhumane, unusual, and cruel.  Why then do we turn a blind eye to the violation of our own Constitution’s Eighth Amendment which bans cruel and unusual punishment?  If we are to have a fair and just system of criminal justice, then we must recognize and act decisively to implement reforms that bring about consideration for rehabilitation.  Such an outcome would be mutually beneficial to everyone involved in the goal of being humane and just and strengthening and sustaining the health and well-being of the community and society-at-large, particularly when it comes to those who have exhibited true rehabilitation during their incarceration of two decades or more, and have demonstrated that they are no danger to public safety.  In the words of Governor Jared Polis, “We need to distinguish the differences between who we’re afraid of and who we’re mad at.”

The following is a draft of a Bill proposing an “Act of Humanity” in the Colorado Criminal Justice System:

“THE HUMANITY ACT”: A Bill for Humanity in the Colorado Justice System.

With adherence to Colorado Law, C.R.S. Section 17-1-103(1), which states, (without qualifications on crime or sentence), that:  “The Director of The Department of Corrections is required to provide work and self-improvement opportunities for inmates, and establish an environment that promotes habilitation for successful reentry into society.”

This Bill, the “Humanity Act” would require that, upon serving 20 calendar years of any sentence of incarceration, such person shall be considered for re-entry to society, unless it is demonstrated, or deemed that such person is in any way a danger to society or public safety.

After ample amount of observable time, 20 years or more, an incarcerated person is observed to have been rehabilitated by displaying exemplary behavior for (10) ten years or more, and has completed all required programming, has maintained steady work assignments within the D.O.C., with a minimum of above satisfactory ratings, and has demonstrated a self-reliant/self-sufficient ability to maintain and enhance his or her personal growth, development, and rehabilitation, shall be considered for reentry to society through the parole system.

To be eligible for consideration under the “Humanity Act”, the foregoing criteria must be met to the satisfaction of the Executive Director of the Department of Corrections, or an authorized official in its stead.

Please contact your Congressperson/Representative and request that they Sponsor and/or support the “Humanity Act” within the Colorado Criminal Justice System.

Your involvement and support for this “Act of Humanity” is imperative to the many lives that are needlessly wasting away inside Colorado Prisons.

To contact your State Senator and/or Representative, please call (303) 866-2316 or (303) 866-2904, respectfully.