Colorado is not violating the U.S. Constitution by keeping a man locked up for a sex offense he committed more than 37 years ago, the federal appeals court based in Denver concluded in a 2-1 decision on Wednesday.

There was sharp disagreement among the three-judge panel who reviewed Bruce E. Wimberly’s case about whether he is currently serving a criminal sentence of indefinite length or whether he is “committed” to prison — similar to how a person may be civilly committed for mental health reasons. If the latter were true, Colorado has failed to provide the same level of legal protections to Wimberly as it has to those subject to mental health commitments.

Judge Robert E. Bacharach, in the majority opinion for the U.S. Court of Appeals for the 10th Circuit, pushed back on the idea that Wimberly’s sentence was anything but that: a criminal sentence for a sex offense.

“Mr. Wimberly obtained all of the required safeguards in 1984 (when the state trial court ordered his indeterminate confinement). With those safeguards, Mr. Wimberly might have spent just one day in confinement. Or he might need to spend the rest of his life there,” Bacharach wrote. “Either way his status wouldn’t change, so the Constitution didn’t require new procedural safeguards while Mr. Wimberly continued to serve his indeterminate term.”

But in an unusual move, each judge authored their own opinion. Senior Judge David M. Ebel agreed with Bacharach’s conclusion, but worried about how the state is applying the requirement that Wimberly must pose a continuing danger to justify his continued detention.

“Logic suggests that if that factor changes, the basis for the indeterminate sentence no longer exists,” Ebel wrote. “[I]t seems to me that there should be a process available to Mr. Wimberly and those like him that would periodically provide him with the opportunity to challenge whether he remains a threat to the public.”

The state had suggested to the appeals panel that Wimberly did not, in fact, have that opportunity before Colorado’s parole board.

In her dissent, Judge Carolyn B. McHugh believed Wimberly had made a case that Colorado is violating his constitutional rights through his continued detention. The state has not allowed a judge to review his confinement every six months and evaluated whether he has a mental health disorder that would make him a danger to himself or others, as is the right of people serving other involuntary commitments.

“I therefore agree with Mr. Wimberly that his present commitment violates the Fourteenth Amendment’s Equal Protection Clause, because Colorado is denying him the procedural protections it affords to civil committees in its custody,” she wrote.

Wimberly pleaded guilty to first-degree sexual assault and other offenses in 1984. For the other offenses, he received a 26-year prison sentence. But in considering the punishment for his sex assault, the state trial court judge could have sentenced Wimberly to a prison term of up to 24 years under the criminal sentencing laws or an indefinite sentence up to life imprisonment through the Colorado Sex Offenders Act. The judge chose the latter option.

Starting in 1994, the Colorado Board of Parole has blocked his requests for release and Wimberly remains in prison. Wimberly filed suit in federal court 35 years after he entered prison, arguing he should have had a release hearing at the 24-year mark in his sentence. 

He pointed to the text of the CSOA (the precursor to the current Sex Offender Lifetime Supervision Act), which stated that courts may, “in lieu of the sentence otherwise provided by law, commit a sex offender” to the Department of Corrections for an indeterminate term ranging from one day to life.

Before the commitment, however, a defendant would undergo examination by two psychiatrists, who would determine whether he was a threat to the public or “mentally deficient.” The parole board is required to review the commitment annually, and may choose to release the defendant on parole or transfer him to another facility.

To Wimberly, the problem was straightforward: he had served both the 26-year sentence for his original crime, as well as the 24 maximum years the judge could have given him for the sex assault. He is now undergoing a commitment, but without opportunity for a judge to periodically review his detention, as is the case for people committed for mental illness.

“I sit here and rot, wandering [sic] what do I have to due [sic] to get my freedom or at least my chance at it,” Wimberly wrote to the 10th Circuit. “I believe that I can still become a law-abiding citizen and a productive member of society if I can just get my foot out the door. But at 65 years of age, I see my chances slowly fading away.”

But the 10th Circuit’s majority categorically disagreed that Wimberly had finished his sentence and was now undergoing a commitment, reminding him that he was — and always has been — subject to potential life in prison.

“[T]he name doesn’t matter. What matters is that in 1984, the trial court provided all of the required procedural safeguards to Mr. Wimberly and ordered his confinement for the rest of his life unless he were to obtain parole,” Bacharach wrote.

McHugh disagreed that sentencing and commitment were interchangeable terms. To her, the sex offender law provided for either a fixed sentence or an indeterminate commitment. Because a separate process involving a psychiatric evaluation took place after Wimberly’s conviction, the result was not a regular criminal sentence.

“The U.S. Supreme Court has instructed that no rational basis exists to treat individuals subject to criminal commitment in lieu of a criminal sentence differently from individuals subject to civil commitment, once the maximum sentence otherwise authorized for their underlying crimes has expired,” McHugh wrote. “Colorado is denying Mr. Wimberly the procedural protections it affords to civil committees in its custody, notwithstanding that the maximum sentence authorized for his underlying offenses expired over a decade ago.”

In the absence of judicial review of his confinement and evidence of his continued dangerousness, she concluded Colorado is violating the Equal Protection Clause of the Constitution.

Despite the majority’s determination that Wimberly’s detention was constitutional, both Bacharach and Ebel raised the possibility that Wimberly could have a legitimate claim in state court about whether the parole board is appropriately evaluating the danger he poses to the public in their reviews of his case. The Colorado Attorney General’s Office admitted during oral arguments that they “don’t have a record” of what the parole board considered in its decisions.

Laurie Rose Kepros, the director of sexual litigation for the Office of the State Public Defender, said Coloradans should be concerned about someone in Wimberly’s position serving a life sentence when there was nothing to suggest Wimberly was sexually reoffending during his confinement.

“Risk is dynamic and it changes with time — as has our understanding of risk,” she said. “Based on contemporary research, however, we now understand that sexual recidivism risk reduces with age.”

Kepros added that even if Wimberly were to take the panel’s advice and challenge the parole board in state court, he would not be entitled to court-appointed legal counsel in his effort.

Colorado’s sex offender sentencing scheme has been the subject of a flurry of court challenges within the past year. In June, the state Supreme Court deemed unconstitutional the requirement for juveniles who committed more than one sex crime to register for life as sex offenders. The Court also upheld a common practice of sentencing people to prison plus probation when a sex offense is involved, even though the justices previously determined such combination sentences were illegal generally.

“The sentencing of sex offenders in Colorado is uniquely structured in order to reflect the complexity of these terrible crimes and the need for long-term treatment and supervision of sex offenders,” Jessica Dotter, sex assault resource prosecutor with the Colorado District Attorneys’ Council, said at the time.

Previously, the 10th Circuit in August 2020 concluded the state’s publicly-searchable sex offender registry was not cruel and unusual punishment that violated the Eighth Amendment. Registration is intended to protect the community and not serve as punishment, the appellate panel decided, and so any “collateral consequence” a registrant experiences in finding employment or housing is beyond the reach of the courts.

According to a U.S. Department of Justice analysis, studies attempting to estimate re-offense rates for sex offenders showed results ranging from 5% within three years of prison release to 24% after 15 years. Advocates for less punitive sex offense laws have drawn attention to the problem of blanket punishments and restrictions for individuals with varying levels of risk.

“This creation of ‘perpetual criminals’, born of the demand to protect the community, concentrates the attention of institutions and the community on sex offenders at the expense of interventions for supporting the victims, of differentiated treatment for individual sex offenders, and of cultural improvement in the community towards opposing gender stereotypes and prejudices in which many sex crimes are rooted,” Italian researchers wrote in 2020.

The case is Wimberly v. Williams.