Domestic violence treatment imposed after a criminal conviction is not “punishment,” the Colorado Supreme Court ruled on Monday, meaning that judges alone can determine whether a crime amounts to domestic violence.

Justice Richard L. Gabriel explained in the June 12 opinion that while state lawmakers have not specified whether a finding of domestic violence is meant to be punitive, there are other, non-punishment reasons for requiring defendants to undergo domestic violence treatment.

The treatment is “designed to reduce the occurrence of future acts of domestic violence and thus promotes deterrence,” Gabriel acknowledged, but “it does not promote the traditional punitive goal of retribution.”

Defense attorneys sharply criticized the idea that mandatory treatment, costing defendants hundreds or thousands of dollars, does not function as punishment.

“People don’t perceive that as ‘you’ve trying to rehabilitate me. You’re trying to do this wonderful favor,'” said Jeffrey S. Gard. “I know a lot of people who, at the end of 36 weeks of domestic violence counseling, are broken, pissed off and do not feel that he or she should have had to do that.”

“The ruling doesn’t surprise me,” added Tristan Gorman of the Colorado Criminal Defense Bar, “but it is surprising how easy it is for people sitting on the bench to say this isn’t punishment because they have no idea what it’s like for an indigent defendant.”

The justices took up the issue in order to examine whether Colorado’s process of letting judges label a crime “domestic violence” complies with U.S. Supreme Court precedent. Specifically, the nation’s highest court has held that evidence used to increase a penalty above the legal maximum requires a jury to make findings beyond a reasonable doubt.

Courts have previously concluded that certain consequences of criminal convictions are not punishment. For example, the requirement for sex offenders to register, while onerous and stigmatizing, is not recognized as punishment.

In the case of Trevor A. Pellegrin, an El Paso County jury convicted him of stalking and harassment after he posted a nude photo of his former partner on craigslist with the location of her home, also telling readers to text or call the woman’s phone number for a “free good time.” The victim received dozens of vulgar texts from strangers as a result, which included photos of genitals, and she temporarily moved out of her apartment.

Pellegrin received a jail sentence plus probation. The trial judge, finding the offenses amounted to domestic violence, also ordered Pellegrin to complete treatment – which, under Colorado law, is “in addition to” the sentence.

The state’s Court of Appeals upheld Pellegrin’s convictions, labeling the treatment as a “condition,” rather than an added punishment.

On appeal to the Supreme Court, the government argued the treatment requirement is meant to “better the defendant and protect society,” so there is no need for juries to weigh in. Pellegrin countered that a domestic violence finding carries serious consequences, including a prohibition on firearm possession.

“The effects are so punitive that a jury trial right applies,” argued Deputy State Public Defender Emily Hessler.

Gabriel, in the Supreme Court’s opinion, indicated that domestic violence treatment is not a “historic form of punishment,” and is instead connected to the “alternative purpose” of rehabilitation. 

“(T)o be sure, some burden to a defendant results from the imposition of domestic violence treatment,” he wrote, alluding to the cost of paying for treatment. But “we cannot say that any such burden is excessive in relation to its rehabilitative purpose.”

Gard, the defense attorney, called it a “no brainer” that juries should determine whether a crime is domestic violence, especially because a conviction imposes consequences for a person’s Second Amendment rights.

“A judge always makes the finding of domestic violence,” he said. “I do think juries would take a more somber look, a longer look, at ‘what is domestic violence? And does this apply to that definition?'”

The Supreme Court also ruled that harassment is not a lesser offense of stalking. Therefore, Pellegrin’s separate convictions did not merge together. Justice Monica M. Márquez wrote separately to say that while she agreed with that outcome, she had concerns about the logic employed in the majority opinion.

The case is Pellegrin v. People.