The federal appeals court based in Denver ruled on Monday that a defendant who is serving a potential life sentence for crimes he committed as a 15 year old cannot pursue a constitutional challenge now to any future decision about his parole eligibility.

The U.S. Court of Appeals for the 10th Circuit reached its decision after an unusual detour in which it asked the Colorado Supreme Court to interpret the state’s Sex Offender Lifetime Supervision Act, or SOLSA. The 1998 law imposes indefinite prison sentences for certain felony sex offenses. It also charges officials with considering a person’s suitability for parole based on their progress in treatment, their threat to the community and their likelihood of reoffending. 

The problem, argued Omar Ricardo Godinez, lies in the treatment of juvenile defendants who are sentenced as adults under SOLSA. The U.S. Supreme Court held in Graham v. Florida that juveniles must have a “meaningful opportunity” to obtain release based on their rehabilitation and maturity. Yet, “rehabilitation” and “maturity” are not specifically listed as factors in parole decisions for sex offenders.

“This leaves Godinez with nothing more than a hope and prayer for parole, rather than the meaningful opportunity,” argued his lawyer, Jonathan D. Reppucci.

Godinez is currently serving 32 years to life for his role in the kidnapping and rape of two victims in Arapahoe County when he was a minor. Convicted in 2013, he will become parole eligible at age 38.

After unsuccessfully challenging his convictions and sentence in Colorado’s state courts, Godinez filed a federal “habeas corpus” petition alleging SOLSA does not require parole officials to evaluate his maturity and rehabilitation when deciding whether to grant his release. A trial judge sided against Godinez, but a panel of 10th Circuit judges suggested Godinez may have a point.

Although the concept of rehabilitation might be embedded within the release criteria for sex offenders, “where’s the maturity aspect in SOLSA?” asked Judge Carolyn B. McHugh during oral arguments. “Which means, when they committed the crime they weren’t fully formed in the frontal lobe. Where do you see that?”

The 10th Circuit invoked a little-used procedural mechanism and invited the Colorado Supreme Court to weigh in. Does SOLSA require, permit or prohibit parole officials from considering the factors the U.S. Supreme Court has deemed necessary to comply with the Eighth Amendment’s prohibition on cruel and unusual punishment, the circuit judges asked. In March, the justices gave their answer.

The three release criteria under SOLSA — progress in treatment, threat to the community, likelihood of reoffending — do account for a defendant’s rehabilitation, the court concluded. However, because maturity encompasses characteristics such as improved judgment, self-control, and a “stronger sense of responsibility,” SOLSA permits, but does not require, parole officials to consider that factor.

Returning to the 10th Circuit, the state argued the Colorado Supreme Court’s answer illustrated why Godinez’s petition should be rejected. Specifically, he did not yet know whether his parole decision would account for the required maturity factor or not.

“Assuming Godinez enters and completes sex offender treatment, Colorado law imbues the parole board with the discretion to give Godinez what he seeks — some meaningful opportunity for release,” wrote the Colorado Attorney General’s Office. “Any speculation that the parole board will exercise its discretion in such a way as to deprive him of that opportunity is too remote and uncertain to justify present adjudication.”

Godinez countered that if parole officials are merely permitted to consider his maturity, they are equally permitted not to consider it.

But the 10th Circuit agreed with the state.

“Our decision does not preclude Godinez from filing at a later date a (second) claim if the parole board, in defiance of the Supreme Court’s ruling in Graham, refuses to consider his maturity and rehabilitation,” wrote Judge Timothy M. Tymkovich in the Aug. 26 opinion. “In this case, Godinez’s claim relies on conjecture about the parole board’s future decision. As of now, no constitutional violation warranting habeas relief has occurred.”

The case is Godinez v. Williams.