The Colorado Supreme Court will incorporate an unorthodox twist into its oral argument calendar this week, hearing five cases that all revolve around the same subject: Was the court serious when it said three years ago that judges who do not follow the law lose their authority to order criminal defendants to pay restitution?

In Colorado, as part of sentencing, judges must consider whether defendants owe financial restitution to their victims. If so, prosecutors generally need to provide the requested amount by the time of sentencing or within 91 days of sentencing. Judges must also impose the restitution amount within 91 days of sentencing. If judges need to extend either deadline, they must find extenuating circumstances or good cause.

In a major decision, People v. Weeks, the Supreme Court ruled in November 2021 that judges’ historical process of awarding compensation to crime victims did not comply with Colorado law. The justices noted a lackadaisical approach had taken hold in the trial courts that neglected the clear deadlines and procedural requirements. Consequently, if trial judges fail to follow the law, they lose authority to issue a restitution order.

Justice Carlos A. Samour Jr., who authored Weeks, took the unusual step of including a detailed map of what the restitution process should look like from the prosecutor’s, defendant’s and trial judge’s perspectives, making the Supreme Court’s expectations clear.

And yet, as the Court of Appeals has applied Weeks and determined numerous trial judges exceeded the deadline without finding good cause, the government responded by trying to neutralize the decision.

The Colorado Attorney General’s Office has insisted there are caveats or carveouts that enable trial judges to undermine the Weeks decision while still issuing valid restitution orders. In one appeal, the office took the bold move of urging the same Supreme Court justices who decided Weeks to turn around and declare it bad law.

“Weeks has opened the gates to a flood of defendants seeking windfalls at the expense of innocent victims,” wrote Senior Assistant Attorney General Brock J. Swanson. “Overruling Weeks would do much more good than harm and would restore the heart of the restitution statutes.”

The defendants, meanwhile, have advanced a straightforward point on appeal: What part of Weeks does the government not understand?

“Either this Court’s Weeks opinion means what it says or it doesn’t,” wrote public defender James S. Hardy. “It was correct in 2021. It is correct now.”

An effort to scale back the rule

The five cases before the Supreme Court tackle various aspects of what happens when judges do not follow the process envisioned in state law. For example, is there still a problem if the defendant agrees to a restitution hearing outside the 91-day deadline, but the judge does not find good cause? Should untimely restitution orders be upheld unless there is some other harm to the defendant beyond the trial judge’s non-compliance with the law? And what should happen to problematic restitution orders from years or decades in the past?

Although some members of the attorney general’s office have been more forceful in asking the Supreme Court to ditch Weeks, they have also made the case that restitution is the right of crime victims, not defendants. Although the Supreme Court did not agree to address that issue, the government has insisted defendants do not have grounds to challenge a judge’s failure to follow the process for ordering restitution.

Taking Weeks “to its literal extreme,” wrote Assistant Attorney General Frank R. Lawson, ignores the legislature’s intent to provide “recourse from untimeliness to the victim and the victim alone.”

Some Court of Appeals judges have agreed to recognize limitations to Weeks’ automatic reversal rule. One judge, Jerry N. Jones, has written multiple concurring opinions suggesting automatic reversal should not be the sole outcome for a non-compliant restitution order.

However, other judges have telegraphed their irritation at being lobbied to bless prosecutors’ and trial judges’ violations of Weeks.

“The current flood of litigation over these issues will largely be avoided,” wrote Judge Timothy J. Schutz in April, “if the prosecution fulfills its obligation to use diligent efforts to gather and present the information necessary to resolve restitution at the sentencing hearing, coupled with the court’s establishment of case management practices that ensure such obligations are fulfilled.”

Likewise, defendants have weighed in to the Supreme Court, pointing out the justices were aware when they decided Weeks that a trial judge’s negligence could result in a defendant escaping a restitution obligation. Defense attorneys argued their clients are inherently harmed by an invalid order to pay restitution and, moreover, caving to the government’s demands would lead to chaos right as trial judges are adapting to the new regime.

“Any perceived negative impacts are thus due to non-compliance with plain language of the statute by the prosecution and the court, not the defendant, and not the Weeks decision itself,” wrote attorney Tillman Clark.

‘Killing the patient’?

At the same time, the Court of Appeals’ attempt to apply Weeks has resulted in a roster of opinions that agree with, disagree with or attempt to distinguish themselves from one another, sometimes on the narrowest of grounds. 

In one instance, Jessica Jo Roberson appealed her $60,000 restitution order out of Weld County. Within the 91-day window, defense counsel indicated a need for more time to review the prosecution’s restitution request. The judge scheduled a hearing eight days beyond the deadline, with no objection from the defense. The judge issued her final decision 446 days after sentencing, but neglected to find good cause to extend the deadline before it expired. 

A three-judge panel for the Court of Appeals ultimately overturned Roberson’s restitution order, but doing so required it to thread the needle between multiple post-Weeks rulings:

• One Court of Appeals panel believed a defendant relinquished his right to challenge a restitution order because his lawyer requested a restitution hearing beyond the 91-day deadline. But Roberson’s panel believed there is a difference between requesting a hearing beyond 91 days and standing by while a judge schedules one past the deadline.

• Another Court of Appeals panel agreed a judge can find good cause to extend the deadline if a defendant needs time to object to the prosecution’s request. But Roberson’s panel did not feel such an accommodation was automatically a declaration of good cause.

“Accordingly, we conclude the court lacked authority to enter the restitution order,” wrote Judge Jaclyn Casey Brown.

To the Supreme Court, Assistant Solicitor General Brittany Limes Zehner slammed the Court of Appeals’ reasoning in Roberson’s case specifically, and characterized the Weeks decision generally as “killing the patient” — crime victims.

“This extreme and legally unsound interpretation of Weeks results in manifest injustice to crime victims, who, after being victimized by the defendant, are victimized again when the defendant’s debts are reduced to zero,” she wrote. “This Court should stop defendants from using procedural violations they asked for or benefitted from to rob victims of restitution.”

Roberson’s attorney, in response, observed there was a simple solution: Judges need to find good cause to extend the deadline before 91 days are up.

If the justices were to abandon Weeks due to the government’s lobbying, warned Hardy, the public defender, “the public’s and litigants’ confidence in the stability of this Court’s decisions will suffer if the Court frequently overturns its own recent decisions.”