During a marathon session of oral arguments on Tuesday, members of the Colorado Supreme Court appeared open to tweaking their landmark 2021 decision warning trial judges and prosecutors to follow the law when awarding restitution to crime victims.

But the justices quickly gave the Colorado Attorney General’s Office a reality check, indicating the Supreme Court would not be caving to the government’s demand to abandon the precedent in part or in whole.

“All of these arguments about reversing,” said Justice Melissa Hart within the first five minutes, “are sort of an irritant.”

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.

Quickly, defendants challenged untimely restitution orders in the Court of Appeals. While several succeeded, the appellate court also found ways to conclude Weeks‘ automatic reversal rule did not apply in particular circumstances.

At the same time, the attorney general’s office vigorously attempted to neutralize Weeks, seeking to undo the consequence of automatic reversal, hold defendants responsible for some untimely orders and impose other limitations.

Justice Carlos A. Samour Jr., who authored Weeks, bristled at several points during the arguments as the government’s lawyers suggested the court’s interpretation of the restitution law was unreasonable.

“We didn’t just pull it out of thin air. What was the reason we did that? Why did we adopt such a rigid scheme in Weeks?” he demanded.

“Because you had great intentions,” responded Assistant Attorney General Frank R. Lawson.

“You know the reason. We said it in Weeks. You may not like it, but you know it,” retorted Samour. “Because prosecutors were not following the law.”

Samour, a former prosecutor and trial judge, observed it was only after the Supreme Court imposed a consequence for violating the deadlines set by the legislature that the government cried foul. He defended the court’s actions to get the attention of prosecutors and trial judges.

“This is what it took to finally get them to follow the statute,” he said. “We wanted to give teeth to the deadlines. So, that’s the background here, right? Are you asking us now to go back on that? And go back to the way things used to be?”

Divergent views on Weeks

For their part, defense lawyers voiced relief that the Supreme Court would not be retreating from its core instructions in Weeks. Attorneys told the justices the decision has been successfully changing behavior in the trial courts.

“When I look at sentencing transcripts, what I’m seeing is judges saying, ‘We have 91 days. We need to get this done in 91 days. How are we going to do this? How can we get this done in 91 days?’ And they’re getting that done,” said public defender Lisa Weisz.

The justices also heard that 42 defendants’ restitution orders have been overturned due to the Weeks decision. Lawson, of the attorney general’s office, emphasized he wanted to help adjust Weeks to provide better outcomes for victims.

Weisz, arguing against him, countered that both defendants and crime victims have a right for restitution to be ordered in compliance with the law, and “the victim doesn’t have an entitlement to illegal restitution.”

“It’s interesting. You love Weeks on your side of the aisle and they hate it on the other side of the aisle,” said Samour, referring to the defense and the prosecution, respectively. “You think it simplified things and made things clearer. They think it just made a mess of things.”

Issues large and small

The five appeals the Supreme Court considered touched on a variety of issues, including:

• What happens if a judge orders restitution on the 91st day, but the defendant objects and requests a hearing?

• If a defendant specifically requests a hearing outside the 91-day window, but the judge does not find good cause, is there a problem?

• Can a defendant challenge an untimely restitution order anytime because it amounts to an illegal sentence?

The attorneys and the justices flagged one topic in particular as a concern: Must there be some other harm to the defendant beyond the deadline violation alone for the automatic reversal rule to apply?

Chief Justice Monica M. Márquez acknowledged the Weeks decision did not offer much analysis about what should happen to non-compliant restitution orders. But she hesitated to let untimely orders slide.

“It seems to rip the heart out of Weeks to the extent Weeks was intended to put teeth into the deadlines,” Márquez said.

Justice Richard L. Gabriel quoted from a recent Court of Appeals opinion — not among the batch of cases being heard this week — in which Judge Ted C. Tow III wrote that a restitution order issued without legal authority is always harmful to a defendant.

Public defender Jessica A. Pitts also endorsed that idea.

“Our clients are people, and they have hopes and dreams. And the idea of $13,000 hanging over their head … that causes anxiety and concern to defendants and causes them to put off major life decisions,” she told the Supreme Court. “To say that there’s no prejudice to defendants, I don’t think is accurate.”

‘Not anxious’ to go back

The justices on several occasions seemed to agree that some of the challenged restitution orders should be upheld because various actions taken in the trial court satisfied the spirit, if not the letter, of Weeks. At the same time, members of the Supreme Court stressed to the government that they were serious about correcting bad behavior.

“Some of what Weeks does, what it explicitly does, is providing what is the best practice,” said Senior Assistant Attorney General Brock J. Swanson.

“Was it best practice? Or was it saying, ‘This is what the statute requires?'” interjected Gabriel.

“Weeks should have been unnecessary,” Samour jumped in. “We expect DA’s to read statutes and follow them. For whatever reason, this has been an area of struggle for a long, long time.”

During the final argument, Justice William W. Hood III summarized the mood of the court after the attorney general’s office made its pitch for eliminating the automatic reversal rule.

“It seems like a recipe just to go back to square one. I think if nothing else is clear from today’s efforts,” he said, “we’re not anxious to go there.”

The cases are Tennyson v. People, Snow v. People, Johnson v. People, Babcock v. People and People v. Roberson.