The Colorado Supreme Court considered on Tuesday whether criminal defendants whose parole is revoked must appeal the decision internally to the state’s parole board before seeking review by a judge.

The process for returning someone to incarceration for violating the conditions of their parole first entails a hearing by one member of the Colorado State Board of Parole. Afterward, the defendant “may appeal” the decision to two other members of the parole board. Separately, defendants can file a petition for postconviction relief based on “unlawful revocation of parole.”

But if a defendant “may appeal” with the parole board and chooses not to, can he still seek relief from the courts?

The legislature “could’ve said, ‘If the defendant here chooses to appeal, they shall….’ Something like that,” said Justice Richard L. Gabriel during oral arguments. “How do we get from ‘may’ to require that?”

Yet, the parole board appeal is “just another layer of due process. I kind of feel, what’s the harm in having that?” wondered Justice Brian D. Boatright.

In 2024, a divided three-judge panel of the Court of Appeals ruled for the first time that judges may hear challenges to parole revocations without the defendant needing to go through a parole board appeal. The majority concluded that the law does not require an appeal.

Judge Grant T. Sullivan dissented, worrying that the ability of defendants to “leapfrog” a parole board appeal would result in negative consequences.

“For example, allowing parolees to bypass the appellate body’s review will deprive the Board of its ability to correct errors committed by the single Board member who presided over the initial revocation hearing, potentially leading to even more protracted litigation that could have been avoided,” he wrote.

Sullivan added that the requirement in other contexts for a person to go through an executive agency’s internal grievance process before filing suit is intended to promote efficiency, allow subject matter experts to weigh in first, and conserve judicial resources.

The Colorado Attorney General’s Office appealed, arguing that it is a defendant’s choice whether to accept the revocation or challenge it, but that challenge must first go through the parole board.

By going straight to the courts, defendant Shams Abdul-Rahman “had to wait for three years now to get the decision,” said Assistant Attorney General Fellow Leo T. Nguyen. “The appellate body process would have afforded him potentially quicker relief.”

Jeffrey C. Parsons, representing Abdul-Rahman, argued that a parole board appeal can correct “narrow” errors, but he worried that defendants would lose the chance to seek judicial review if they do not understand the appeal process.

“I think it’s sometimes difficult as lawyers to put ourselves in the shoes of people who aren’t lawyers, and don’t understand the process and the procedures and what the failure to do that appeal my result in,” he said. “Frankly, when my clients get initially re-incarcerated, there’s a whole period of time just as a practical matter where it’s difficult for them to even get paper or to get into the law library.”

“My only experience was when I was a trial court judge; they would conduct parole hearings in my courtroom when I wasn’t using it. So, I kind of observed it seemed like it was a conversation,” said Boatright. “Seems like that’s a more friendly environment.”

While that may be the case for the initial hearing, responded Parsons, defendants do not participate in the parole board appeal.

Gabriel agreed that the parole board appeal could be a “trap” for defendants who are not told what they must do.

“They don’t have to be notified that they have this application and it’s probably a very short fuse to file by this administrative deadline,” he said. “I would fear many, many defendants would just blow this.”

“As a practical matter, what are these defendants notified of?” asked Chief Justice Monica M. Márquez.

Nguyen said he did not know.

The case is People v. Abdul-Rahman.