Prosecutors will soon receive an answer to a question the state Supreme Court created in 2019: are hundreds of sex offender sentences in Colorado actually illegal?
Following the Court’s unanimous ruling in Allman v. People that criminal sentences are impermissible if they include both prison and probation, the justices have agreed to hear two appeals from the Denver District Attorney’s Office to clear up whether their decision extends to the sentencing of those who commit sex offenses.
If the answer is yes, current sentences would be up for revision or possibly repeal.
The cases scheduled for oral argument in March involve defendants sentenced under the Sex Offender Lifetime Supervision Act, which allows indeterminate sentences in the Department of Corrections that can last up to a lifetime for crimes ranging from sexual assault to child trafficking. A state review from 2016 found that the percentage of the prison population subject to lifetime sentences has slowly risen to roughly 9% of all inmates, and sex offenders with a sentence of any duration comprise one-quarter.
“There is no guarantee that the parole board will ever release a sex offender," explains the Denver law firm of O'Malley and Sawyer. "A sex offender must also complete part of the Colorado Sex Offender Management Board treatment while they are in prison. Many times, due to limited treatment resources in DOC, the treatment program is already being used by the maximum number of inmates."
The legislature also created sex offender intensive supervised probation that features a raft of conditions and restrictions on convicted individuals. Among other requirements, they must register as a sex offender, pay for their own genetic testing, refrain from contact with any children without approval and participate in a treatment program.
The Denver appeals will now enable the Supreme Court to clarify whether it intended to forbid the combination of prison and probation that SOLSA allows, even though the Court banned the practice generally.
In the September 2019 Allman decision, the Court concluded that current law does not give judges the authority to sentence defendants to prison and parole on certain counts while sentencing them to probation on other counts in the same case. Finding that probation and prison are mutually exclusive, and an individual who gets out of prison on parole may have requirements that conflict with probation, the Court deemed such sentences to be legally impractical.
Furthermore, wrote now-Chief Justice Brian D. Boatright, the attempt to subject a person to longer post-release supervision by adding a probationary sentence “ignores the fact that the legislature determined the proper length of time for a defendant’s post-incarceration supervision when it crafted mandatory periods of parole. It did not leave that decision to the courts.”
However, the defendant in the Allman case was not convicted for a sex crime. It was only in September 2020 that the Colorado Court of Appeals ruled specifically that Allman did not apply to sex offender intensive supervision because lawmakers designed SOLSA to accommodate both types of sentences.
Denver Deputy District Attorney Richard F. Lee, in a petition to the Supreme Court, said that plea deals involving multiple offenses — where one is a sex offense — typically employ the combination of prison and sex offender intensive supervised probation where the sentence is not open-ended. For the defendant, this allows them to avoid a conviction at trial and face up to life in prison, and ensures the prosecution will secure a guilty plea with the accompanying sex offender treatment.
“In practice, these circumstances are quite common. And prosecutors and defense attorneys have often arrived at the same solution: Enter a plea agreement that results in two convictions and a sentence to prison-plus-determinate-SOISP,” Lee wrote.
He further explained to the Court that his office found 50 similar plea agreements in 10 counties just in 2018, with “likely hundreds more from prior years.” If the justices decided to extend the Allman ruling to sex offenses, Lee argued, those plea agreements would morph into solely prison or solely probation.
The first appeal combines in a petition three criminal cases in which the defendants all pleaded guilty to a non-sexual crime as well as attempted sexual assault. In two instances, men forcibly penetrated their adult victims and in the third, a man forced a child to perform a sex act on him. They received fixed-term prison sentences and up to 10 years of sex offender intensive supervised probation.
The trial court judges all agreed that, although the Court of Appeals found an exception to the Allman decision, the appellate ruling involved a sentence of indeterminate probation, rather than fixed-term probation. Therefore, it did not apply to the cases at hand and the judges could only follow the Allman decision.
Consequently, they declared the sentences illegal.
“Sex cases are different,” Lee argued. “This isn’t simply about extending the defendants’ post-incarceration supervision; it’s about providing the most appropriate treatment and supervision, as SOLSA demands.”
Megan A. Ring, the Colorado State Public Defender, by contrast, argued the Denver cases are indistinguishable from Allman. The requirement to receive treatment, she wrote to the court, creates an even greater conflict between parole and probation for sex offenders.
“It explicitly allows different entities, including the department of corrections (parole) and the judicial department (probation) to make their own recommendations and thus requirements for treatment,” Ring contended. “This could easily create a situation where parole and probation have different, possibly contradictory requirements of the person serving these two distinct sentences.”
Nevertheless, Robert Russel, chief deputy district attorney in Denver's appellate division, maintained that plea deals featuring fixed-term prison plus probation can be beneficial to the criminally accused.
“A lot of defendants out there would rather plead guilty to a definite term of prison plus probation instead of going to trial and risking an indeterminate life sentence to prison," he said. "If the court were to reject all our arguments, then all of these previous guilty pleas will have to be undone, even if the defendant doesn’t want to do that.”
In the second appeal, the defendant raped his ex-girlfriend at knifepoint and received a prison sentence of two years and an indeterminate period of probation in exchange for his guilty plea. After the Supreme Court decided Allman, the Court of Appeals threw out the guilty plea, finding it invalid because it stemmed from an illegal sentence.
“[N]o sound public policy supports allowing the parties to bargain for an illegal sentence,” wrote defense attorney Colleen Kelley to the Supreme Court, asking the justices to uphold the Court of Appeals. She cited a 1989 decision from the High Court establishing that illegal sentences create an “impermissible inducement” to a plea deal, making the plea itself void.
The Denver District Attorney's Office indicated that since the Allman decision, it has avoided negotiating plea deals that involve the disputed sentencing practices until the Supreme Court could weigh in.
In enacting SOLSA, the legislature believed that a majority of sex offenders would continue to be a danger to the community if they did not receive treatment.
Many academics and organizations, like the National Association for Rational Sex Offense Laws, question the effectiveness of severe sentencing regimes for sex offenders. Rachel Marshall, a former public defender in Oakland, Calif., wrote in 2016 that she believed her clients would have taken more jail time to avoid having to register as sex offender and "damaging their personal and professional lives long after they've served their time."
Colorado's handling of sex offenders has been the subject of numerous legal challenges, including a pair of federal court rulings from last year that found the state's sex offender registry did not constitute cruel and unusual punishment. Currently, the state Supreme Court is weighing whether mandatory lifetime registration for juvenile sex offenders is cruel and unusual.
The cases are People v. Keen and People v. Manaois.