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A law enacted this year that decreases penalties for offenders who tamper with or remove their electronic monitoring devices should benefit those who committed the crime prior to the law taking effect, the Colorado Court of Appeals has decided.

“Thus, regardless of whether the General Assembly reduces a penalty by creating a new offense or by modifying an existing offense, such an amendment applies retroactively for the benefit of a defendant whose case has not yet resulted in a final conviction, so long as the legislation by its terms does not apply prospectively only,” wrote Judge Lino S. Lipinsky de Orlov in an opinion published on Thursday.

This year, Gov. Jared Polis signed the Prison Population Reduction and Management Act, a multifaceted bill relating to out-of-state inmate incarceration, the standard for placing a parolee in treatment programs and studying future prison capacity needs. One provision of the law created a new crime of unauthorized absence, applicable to those on work release, in community corrections or under intensive supervision parole.

An unauthorized absence occurs when an individual removes or tampers with their electronic monitoring device in order to avoid arrest or surveillance. Offenders who committed violent crimes will receive a felony charge for the act, whereas all others will be charged with a misdemeanor. Unauthorized absence replaces the previous crime of felony escape, which was treated as a more serious offense than under the 2020 law.

In the past three years, nearly 1,100 individuals have received convictions under the felony escape statute, and more than 1,900 were convicted for attempted escape. Establishment of the new offense came with a dramatic reduction in fines and jail time for those who commit unauthorized absence.

The Colorado District Attorneys' Council, in a statement on Thursday, said it did not oppose the bill or its creation of an unauthorized absence offense. "Our position on the bill, however, relied on the understanding that — as is the case with all new crimes — it would not be applied retroactively," the organization said. "Today's decision by the Court of Appeals only underscores the need for the General Assembly to adopt new legislation making explicit that any statutory changes to the criminal code are only applicable to crimes committed after the bill has been signed into law.”

In the case under consideration, Jesse Gregory reportedly removed his monitoring device while on parole, leading Mesa County prosecutors to pursue a 48-year sentence under the felony escape law. With an unauthorized absence, he would have received a maximum of six months in jail.

Gregory had absconded for 15 months. However, while he faced a pending felony escape charge, the governor signed the law change. A district court judge agreed that the unauthorized absence crime applied to him retroactively, rather than the more serious felony charge. Prosecutors disagreed, arguing retroactivity does not apply with a new offense.

In reviewing the matter, the three-member Court of Appeals panel turned to a 2018 state Supreme Court decision overturning a towing company owner’s conviction for a more serious felony because the legislature had downgraded the offense before his conviction and sentencing. The court’s majority held that amendments easing criminal penalties apply retroactively, unless the General Assembly specifically notes otherwise.

The appellate panel found no basis for the prosecution's claim that removing a monitoring device was a new crime, inapplicable to Gregory's conduct.

“[T]he Prison Reduction Act did not legalize the removal of an electronic monitoring device without authorization with the intent to avoid monitoring. Such conduct remains a crime. It is simply a different crime, with a lesser penalty, from the crime applicable before enactment,” Lipinsky wrote.

Daniel P. Rubinstein, the district attorney for Mesa County, expressed concern that the allowance for retroactivity would set a precedent on future legislation. He indicated he would talk with other prosecutors' offices before deciding whether to appeal further.

"While we disagree with the decision, and certainly take seriously people who abscond from community corrections and parole, the legislature has spoken on their lack of concern about people absconding from those programs," Rubinstein said.

One of the sponsors of the Prison Population Reduction and Management Act, Rep. Leslie Herod, took exception to Rubinstein's characterization of the General Assembly's actions.

"I defer to the court's reasoning regarding the applicability and retroactivity of the law," said Herod, D-Denver. "But let's also be clear, the law did not get rid of all punishment related to the conduct at issue here. There is punishment."

She added that an offender would be subject to a parole revocation and the six-month sentence for unauthorized absence. "To assert that the bill passed by the General Assembly indicated 'no regard' for absconding is categorically false," Herod said.

The case is People v. Gregory.

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