Area of Law:
Colorado’s complex sentencing laws have led to a debate between the state’s Department of Corrections (DOC) and judges regarding whether individuals convicted of crimes are appropriately being sentenced to consecutive versus concurrent sentences. This difference in sentencing can result in years or even decades of difference in the amount of time a convicted individual has to serve in prison, as consecutive sentences for different crimes must be served back to back while concurrent sentences can be served simultaneously.
This means that, if a person has been sentenced to serve two consecutive 10-year prison terms, that individual will really be serving 20 years in prison; however, if the same sentence involves a concurrent sentence, then he will only be serving out 10 years in prison to satisfy both terms.
The debate over whether Colorado judges are properly applying the consecutive versus concurrent sentencing requirements for felons has received increasing attention within the past year. In fact, the purported problems with the complexities of Colorado sentencing laws garnered national headlines in March 2013 when parolee Evan Ebel murdered Tom Clements, the Department of Corrections chief, and Nathan Leon. Ebel, who was reportedly carrying out a hit on behalf of a street gang, had been released from prison about four years early due to a sentencing error in which he was given a concurrent sentence instead of a consecutive sentence.
Judges Review Allegedly Questionable Sentencing Rulings
In the aftermath of this double homicide and findings of the sentencing error, prison officials with the DOC publically raised their concerns about the fact that judges may not be applying sentencing laws appropriately to a number of other cases associated with inmates who were currently incarcerated and/or who had recently been released from prison and were on parole.
This led a group of long-standing Colorado judges to conduct a massive review of 1,677 cases in which the defendants had been convicted of two or more crimes. These cases, according to DOC officials, had questionable sentences and rulings. Upon conducting their review of these cases, however, the judges found that:
- Most of the rulings regarding consecutive versus concurrent sentences were appropriate and correct. Therefore, the sentences in these cases were not extended as the DOC had recommended.
- There were sentencing errors made in more than 17 percent of these cases (roughly 290 cases), which resulted in the judges ordering changes to be made so that the appropriate sentence was handed down to the convicted individual. While most of the people affected by these sentencing changes were still incarcerated, 22 had already been released from prison.
- Twelve of these released individuals were permitted to continue serving parole, and nine were rearrested and forced to serve out the remainder of their sentence (because their sentence had been changed from being concurrent to being consecutive). One man remains a fugitive and has yet to be caught by Colorado law enforcement officials.
- Nearly 17 percent of the cases in the review – around 280 – are still awaiting final decisions.
Reasons for Sentencing Errors
While it may be easy to discuss these sentencing errors in aggregate, the difference between serving a concurrent versus a consecutive sentence is huge when it comes down to the individual level, and defendants’ advocates are pushing for changes to Colorado sentencing laws to make them clearer, as well as easier to apply and enforce. Ironically, however, such changes to these sentencing laws are one of the main reasons that they are so complicated and are so often misinterpreted and misapplied.
In fact, former Denver District Court Judge Christina Habas has pointed out that she would have to become familiar with updates and changes to Colorado sentencing laws as often as every six months while serving as a judge. While, in the best cases, this would involve reviewing the latest statutes, in the worst cases, it would require intense analysis of the new laws’ ambiguities, which could themselves create additional problems with interpreting and enforcing Colorado sentencing laws.
Another reason for the problems associated with Colorado sentencing laws is the fact that a lot of discretion is left up to the particular judge handling a given case. In other words, judges in many cases can choose whether it is more appropriate to hand down a consecutive or a concurrent sentence for a particular defendant. When making such decisions, it often comes down to very fine details in a case, such as:The date of the offense
- The nature and severity of the offense
- Whether there were victims of the offense (and, if so, the damage done to the victims, the ages of the victims, etc.)
- Whether the defendant has prior convictions for similar offenses or violent crimes
- Whether the defendant was on parole or probation at the time of the offense.
What this translates to is an inconsistent, highly subjective system for determining whether consecutive or concurrent sentences are appropriate for various defendants. As Habas has so aptly put it, “[The Colorado sentencing process] is a human system,” with the implication being that it is, therefore, inherently erred.
Standing Up for Defendants’ Rights
In the ongoing debate between Colorado judges and officials at the DOC, advocates at the American Civil Liberties Union (ACLU) have stepped forward to try to give the defendants a voice. These advocates have pointed out that:Defendants have little to no recourse after they may have received an improper sentence.
- Colorado sentencing laws should be better written so that they can be uniformly applied without the degree of uncertainty and ambiguity that currently exists.
- The DOC should, in theory, not have the standing to question the rulings of the courts, and the courts should have the absolute authority in interpreting and applying Colorado sentencing laws.
As this controversy rages on, there will likely be more changes to Colorado sentencing laws in the future, and it’s clearly more important than ever that defendants work with experienced legal advocates who will defend their rights and best interests.