Colorado's Habitual Criminal Act: an Overview
| Publication year | 1983 |
| Pages | 215 |
| Citation | Vol. 12 No. 2 Pg. 215 |
1983, February, Pg. 215. Colorado's Habitual Criminal Act: An Overview
Colorado has had an enhanced sentencing statute for habitual offenders since 1929.(fn1) In its present form, Colorado's Habitual Criminal Act ("Act")(fn2) contains two sentencing gradations. C.R.S. 1973, § 16-13-101(1), the so-called "little" habitual criminal provision, subjects a person who has had two prior felony convictions to a sentence of from 25 to 50 years upon his third such conviction. Subsection (2) of the same statute, the "big" habitual criminal provision, prescribes a mandatory life sentence for a person convicted of a felony who has three prior felony convictions.
Although at present there are no state-wide statistics available concerning the number of cases filed under a particular criminal statute, the Colorado District Attorneys Council ("CDAC") has compiled such information for nine of the state's twenty-two judicial districts.(fn3) In 1980 and 1981 the number of habitual criminal filings in these nine districts stood at 50 and 40, respectively. Significantly, the potential number of habitual criminal cases is possibly far greater than these statistics reflect. In the late 1970s, a survey of inmates incarcerated at the state penitentiary showed that less than 1 percent of those eligible for habitual criminal prosecution had actually been sentenced under the Act's provisions.(fn4)
Due to the severity of the consequences for one adjudged a habitual criminal, it is not surprising that application of the Act has spawned numerous appellate court decisions concerning its scope, constitutionality and procedural and evidentiary requirements. Moreover, the legislature in recent years has responded to these decisions, as well as to criticism of the Act, by significantly amending many of its provisions. The upshot of this judicial and legislative activity is an increasingly complex body of law governing habitual criminal proceedings.
The purpose of this article is to review the provisions of the Act and the case law interpreting them. Hopefully, this process will yield a practical guide to the intricacies of the Act and provide a conceptual framework for dealing with this type of charge and proceeding.
Sentences under the Act have engendered a variety of constitutional challenges. Invariably, the Colorado Supreme Court has upheld the constitutionality of the Act's substantive provisions against all such attacks.(fn5)
Perhaps the most persistent attack on the Act has been a claim that its application violates due process because it constitutes cruel and unusual punishment. The Colorado Supreme Court has held to a "shock the conscience" test in these cases(fn6) and, to date, its conscience has not been shocked by any of the sentences which it has reviewed under the Act.(fn7) These include, for example, a life sentence for a conviction of a felon with a gun charge where the defendant had prior convictions for grand larceny, robbery and burglary.(fn8)
Nonetheless, because a "shock the conscience" test suggests a case-by-case treatment, habitual criminal sentences continue to be challenged as constituting cruel and unusual punishment. Recently, however, in considering a new twist on the argument, the Colorado Supreme Court came close to closing the door on challenges of this nature.
In People v. Gutierrez, the court held that prior decisions by the United States Supreme Court in Spencer v. Texas and Rummel v. Estelle, Jr. left no doubt the "big" habitual criminal provision's mandatory sentencing clause is not invalid on its face as contrary to the Eighth Amendment.(fn9) It also concluded that, unlike the death penalty situation, there is no constitutional requirement that mitigating factors be considered in sentencing under the Act. Moreover, the court found that the use of nonviolent crimes as predicate felony convictions did not give rise to any constitutional infirmity.
Nonetheless, the court left open one narrow ground for appeal under the Eighth Amendment. It noted that it need not decide whether there might ever be a case in which a mandatory life sentence would constitute cruel and unusual punishment because the prior convictions taken together with the substantive crime were "so minor in nature." However, the analysis employed by the court, together with its reference to Estelle,(fn10) suggests that it is unlikely to consider a claim of cruel and unusual punishment when made in reference to a sentence under the Act, except in the most extreme circumstances.
Similarly, the court has rejected due process/equal protection arguments based on the alleged selective use of the habitual criminal statute by prosecutors.(fn11) Significantly, in many of the cases raising this argument, the defendants
have presented statistical information showing that only a small percentage of prison inmates eligible for prosecution as habitual criminals are actually sentenced under the Act.(fn12)
Questioning the usefulness of these data, the court has concluded that, absent proof of invidious discrimination based upon suspect factors such as race or religion, a person adjudged a habitual offender cannot successfully challenge the alleged infrequent use of the Act. Moreover, the court has held in these cases that the increased punishment for a person sentenced as a habitual criminal is not arbitrary because it can only be imposed after proving additional facts showing prior convictions.
Finally, the Supreme Court has rejected equal protection attacks aimed at the lack of any limitation upon the age of convictions which may serve as predicate felonies under the "big" habitual criminal provision. It has also rejected such attacks based on the use of a conviction to enhance punishment which, due to a change in the law since the conviction became final, would not constitute a felony if the crime in question had been committed today.
In both instances, the court has held that the legislature acted rationally in pursuit of its purpose to punish repeat offenders more severely. Thus, the legislature has reasonably determined in the latter situation that an individual who has previously elected to violate criminal standards, then present in the society in which he was found, should be treated as a habitual offender. Likewise, in the former situation, the commission of four felonies regardless of time should be more severely punished than the commission of three felonies within a ten-year period.(fn13)
Given the procedural similarities between a habitual criminal trial and trial on a substantive charge, the Supreme Court has concluded that the constitutional protection against double jeopardy applies to a defendant prosecuted as a habitual criminal. Jeopardy apparently attaches when the jury is impaneled and sworn for trial of the substantive offense. Consequently, where a trial court...
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