Felony Sex Offender Sentencing

• Publication year: 2004
• Pages: 11

33 Colo.Law. 11 Colorado Lawyer 2004.

2004, December, Pg. 11. Felony Sex Offender Sentencing

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11

Vol. 33, No. 12, Pg. 11

The Colorado Lawyer
December 2004
Vol. 33, No. 12 [Page 11]

Articles

Felony Sex Offender Sentencing
by Phil Cherner

This article was written by Philip Cherner, a sole practitioner in Denver, emphasizing criminal defense and attorney grievance defense - (303) 860-7686 phil@philcherner.com; www.phil cherner.com

This article discusses the provisions that govern adult felony sex offender sentencing and the Colorado Sex Offender Lifetime Supervision Act. The Standards of the Sex Offender Management Board also are covered, as well as conditions of probation

Plaintiff Heather Wesp sought tort damages against her mother and stepfather, Cheryl and Frank Brewer, alleging that Frank Brewer had sexually abused her. Criminal charges were also filed based on the same allegations. After writing letters denying the accusations, both Brewers committed suicide.1

One of the most traumatic events with which lawyers have to cope is a sex offense allegation. Whether the client is accused of having been a sexual perpetrator or the client is a possible victim of sexual abuse, the level of trauma to which the client will be exposed is beyond mere quantification. This article summarizes the various provisions that govern adult felony sex offender sentencing today. A large part of the statutory scheme is the Colorado Sex Offender Lifetime Supervision Act of 1998 ("Act"),2 which radically changed the philosophy of Colorado sex offender sentencing.

Unless otherwise noted, this article covers the Act as amended through 2004. In 2002, the General Assembly recodified much of the felony criminal sentencing scheme. There were minimal, if any, substantive changes, but numerous provisions were renumbered.3 More than six years of experience with the Act have provided perspective and appellate interpretation, making this a good time to assess its workings.

It is not uncommon for allegations of sexual assault to arise during divorce proceedings, dependency and neglect actions, and domestic violence investigations. Therefore, some knowledge of the Act's workings should assist a wide variety of practitioners. This article discusses the Act's provisions and implementations, as well as the sentencing options for adult felony sex offenders who are not sentenced under the Act. Because the treatment for offenders on probation and parole is the same for both categories of offenders, the article also summarizes the various treatment regimens.4

BACKGROUND OF THE ACT

Prior to November 1, 1998, sex offenders were most frequently sentenced under the general felony sentencing statute5 and, in rare cases, under the Colorado Sex Offenders Act of 1968 ("1968 Act").6 The 1990s saw the evolution of treatment programs for sex offenders on probation and in prison. The Act can be seen as a culmination of this trend. The Act wholly abrogates the 1968 Act and imposes lifetime supervision for the more serious sex offenders, whether the offender has been sentenced to probation or to prison.

The policy behind the Act is summarized in its legislative declaration:

The general assembly hereby finds that the majority of persons who commit sex offenses, if incarcerated or supervised without treatment, will continue to present a danger to the public when released from incarceration and supervision. The general assembly also finds that keeping all sex offenders in lifetime incarceration imposes an unacceptably high cost in both state dollars and loss of human potential. The general assembly further finds that some sex offenders respond well to treatment and can function as safe, responsible, and contributing members of society, so long as they receive treatment and supervision. The general assembly therefore declares that a program under which sex offenders may receive treatment and supervision for the rest of their lives, if necessary, is necessary for the safety, health, and welfare of the state.7

To provide some idea of how the Act is applied, the next section first sets out the types of crimes that are covered by the Act and the law covering life and consecutive/ concurrent sentences.

Types of Crimes

In Colorado, felonies are divided into six classes, with class 1 felonies being the most serious.8 Felony sex offenses are effectively broken down into three categories. The first, for which the Act requires a lifetime sentence, are the most common class 2, 3, and 4 "sex offenses."9

A second group is the so-called "economic" sex crimes, such as trafficking in children, for which the Act's lifetime sentencing is not automatic.10 Before the Act can be applied to these economic sex crimes, the court must find that the defendant is likely to commit sexual assault, unlawful sexual contact, sexual assault on a child, or sexual assault on a child by one in a position of trust. The court also must find that a victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization.11

A third group of sex felonies is excluded from the Act's coverage altogether. These are primarily class 5 and 6 felonies. An example is attempt or conspiracy to commit a class 4 felony sex offense (such as an attempt to commit sexual assault without force), which is therefore statutorily defined as a class 5 felony.12

Generally, if the offense is covered by the Act, the court must impose a life prison sentence or lifetime probation. Persons who commit sex offenses not covered by the Act are sentenced to a determinant sentence of years, rather than a range, in the same manner as for other felonies.13 The Colorado Court of Appeals has rejected all constitutional challenges to the Act. Due process, equal protection, separation of powers, cruel and unusual punishment, and Fifth Amendment attacks were denied in People v. Oglethorpe,14 among other cases.

Life Prison Sentences

A court that imposes a life prison sentence is commanded to sentence the offender to "at least" the minimum in the presumptive range, to life. The presumptive range for the offense is defined in the general felony sentencing statute.15 For a class 4 felony, for example, the minimum in the presumptive range is two years. Thus, the sentence for the sex offense has to be at least two years to life. The phrase "at least" was interpreted literally in People v. Smith.16 Under this case, there is apparently no upper limit to the minimum. For this example, therefore, the sentence could be two years to life, fifty years to life, or ninety-nine years to life. The "top" end of the indeterminate sentence must, as required by the Act, be natural life, meaning the offender will be imprisoned forever unless paroled.17

Unlike all other felons, a defendant sentenced to prison under the Act must serve 100 percent of the minimum sentence, less any earned time deductions, before the parole board may give initial consideration to releasing the offender to parole.18 Earned time cannot exceed 25 percent of the sentence.19 When an offender is parole-eligible, the parole board must consider releasing the defendant to parole, but it may reject the application. In fact, so far, it has rejected every parole application under the Act since its inception in 1998.20

Consecutive/Concurrent Sentences

Presumably, the pre-existing body of law dealing with consecutive and concurrent sentences applies to sentencing under the Act. Thus, under the Act, the court has discretion to impose either type of sentence, unless constrained by a specific statutory provision.21 The Act does state:

Any sex offender sentenced pursuant to subsection (1) or (4) [of CRS § 18-1.3-1004] and convicted of one or more additional crimes arising out of the same incident as the sex offense shall be sentenced for the sex offense and such other crimes so that the sentences are served consecutively rather than concurrently.22

In People v. Becker,23 for example, the court held that a forty-eight-year to life sentence under the Act and a consecutive eight-year sentence for burglary was within the trial court's discretion.

PROBATION AND
COMMUNITY CORRECTIONS

Not all sex offenders are sent to prison; in fact, it has been estimated that two out of every three sex offenders are sentenced to probation. The Act authorizes probation for roughly the same group of individuals who were probation-eligible before its passage. On the other hand, offenders convicted of a crime of violence and habitual offenders must be sent to prison.

If probation is ordered, it must be for an indeterminate term of from ten years to life for a class 4 felony and from twenty years to life for class 2 and 3 felonies. Intensive supervised probation is required.24 Offenders not sentenced under the Act are generally eligible for probation, provided their criminal history is not a bar.25

Residential community corrections placement also is authorized, but only as a condition of probation.26 By and large, however, the community boards and halfway houses are not willing to take sex offenders.

This section first discusses the Sex Offender Management Board ("SOMB") and the evaluations required of sex offenders by the SOMB. It then discusses the conditions of probation.

Sex Offender
Management Board

Although the SOMB was not created as part of the Act in 1998 (it preceded this legislation), it is charged with promulgating standards for the evaluation and treatment of sex offenders.27 Pursuant to its authority, the SOMB has promulgated the Colorado SOMB Standards and Guidelines for the...