Sentencing for Felony and Misdemeanor Convictions-time Actually Served
| Publication year | 2010 |
| Pages | 27 |
| Citation | Vol. 39 No. 2 Pg. 27 |
2010, February, Pg. 27. Sentencing for Felony and Misdemeanor Convictions-Time Actually Served
February 2010
Vol. 39, No. 2 [Page 27]
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law; legislation; and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, judge for the Second Judicial District Court, Denver
About the Author
Philip A. Cherner has practiced criminal defense and attorney grievance defense since 1975. He is a solo practitioner in Denver-phil@philcherner.com.
This article reviews Colorado sentencing data to determine how much time defendants serve in custody as a percentage of their court-imposed sentence. The average time served for felonies is approximately 70 percent.
Criminal sentencing in Colorado, especially for felony convictions, can be complicated, and it is difficult to predict the length of prison time an inmate will serve. The defendant, family members, defense counsel, the prosecutor, the victim, and members of the public are allowed to attend the sentencing hearing. At the hearing, the court pronounces a sentence. By statute, the court advises the audience that:
[t]he defendant may spend less time incarcerated than the term announced. . . . The actual time served will be influenced by a number of factors including, but not limited to, previous criminal activities, eligibility for earned time for good behavior, correctional education program earned time, credit for time served, or community corrections eligibility.(fn1)
Thus, the sentenced term and the actual time served are not necessarily the same.
Parole decisions and complications about when an inmate will become eligible for parole make it difficult to know what portion of an imposed sentence a defendant will serve. Familiarity with the factors that drive these uncertainties and an analysis of release statistics might be edifying for judges, lawyers, defendants, and victims.(fn2) This article reviews factors and statistics for felony and misdemeanor cases and generally discusses sentencing in Colorado.
Time Computations
Inmates may not be released on parole until they reach their parole eligibility date (PED). The parole release decision is only one uncertainty when estimating in advance how much time an inmate will actually serve; there also are uncertainties and complications in the process of calculating an inmate's PED.(fn3)
PED Release Consideration
The general rule of time computation is that a felony defendant will be eligible to meet the parole board for parole release consideration after serving 50 percent of the sentence, less earned time (not to exceed 30 percent of the sentence) and presentence confinement credit.(fn4) Presentence confinement credit is the amount of time the defendant spent in custody awaiting sentencing. It includes time spent in jail and in residential community corrections before the prison sentence was imposed. This rule of time computation is a general rule because there are a number of crimes where this no longer applies.
Automatic deduction. Lawyers and judges may sometimes speak of "good time"; however, this was abolished approximately twenty years ago and replaced by the automatic 50 percent deduction. This means that 50 percent time off for good behavior is awarded to most inmates who enter the Department of Corrections (DOC). For example, an offender sentenced on January 1, 2009 to eight years for the class 3 felony of burglary would receive a four-year reduction at the time the sentence was imposed. The PED, without any additional deductions, would be January 1, 2013.
Presentence credits and earned time. Additional deductions come from presentence confinement credits and earned time. All felony defendants are entitled to credit against their sentences for any time spent in custody before the sentences were imposed.(fn5) In the burglary example above, if the inmate was in custody for seven months prior to sentencing, the PED would be June 1, 2012.
Earned time of up to ten days for every month served may be awarded.(fn6) Unlike presentence credits that apply to every defendant, earned time is discretionary. It can be earned through participation in one of seven categories of DOC programming:
1) work;
2) training;
3) group living;
4) progress toward goals;
5) compliance with parole;
6) no harassment of victim; and
7) progress in literacy or education.(fn7)
A common reason for refusal to award earned time is failure to participate in a sex offender treatment program.(fn8) Earned time also can be taken away after it is awarded for general disciplinary reasons. It may not be awarded for program participation during presentence confinement.(fn9)
The DOC has devised a computer program for figuring out earned time, which can require detailed calculation. The general rule is that if an inmate earns and keeps the maximum amount of earned time, after the 50 percent automatic deduction, the PED will be at approximately 37.5 percent of the imposed sentence, less presentence confinement credit.(fn10) Consider the defendant in the burglary example, who received an eight-year sentence.
* After subtracting the 50 percent automatic deduction, forty-eight months to parole eligibility remain.
* After subtracting an additional seven months for presentence confinement credit, forty-one months are left.
* Subtracting the maximum allowable earned time of ten days per month results in approximately ten months of earned time credit.
* This leaves thirty-one months to be served from the date of sentencing (January 1, 2009).
So, if the burglar earned all the earned time he could earn, and did not lose any of it for disciplinary reasons, he would...
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