Colorado’s 23-year-old sex offender sentencing law is in the hands of the state Supreme Court, as the justices on Wednesday considered whether the court should strike down a common method of sentencing those defendants charged with felony sex crimes.
The Denver District Attorney’s Office appealed a pair of cases to the court following the 2019 decision of Allman v. People, in which the justices barred people from receiving both prison terms and probation when they are convicted of multiple offenses in a single case. The court reasoned that probation should take place instead of imprisonment, not in addition to it.
By requiring someone who receives a prison term with parole to also complete probation, the court labeled it a way of skirting the legal time limits on parole, and subjecting the defendant simultaneously to two supervisory authorities: the executive branch for their parole and the judicial branch for their probation.
The Allman ruling threw scores of sex offender sentences into doubt. But even some of the justices seemed concerned this week about defense attorneys’ request that the court compel sentences of prison or probation, but not both, for sex offenders.
“I’m a little bit puzzled,” said Justice Richard L. Gabriel at oral argument, “as to why this argument is in your client's interest or defendants’ interest in general. It seems you’re making an argument that would force the courts to do indeterminate prison in every case and I'm not sure why you want to go there.”
Under the Sex Offender Lifetime Supervision Act, or SOLSA, people who commit sex crimes may receive an indefinite sentence — up to life — of prison and parole, or indefinite sex offender intensive supervised probation for certain crimes. Some prosecutors' offices had crafted plea deals allowing accused individuals to plead guilty to a non-sexual offense and receive a defined prison term, as well as plead guilty to a sex offense to receive probation and its associated sex offender treatment.
Because the defendant in Allman was convicted of non-sexual offenses, it was a lingering question for the state’s prosecutors about whether this combination of sentences was also illegal for SOLSA.
“The defendant's sentence is still legal because it aligns with the general legislative intent of SOLSA, which was specifically designed to expand post-incarceration supervision beyond the limits of the general sentencing statutes,” argued Deputy District Attorney Richard F. Lee to the justices. He added that his office had tallied 80 cases in 2018 alone that employed the combination sentencing.
In September of last year, a panel for the Court of Appeals handed down a decision that upheld the combination of prison and probation under SOLSA. The legislature, determined the appellate panel, intended for those who committed sex offenses to receive treatment for up to a lifetime. Unlike other crimes, the effect was not to inappropriately lengthen an offender’s sentence.
In passing SOLSA in 1998, the General Assembly expressed a belief that the majority of those who commit sex offense will reoffend without treatment, and that “a program under which sex offenders receive treatment and supervision for the rest of their lives, if necessary, is necessary for the safety, health, and welfare of the state.”
Lawmakers' intentions were a key theme of the oral arguments.
“The legislative declaration seems to encourage us to look for ways to maximize out-of-custody supervision,” observed Justice William W. Hood III. “It seems like they would like us to devise a way where someone could do prison on a non-sex offense and still have out-of-custody supervision on a sex offense for a long period of time.”
At the time of its passage, then-Rep. Norma Anderson, R-Lakewood, who sponsored SOLSA in the House of Representatives, quoted from a federally-sponsored research project that studied a “containment approach” to sex offenders.
“There is no cure for sex offenders,” she said, which “underscores the need for criminal justice system policies that keep offenders in the best possible treatment for the longest possible time.”
A U.S. Department of Justice report has since found that sex offenders are less likely to reoffend over time.
Anderson also told representatives that for someone who is charged with both a sexual and non-sexual crime, “he/she must serve the sentences consecutively.”
The cases before the Supreme Court featured defendants who pleaded guilty and received shortened prison sentences plus indeterminate or determinate windows of probation. Michael Anthony Manaois admitted to sexual assault and menacing after he allegedly kidnapped his ex-girlfriend and forced her to have sex at knifepoint. After the Allman decision, the Court of Appeals overturned Manaois’s sentence, convictions and guilty plea.
In the second case, involving Patrick Keen and two other named defendants in similar situations, Keen reportedly physically assaulted his girlfriend and raped her with an object. He pleaded guilty to first-degree assault and attempted sexual assault, and ended up receiving a sentence of 16 years in prison plus eight years of sex offender intensive supervised probation. A district court judge deemed the sentence illegal after Allman.
Under SOLSA, probation can impose a litany of restraints on the defendants. Those conditions include a monitored curfew, drug and alcohol screenings, and employment or home visitation from probation officers. Lee, with the district attorney’s office, told the court in his briefs that prison plus probation was a common goal because prosecutors feel defendants need to participate in the probation regimen — but indefinite prison sentences may be “draconian.”
Justice Monica M. Márquez wondered whether the current ability of plea agreements to take lifetime prison sentences off the table would morph into something less desirable if the Court were to outlaw combination sentences.
“As a practical matter going forward with plea deals, prosecutors are going to be disinclined to engage in plea agreements. And trial courts, faced with an all or nothing choice, might err on the side of sending more defendants to [the Department of Corrections],” she said.
“If it’s illegal, it’s illegal,” responded public defender David Rosen on behalf of Keen, adding that it does not take a lifetime of incarceration to rehabilitate a sex offender through treatment.
Colleen Kelley, the attorney for Manaois, told the justices the solution is not a potential lifetime prison sentence, but rather a different set of charges that carry an appropriate penalty.
“If the district attorney’s office does not believe that this person in this particular situation deserves an indeterminate prison sentence, then they are perfectly free to dismiss those charges that carry the indeterminate sentence,” she said.
The court will also opine on whether the guilty pleas are invalid if the sentences are deemed illegal.
Anderson, the bill sponsor, told Colorado Politics on Wednesday prosecutors appeared to be “letting them off” by agreeing to probation for defendants’ sex crimes, which was not her intention.
“We always assumed, I think, that DAs would use the sex offense as the first crime because that’s the crime that is more offensive to the public,” she said.
There have been other disconnects between SOLSA as written and SOLSA in practice.
In 2016, the state reported that there were 2,314 people who received Department of Corrections supervision pursuant to SOLSA. Over time, the percentage of lifetime sex offenders in Colorado's prison population rose from 1% in 2001 to nearly 9% 15 years later. The Denver Post noted in 2013 that the Board of Parole had not released a single person subject to SOLSA in the six years after the law took effect, and that wait lists for treatment were long.
One judge in Colorado Springs, who had sentenced multiple defendants pursuant to SOLSA with the expectation they would receive treatment, discovered the Department of Corrections had prevented one such inmate from enrolling for five years. The department's actions "made a liar out of me," the judge said in 2011.
Regardless of SOLSA's implementation, Kelley urged the justices to find that sex offender lifetime sentences were subject to the same "either/or" limitation as in Allman.
"The act in no way intended to create an entirely separate sentencing scheme," she said.
The cases are People v. Manaois and People v. Keen.