Colorado Sentencing Reform: Homicide

In Colorado, there are types of homicide which can be a basis for criminal penalties. They are:

* Murder in the first degree, a class 1 felony punishable by life in prison without possibility of parole or death. CRS 18-3-102. First degree murder must be one of the following: (1) intentional and premeditated, (2) in connection with certain felonies, (3) an execution procured through perjury, (4) produced by extreme indifference to human life, (5) a child under age eighteen dies from using illegal drugs sold to the child on school grounds, or (6) a child under age twelve is knowingly killed a person in a position of trust.
* Murder in the second degree, a class 2 felony punishable by 16-48 years in prison plus 5 years of mandatory parole in the usual case, and a class 3 felony punishable by 8-24 years in prison plus 5 years of mandatory parole when committed in the heat of passion after provocation. CRS 18-3-103. A second degree murder must be committed knowingly.
* Manslaughter, a class 4 felony punishable by 2-6 years in prison and 3 years of mandatory parole, or 4-12 years in prison and 3 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact. CRS 18-3-104. Manslaughter must either involve recklessly causing a death, or involving intentionally causing or aiding another person to commit suicide.
* Criminally negligent homicide, a class 5 felony punishable by 1-3 years in prison and two years mandatory parole. CRS 18-3-105. Criminal negligence homicide must involve criminal negligence.
* Vehicular homicide, a class 4 felony punishable by 2-6 years in prison and 3 years of mandatory parole, or 4-12 years in prison and 3 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact, if caused by reckless driving (the same as manslaughter), and a class 3 felony punishable by 4-12 years in prison plus five yeas of mandatory parole, or punishable by 8-24 years in prison plus 5 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact, if the driver was legally drunk or under the influence of drugs without regard to intent.

On the whole this is a reasonable fair way to grade homicides. But, the first degree murder statute is inappropriately harsh for several types of homicide that it covers, and is too lenient in one case. My suggestions are as follows:

1. First Degree Murder – Affirmative Defense To Felony Murder. CRS 18-3-102(2).

* Expand Affirmative Defense To Felony Murder in CRS 18-3-102(2).

Proposal:

Currently, everyone who participates in the crimes of arson, robbery, burglary, kidnapping, sexual assault, or escape, is guilty of first degree murder if a non-participant dies in the course of the crime or immediate flight therefrom, regardless of who causes the death. In short, it imposes vicarious death penalty liability on all participants in the crime regardless of their intent.

An affirmative defense is allowed if there were other participants in the crime, that person didn't commit or call for the homicide, the person was unarmed, the person had no reason to believe anyone else was armed, the person didn't intent to and didn't believe that anyone else was likely to do something resulting in death or serious bodily injury, and he tried to disengage when he learned that someone else had a deadly weapon or was likely to cause death or serious injury.

Shorter version: There is an affirmative defense if you had no reason to think anyone would get hurt and tried to get out of participating when you learned otherwise.

Keep: (a) not the only participant, (b) didn’t cause or solicit, request, cause or aid homicide, (c) not armed with a deadly weapon, and part of (e) stating "did not engage himself in or intend to engage in . . . conduct likely to result in death or serious bodily injury."

Remove: (d) No reasonable grounds to believe that any other participant was armed; part of (e) has no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury; (f) disengaged about discovering others armed or intended to engage in.

Why? Minor, non-combatant players are bad, but not felony murder, irredeemably bad. Case in point: People v. Auman. Mere association with bad people does not make culpability rise that much, although it may justify sentencing at the high range of the underlying serious felony offense.

Conspiracy to murder (which would be a class 2 felony), is still available in appropriate cases. Conspiracy is established when ”with the intent to promote of facilitate its commission, he agrees . . . that they . . . will engage in conduct which constitutes a crime . . . or to aid the other person . . . in the planning or commission of a crime[.]” Conspiracy is an offense one level below the offense you conspired to commit.

2. First Degree Murder – Drug Deal Related Deaths. CRS 18-3-102(1)(e).

* Downgrade drug deal related deaths from sales to minors to manslaughter, and eliminate the requirement that drugs be sold at school.

Proposal:

Transfer CRS 18-3-102(1)(e) (deaths resulting from sale of drugs to minors on school grounds) from first degree murder statute to manslaughter statute as a new CRS 18-3-104(1)(c).

Also, remove the language of existing 18-3-102(1)(e) to limit the offense to situations when the drug transaction takes place “on school grounds as provided in section 18-18-407(2)”.

Why?

First part: Eliminating the requirement to prove intent by basically saying that any death in that situation is conclusively presumed reckless, which this would do, is reasonable. But, this situation isn’t as culpable as premeditated murder. The vast majority of the time, illegal sales of drugs to minors do not result in death, and to scapegoating someone who happens to be the one guy in a hundred whose young customer ends up dead from an overdose is as irredeemable as an assassin or serial killer or murder-rapist, is overkill.

Second part: Selling drugs to a minor is no less culpable if it is done in a public park or across the street from a school or a recreation center or a church or a movie theater, than it is when done on school grounds.

3. First Degree Murder – Children Killed By Persons In A Position Of Trust. CRS 18-3-102(1)(f).

* Downgrade knowing murders of children by persons in a position to trust to second degree murder.

Proposal:

Strike CRS 18-3-102(1)(f) which provides that first degree murder is committed if a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

This has the effect of making a crime under CRS 18-3-102(1)(f), instead a crime under CRS 18-3-103(1), which is second degree murder, without further statutory amendment. The maximum sentence for second degree murder is 48 years. The minimum sentence for second degree murder is 16 years. A defendant can get no more than a 25% sentence reduction for earned time when sentenced for second degree murder. Thus, the minimum sentence if there is good behavior in prison for a second degree murder convict ranges from 9 to 36 years, depending on the sentencing judge’s decision. A lower sentence can be imposed in cases involving th heat of passion after a highly provoking act.

Why? It is still possible to impose a very long sentence for second degree murder. But, significant mitigating considerations are present for many murders in category CRS 18-3-102(1)(f), and a sentencing judge should not be deprived of all opportunity to offer mercy (as is the case in a first degree murder case). Likewise, someone who commits a crime in CRS 18-3-102(1)(f) is rarely beyond all redemption, such as the public needs to be protected by life in prison without parole or a death sentence.

Your typical defendant under CRS 18-3-102(1)(f) will include inexperienced first time mothers who cause a neonatal death, a parent in an extremely stressful situation with many kids who snaps in the sudden heat of passion, and the like. While some defendants may deserve long sentences associated with typical second degree murders (the average sentence in Colorado for second degree murder is 33 years with possibility of parole after 75% of the sentence has been served if there has been good behavior in prison), a judge should have the flexibility to impose a sentence as low as the mandatory minimum for second degree murder which is 9 years when earned time is taken into account.

Nine years is still a very serious sentence in a case where there are so many mitigating factors that a judge imposes a minimum sentence. Similarly, when there are serious aggravating factors such that the judge feels inclined to impose a maximum sentence of 48 years, the fact that the defendant will return to society no sooner than 36 years later is enough to protect society.

4. First Degree Murder – By Lifers. CRS 18-3-102(1).

* Making knowing murders by lifers eligible for the death penalty.

Proposal:

Add a new paragraph to subsection (1) of first degree murder statute that applies “if a person in prison who is serving a sentence of life imprisonment, with or without possibility of parole, or any other sentence with a possibility of parole at a date after the date when that person would die if that that person lived a length of time equal to their life expectancy at the time the crime is committed, unless the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person, but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the exception for a sudden heat of passion shall not apply.”

Why? The possibility of the death penalty is appropriate to serve a deterrent when no other punishment can serve as a meaningful deterrent.

5. Neonatal Murders.

* Mothers who have given birth in the last 36 hours should be conclusively presumed to have acted with an intent that is not more than reckless in homicide cases.

Proposal: This is a limited exemption from second degree murder liability for women who are technically knowing when they kill, but are in extreme circumstances in the throes of childbirth and should not be held to the same standard. Note that this does not change the criminal liability of a partner or other person present who did not experience the childbirth. It would be appropriately included in CRS 18-3-101 in the definition of "after deliveration" and "knowingly".

Why? Sentencing approaches in these cases vary dramatically, even when the facts are very similar, and the decision should be made by the legislature, not by individual prosecutors. Under current law, neo-natal homicides by mothers are routinely charged as first degree murder in some jurisdictions. But, this change still allows a charging decision, and a lesser included offense determination by a jury of reckless homicide, criminally negligent homicide or no criminal offense.

A woman who has just experienced child birth, quite likely in a neonatal homicide case, alone, is extremely exhausted, has experienced intense pain for prolonged period of time, is physically depleted, is experiencing unfamiliar and intense hormonal effects, and is, in short, not in her right mind. Culpability in these cases is lower than in cases where a child is abused and killed long after a child birth. Again, lesser culability does not mean no culpability in cases like these.