Major 2010 Colorado Criminal Justice Reforms

My earlier summary of major criminal justice legislation in the 2010 session missed some important ones which the Colorado Criminal Justice Reform Coalition noticed. I reprint their press release (in part) belows:

2010 Legislative Summary . . .

HB 1023: Concerning Clarifying Civil Liability Regarding Negligent Hiring Practices for an Employer That Hires a Person with a Criminal Record
Sponsors: Representative Waller (R) and Senator Hudak (D); co-sponsors include Representatives Gagliardi (D), Kagan (D), Kefalas (D), Summers (R) and Senators Boyd (D), Sandoval (D), Scheffel (R), and White (R)
Status: HB 1023 passed unanimously out of the House of Representatives and the Senate and was signed into law by Governor Ritter on March 25, 2010.

Description: HB 1023 was based on a recommendation from the Economic Opportunity and Poverty Reduction Task Force, an interim legislative task force that CCJRC actively participated in. This law limits the admissibility of evidence of an employee’s criminal history in a civil action against an employer where: (1) the criminal history did not have a direct relationship to the underlying cause of action in the civil case, (2) the criminal record was sealed prior to the acts underlying the cause of action, (3) the criminal history consists of an arrest that did not lead to a criminal conviction, (4) the conviction received a pardon, or (5) the defendant successfully completed a deferred judgment.

HB 1112: Concerning the “Correctional Education Program Act of 1990”
Sponsors: Representative Miklosi (D) and Senator Newell (D)
Status: This bill was passed by the House of Representatives on a 50-13 vote and passed by the Senate on a 31-4 vote. It was signed into law by Governor Ritter on March 31, 2010.

Description: Representative Miklosi was inspired to sponsor this legislation after reading a report issued by CCJRC in August 2009 that revealed a number of deficiencies in vocational programming offered in DOC. This law sets performance objectives for vocational programs in the Department of Corrections to include that vocational programming be more market-relevant, that participation in programs be considered prior to an inmate’s transfer to another facility, and that DOC include information about vocational programs in its annual report to include vocational programs offered, program enrollment, and completion rates.

HB 1352: Drug Sentencing Reform
Sponsors: Representative Waller (R) and Senators Steadman (D) and Mitchell (R)
Co-sponsors: Representatives Pace (D), Court (D), Gardner, B. (R), Gerou (R), Kagan (D), King S. (R), Levy (D), Looper (R), Massey (R), May (R), McCann (D), Miklosi (D), Nikkel (R), Roberts (R), Ryden (D) and Stephens (R) and Senators Carroll, M.(D), Hudak (D), Morse (D), Newell (D), Penry (R), and White (R)
Status: Passed the House (58-5) and the Senate (30-5) and is awaiting action by Governor Ritter.

Description: This bill is based on recommendations approved by the Colorado Commission on Criminal & Juvenile Justice. CCJRC participate in the Commission’s drug policy task force that developed these recommendations. It reduces penalties for the crime of drug use or possession and redirects cost savings in corrections to substance abuse and mental health treatment. The bill also creates enhanced penalties for adults convicted of selling drugs to a minor. The bill also makes two changes to the special drug offender statute (which has an increased sentence range) to exclude “simple possession” from the crime of drug importation and requires a closer nexus to prove that a weapon was used during a drug offense. The bill appropriated the anticipated first year cost savings in averted incarceration costs (approximately $1.5 million) to expand funding for substance abuse treatment for people in the criminal justice system.

HB 1360: Reducing Revocations for Technical Violations
Sponsors: Representative Pace (D) and Senator Steadman (D)
Status: Passed the House (54-9) and Senate (24-11) and is awaiting action by Governor Ritter.

Description: CCJRC worked in close collaboration with the Colorado Criminal Defense Bar, the state Public Defender, and the Colorado Behavioral Healthcare Council on this bill. The bill requires the parole board to consider the treatment needs (substance abuse and/or mental health) prior to revoking parole for a technical violation. If the parolee is amenable to treatment and if it is consistent with public safety, the parole board may modify the conditions of parole (in lieu of revocation) and require participation in a residential or outpatient treatment program. The bill reduces the maximum time a revoked parolee can be re-incarcerated in prison for a technical parole violation to 90 days (from the current statutory cap of 180 days) if the parolee was assessed as lower than high risk using a research-based risk assessment instrument and the parolee’s underlying conviction was not for a crime of violence, menacing, or stalking. The current 180-day statutory limit on the period of re-incarceration will be retained when the parolee is assessed as high risk or is revoked to a community return to custody facility or community corrections facility. The bill also expands eligibility for placement in a community return to custody facility for a parolee revoked for a technical violation if the underlying conviction was for a class 4 felony, excluding crimes of violence and stalking. First year cost savings from this bill in averted incarceration costs (approximately $4.5 million) was allocated for re-entry support and treatment services for parolees as part of the 2010-11 state budget.

HB 1374: Changes to Parole
Sponsors: Representative Ferrandino (D) and Senator Penry (R)
Status: Passed the House (63-0) and Senate (35-0) and is awaiting action by Governor Ritter.

Description: This bill is based on recommendations from the Commission on Criminal & Juvenile Justice that: (1) changes the statutory parole guidelines and requires the parole board to use structured decision-making in both release and revocation hearings; (2) requires the parole board to make an annual presentation before the House and Senate judiciary committees; (4) clarifies eligibility for the enhanced earned time that was created last year in HB 09-1351; and (5) repeals some archaic language in statute that mandates the arrest of a parolee under certain circumstances (e.g., if the parolee is in a county where there is a correctional facility without permission of the parole officer).

SB 06: Concerning Reductions in Barriers to Obtaining Identity-Related Documents
Sponsors: Senator Boyd (D) and Representative Summers (R); co-sponsors include Senators Hudak (D), Sandoval (D), White (R) and Representatives Gagliardi (D), Kefalas (D), and Waller (R)
Status: Passed the House (48-16) and Senate (22-12) and is awaiting action by Governor Ritter.

Description: SB 06 was based on a recommendation from the Economic Opportunity and Poverty Reduction Task Force, an interim legislative task force that CCJRC actively participated in. Among other things, SB 6 waives the payment of the fee to obtain an identification card for those referred by a county department of social services or those referred by a county jail, the Department of Corrections, or the Division of Youth Corrections. The bill also restores the authority of a district court to allow a person with a criminal record to legally change their name if such name change is necessary to obtain an identification card. Prior to ordering the name change, the petitioner must meet multiple requirements and interested parties must be notified.

SB 159: Concerning Defendant Statements at a Community Corrections Hearing
Sponsors: Senator Foster (D) and Representative Miklosi (D)
Status: Passed the House (65-0) and Senate (33-0) and is awaiting action by Governor Ritter.

Description: SB 159 makes it mandatory that a community corrections board accept a written statement from an inmate if it is timely submitted by the inmate to the DOC case manager so that it can be included in the initial electronic referral made by DOC to a community corrections board. Community corrections boards will have the discretion whether to accept a written or oral statement by a third party on behalf of an inmate. Community corrections boards will be required to develop written policies that are publicly accessible regarding written statements or oral presentations by victims or inmate representatives regarding an inmate’s transitional referral to community corrections.

SB 179: Changes in voting requirements
Sponsors: Senator Steadman (D) and Representative Weissmann (D)
Status: This bill passed the Senate (20-15) but failed on second reading in the House after the Governor informed the House sponsor that he would veto the bill. CCJRC was very frustrated with this outcome and will continue to advocate for the enfranchisement of people on parole.

Description: This bill would have restored voting eligibility for people on parole, would have clarified that people in community corrections as diversion clients are eligible to vote, and would have required criminal justice supervision agencies (jails, DYC, community corrections, probation, and parole) to have information available to clients regarding voter eligibility, voter registration, and voting.
Bills CCJRC Supported . . .

HB 1090: Concerning the Punishment for a Person Who Is Convicted of Driving a Motor Vehicle with Knowledge That His or Her Driver’s License Is Under Restraint
Sponsors: Representative Waller (R) and Senator Morse (D)
Status: This bill was passed by the House of Representatives on a 57-6 vote and passed in the Senate on a 35-0 vote. It was signed into law by Governor Ritter on March 29, 2010.

Description: This bill was spearheaded by the Colorado Criminal Defense Bar and the state Public Defender. This bill eliminates the mandatory 5-day jail sentence for a person who is convicted of driving a motor vehicle or off-highway vehicle upon any highway of the state with knowledge that his license or privilege to drive is under restraint for any reason other than conviction of driving under the influence (DUI), driving while ability impaired (DWAI), or underage drinking and driving.

HB 1201: Concerning Duties Related to Peace Officer Contacts
Sponsors: Representative Middleton (D), T. Carroll (D), Ferrandino (D), McFadyen (D), Miklosi (D), Pace (D), Vigil (D), and Weissman (D) and Senator Steadman (D)
Status: The bill passed the House (37-28) and Senate (35-0) and was signed into law by Governor Ritter on April 29, 2010.

Description: HB 1201 was developed by the Colorado Progressive Coalition which also organized a broad coalition that supported the bill through a complicated legislative process. This new law requires that, prior to conducting a consensual search of a person, personal effects, or vehicle, a peace officer shall first advise the person that they are being asked to voluntarily give consent to search and may refuse the request. After such advisement, a peace office may only conduct the search if the person subject to the search gives either oral or written consent. This new law does not apply to a valid search incident to a lawful arrest or to a search for which there is a legal basis which includes, but is not limited to, searches in correctional facilities, jails, community corrections facilities, mental health facilities or searches of a person on probation or parole by a probation or parole officer when such searches are a condition of supervision.

HB 1338: Concerning the Eligibility for Probation of a Person Who Has Two or More Prior Convictions
Sponsors: Representative McCann (D) and Senator Steadman (D)
Status: Passed the House (54-7) and Senate (24-11) and is awaiting action by Governor Ritter.

Description: This legislation is based on a recommendation approved by the Commission on Criminal & Juvenile Justice. It changes the two-prior felony statute that makes a defendant with two prior felonies ineligible for probation without the district attorney’s consent. This bill requires district attorney consent only if the current charge or one (or more) of the prior convictions was for a specific offense including: first or second degree murder, manslaughter, first or second degree assault, first or second degree kidnapping, sexual offense, first degree arson, first or second degree burglary, robbery, aggravated robbery, or a felony offense against a child.

HB 1373: Sentencing Changes For Escape Crime
Sponsors: Representative T. Carroll (D) and Senator Hudak (D)
Status: Passed the House (58-7) and Senate (19-16) and is awaiting action by Governor Ritter.

Description: This bill is based on a recommendation approved by the Commission on Criminal & Juvenile Justice. Under current law, a broad range of scenarios can be considered escape which requires the court to impose a mandatory consecutive sentence. HB 1373 excludes diversion clients in community corrections and parolees on intensive supervision from the mandatory consecutive sentencing requirement if convicted of escape, although judges retain the authority to impose a consecutive sentence in any given case. People on “inmate status” will still face the mandatory consecutive sentence, which includes people in secured correctional facilities, work release, and transition clients in community corrections.

HB 1413: Concerning Juveniles Who Are Tried as Adults, and Making an Appropriation in Connection Therewith.
Sponsors: Representatives Levy (D) and May (R) and Senators Newell (D) and Lundberg (R)
Status: Passed the House (55-8) and Senate (27-8) and is awaiting action by Governor Ritter.

Description: This bill was spearheaded by the Colorado Criminal Defense Bar, the Colorado Juvenile Defender Coalition, the Pendulum Foundation, the state Public Defender, and other organizations. For purposes of direct file, the bill increases the minimum age of the defendant from 14 to 16 years, except in those cases where the defendant is charged with first degree murder, second degree murder or a sex offense. At least 14 days prior to filing the charges in district court, the district attorney must file the charges in juvenile court with a notice of decision on direct file. The bill lists the criteria that the district attorney must consider in determining whether to file charges in adult court against a juvenile. The district attorney must submit a written statement listing the criteria relied upon in deciding to direct file. The bill also permits a juvenile convicted in district court of a class 2 felony (non sex offense) to be eligible for sentencing to the youthful offender system.

SB 189: Concerning Authorization for Government Agencies to Approve Clean Syringe Exchange Programs to Reduce the Spread of Blood-Borne Disease
Sponsors: Senator Steadman (D) and Representative Weissmann (D)
Status: Passed the House (57-6) and Senate (24-10) and is awaiting action by Governor Ritter.

Description: This bill was an amazing effort by a broad coalition of advocates, health workers, doctors, and law enforcement. The Harm Reduction Project played a major coordinating role along with the IDU Community Collaborative, Denver Drug Strategy Commission, and the Public Health Directors of Colorado. The bill gives authority to a county board of health or district board of heath to approve a clean syringe program proposed by county or district public health agency provided that certain procedures are followed and community stakeholders are consulted. One or more counties represented on a district board of health may at any time opt out of a proposed or approved program. An employee or volunteer of such program will be exempt from drug paraphernalia laws.

SB 193: Concerning the Safe Treatment of Pregnant Persons in Custody
Sponsors: Senator Hudak (D) and Representative Levy (D)
Status: Passed the House (62-1) and Senate (34-0) and is awaiting action by Governor Ritter.

Description: This bill was initiated by the insistence and determination of Pamela White, the current editor of the Boulder Weekly and supported by a broad coalition including COLOR (Colorado Organization for Latina Opportunity & Reproductive Rights), Colorado Association of Midwifes, The Haven, the ACLU, and the Colorado Bar Association-civil rights task force. The bill limits the use of restraints on pregnant women in custody or confined in prisons, city/county jails, juvenile detention, or department of human services facilities. Corrections staff will not be permitted to use restraints of any kind on a pregnant woman during labor and delivery unless exceptional circumstances exist. Correctional staff is required to use the least restrictive measures of restraint during postpartum recovery and transport to/from the medical facility.
Other criminal justice reform bills

HB 1065: Concerning a Prohibition Against Counting Any Time a Juvenile Spends on Escape Status Toward Completion of the Juvenile’s Commitment
Sponsors: Representative McCann (D) and Senator Tochtrop (D)
Status: Passed by the House on a vote of 63-0 and passed the Senate on a vote of 33-0. The bill was signed into law by Governor Ritter on March 18, 2010.

Description: If a juvenile committed to the Department of Human Services escapes from a facility, the time the juvenile is on escape status will not be counted toward service of the term of the commitment.

HB 1081: Concerning Money Laundering
Sponsors: Representative Priola (R) and Senator Steadman (D)
Status: Passsed the House (62-1) and Senate (34-0) and is awaiting action by Governor Ritter.

Description: HB 1081 is based on a recommendation approved by the Commission on Criminal & Juvenile Justice. Under current law, the crime of money laundering is limited to the Controlled Substances Act. The bill relocates the money laundering statute from the Controlled Substance Act to the fraud statute and includes money laundering in the definition of racketeering activity for purposes of prosecution under the Colorado Organized Crime Act.

HB 1089: Concerning Placement After a Parole Revocation of a Parolee Who Is A Sexually Violent Predator
Sponsors: Representative Waller (R) and Senator Newell (D)
Status: HB 1089 was passed by the House of Representatives on a 64-0 vote and passed by the Senate on a vote of 34-0. The bill was signed into law by Governor Ritter on March 31, 2010.

Description: Under current law, a parolee who is revoked from parole for a technical violation and who is under sentence for a conviction of a nonviolent class 5 or class 6 felony must be placed in a community return to custody facility (CRCF), which are DOC contract beds in community corrections facilities. This law authorizes the parole board to send an otherwise CRCF eligible parole violator to prison for a technical parole violation if s/he was designated a sexually violent predator.

HB 1104: Veterans’ Treatment Court
Sponsors: Representative Looper (R) and Senator Williams (D)
Status: HB 1104 was approved by the House on a vote of 64-0 and approved by the Senate on a vote of 34-0. The bill was signed into law by Governor Ritter on April 16, 2010.

Description: The bill authorizes the state court administrator to apply for federal grant funds on behalf of the state for the establishment, maintenance or expansion of veterans’ treatment courts. The bill also authorizes the chief judge in the judicial district to establish a program for the treatment of veterans and members of the military.

HB 1109: Concerning the Availability of Workers’ Compensation to Jail Inmates Who Are Working For a Program That Has Been Certified By the Federal Prison Industry Enhancement Certification Program
Sponsors: Representative McCann (D) and Senator Mitchell (R)
Status: HB 1109 was approved by the House on a vote of 46-18 and approved by the Senate on a vote of 35-0. The bill was signed into law by Governor Ritter on May 3, 2010.

Description: Federal law requires that in order to participate in the federal prison industry enhancement certification program (PIECP), inmates in the program must have workers’ compensation benefits available to them. HB 1109 complies with this federal law by requiring PIECP to carry workers’ compensation insurance and defining a jail or department of corrections inmate participating in a PIECP as an employee of that program for purposes of workers’ compensation eligibility. Public entities are permitted to select more than one method of workers’ compensation insurance.

HB 1215: Concerning the Use of Cash Bond Deposits After the Discharge of the Bond To Satisfy Outstanding Court-Ordered Debts
Sponsors: Representative Waller (R) and Senator Scheffel (R)
Status: HB 1215 was approved by the House on a vote of 63-1 and approved by the Senate on a vote of 34-0. The bill was signed into law by Governor Ritter on April 15, 2010.

Description: When a defendant deposits funds with the court for purposes of making bond, HB 1215 allows a court to apply these funds toward the payment of fines, fees, costs, and surcharges assessed against the defendant. If the depositor is someone other than the defendant, the law would allow the court to apply the funds toward payment of court-ordered debt with written consent of the depositor. If the amount of the deposit is greater than the amount owed, any balance will be returned to the depositor.

HB 1277: Concerning An Extension of the Prohibition Against Sexual Conduct in Correctional Institutions
Sponsors: Representative DelGrosso (R) and Senator Steadman (D)
Status: Passed the House (63-0) and Senate (34-0) and is awaiting action by Governor Ritter.

Description: Current law prohibits and makes it a crime for an employee or volunteer of a correctional facility to have sexual activity with an inmate. HB 1277 extends that prohibition to any detention facility, commitment facility, or community corrections program housing juveniles.

HB 1347: Concerning Misdemeanor Penalties for Persons Who Are Convicted of Multiple Traffic Offenses Involving Alcohol or Drugs
Sponsors: Representative Levy (D) and Senator Morse (D)
Status: Passed the House (64-0) and Senate (33-1) and is awaiting action by Governor Ritter.

Description: HB 1347 is based on recommendations approved by the Colorado Commission on Criminal & Juvenile Justice. It adjusts the penalties for a second offense of DUI, DWAI, and driving as a habitual user of a controlled substance and creates a new set of penalties for a third or subsequent offense. On a second offense, the minimum jail term is set at 10 consecutive days (up to 1 year). If the second offense is within five years of the first offense, the defendant is not eligible for home detention in service of the 10-day mandatory jail term but is eligible for work release or treatment release if he or she was already employed or engaged in treatment prior to incarceration and if the jail allows work/treatment release. For a third or subsequent conviction (in lifetime), the minimum jail term is set at 60 consecutive days (up to 1 year). Home detention is not a sentencing option. All repeat DUI offenders must complete at least two years of probation and as a condition the court must impose a suspended one-year jail sentence, all or part of which may be imposed if the offender violates a condition of probation. Increases the persistent drunk driver surcharge from $50 to $100- half of the revenues will be deposited into the persistent drunk driver fund and the other half into the newly created court-ordered alcohol treatment fund. A first-time DUI offender with a blood-alcohol level of .20 or higher will also be subject to the mandatory 10-day sentence.

SB 54: Concerning the Provision of Educational Services For Juveniles Against Whom Charges Have Been Filed in District Court
Sponsors: Senator Hudak (D) and Representative Levy (D)
Status: Passed the House (52-13) and Senate (18-15) and is awaiting action by Governor Ritter.

Description: The bill requires a school district to provide educational services during the school year to a juvenile being held, pending charges as an adult, in a jail within the school district. The school district is also required to comply with the “Individuals with Disabilities Education Act” if the juvenile has a disability. There are a number of exceptions to this requirement.