Punishment for sex offenses in Colorado is harsh. At the root of this system is the presumption that adult sex offenders cannot be cured. So, lengthy treatment with containment is the model. Once an individual pleads guilty to a sex offense (generally a reduced charge by “plea bargain”) or is found guilty by a jury in Denver, Arapahoe, or Jefferson County, the court must impose a sentence. Options for the court include prison, community corrections, county jail, probation with county jail, or straight probation. Sentencing is where the judge decides the appropriate sentence for the crime which the jury, or they themselves, found you guilty. Unfortunately, this phase of the criminal justice system is biased greatly toward the alleged victim’s testimony, as well as family members of the alleged victim, District Attorneys, and probation officers. When a plea agreement has been reached and you have plead guilty, the terms of the agreement usually mean there is no surprise with sentencing. But, when open sentencing following a guilty verdict at trial is the case, I advise my clients to prepare themselves for the worst-case scenario, because they could be given the maximum sentence for their offense.
How Judges Limit their Risk at Sentencing
Judges in County and District Courts across Colorado carry a lot of responsibility and stress; they must sentence people who have been found guilty of sexual offenses like Sexual Assault, Unlawful Sexual Contact and Sexual Exploitation of a Child in Adams, El Paso, and Douglas County. Unfortunately, much of this stress is due to pressure – they want to please the public (who can vote to retain them as a judge during an election), but they also cannot sentence everyone to prison (jails and prisons are too full). If a judge sentences someone too harshly, it can reflect badly on their careers. But, if they sentence someone lightly who later re-offends, this too can reflect badly on their future. Because of this, judges consult with professionals to determine and “back-up” their sentence. They consult with specialists, treatment providers, and probation officers to determine the sentence, and then they share the responsibility.
PSI Report: The Probation Officer’s Role at Sentencing
Before the sentencing hearing, a judge will request a presentence investigation report from the probation department in Boulder or Moffat County. In order to create this report, a probation officer will look closely at the defendant and his case, and provide recommendations to the judge for sentencing. Many facets of the defendant’s life will be scrutinized, such as their criminal history, alcohol and substance abuse evaluations, their statement about the facts of the case, mental health evaluations, police reports, possible sentence ranges, and their own personal feelings about the case. In this way, the probation department shares the burden and responsibility with the judge.
Professional Opinion: Input for the Judge at Sentencing
Other professionals the judge will call upon to give an opinion are psychologists, therapists, counselors, treatment providers, psychiatrists, and others who will evaluate a defendant, prepare a report, and give it to the judge before sentencing. For example, a psychologist might interview the defendant and then write a report advising the judge of treatment needed to lessen the likelihood a person will reoffend. It is always helpful for the court to learn whether or not the crime was committed by a person with a treatable condition (such as a drug addiction requiring rehab).
Role at Sentencing
During the sentencing hearing, the judge will always ask for a sentencing statement from the District Attorney in Baca, Montrose, or Pueblo County. During this statement, the prosecutor will gather all the negative information they have on the defendant in order to get the harshest sentence possible. They are representing the alleged victim, and therefore often request financial restitution as well.
The Alleged Victim and
Their Family at Sentencing
During sentencing, one of the most dangerous things is the testimony of the alleged victim. This statement is usually tearful and emotional. Some victims are reasonable, and want the best possible outcome for the defendant to get the help they need. But, sometimes the alleged victim and their family are revengeful, and work hard to convince the judge to sentence harshly to the Department of Corrections.
The Role of the Defense at Sentencing
An expert criminal defense attorney represents the defendant at sentencing in Gilpin, Grand, or Pitkin County. It is wise to work with a full time criminal defense lawyer, because he or she will understand the process and will know the best course to take at sentencing. As seasoned criminal defense lawyers, we know there are reasonable and unreasonable requests to make to the judge, under the law. We work hard to evaluate your case so that we can support a request for the lowest sentence possible. We gather evidence to prove our point by working with professionals who can provide their opinions which counter the opinions of the prosecution. We also have family members and friends of the defendant speak on their behalf at sentencing. The most important aspect of sentencing is to advise our clients to accept full responsibility for their conduct. It is important to make a genuine statement which shows you are not shifting any blame to the victim. During this time, defendants can also provide their reasons why they shouldn’t be sentenced to jail or prison. These often include the need to stay employed to provide for family expenses.
Sentencing Options for Judges
According to sentencing laws in Colorado, a judge is able to give a defendant incarceration or probation at sentencing. Let’s take a look at all the options involved.
If a judge chooses probation, he or she can set any condition which is “reasonably related” to the rehabilitation of the defendant. This includes any treatment or restriction which would help the defendant not to reoffend, including:
- Drug, Alcohol, Mental Health, or Sex Offender Treatment
- Community Service
- Empathy Classes (e.g. Mothers Against Drunk Drivers – MADD)
- GPS Monitoring
- Seeing a Probation Officer
- Restraining and Protection Orders
- Court Fines and Costs
- Jail Time up to 60 days (for a misdemeanor) and 90 (for a felony), or 2 Years of Work Release
– Probation Supervision is Very Strict with Sex Offenders
Probation sentences in Denver, Lakewood, Centennial and Brighton, Colorado, involve the defendant meeting with a probation officer at regular intervals. During these meetings, the probation officer will determine a course of rehabilitative classes for the probationer to take, and otherwise manage the probationer’s life. At the beginning of probation, the officer will require frequent visits or call-ins, testing and other restrictive conditions. Very slowly, as the probationer builds trust with their probation officer, frequency and restrictive conditions decrease. It is important for the probationer to strictly follow their officer’s direction early on, in order to build trust and avoid a revocation. A revocation results when the probation officer feels the probationer has violated terms and conditions of probation. In sex offense cases, defendants will generally be required to serve Sex Offender Intensive Supervised Probation (SOISP). This SOISP will be served with a sex therapist working hand-in-hand with the probation officer. The probation officer is the boss in this relationship, but they will take input from the sex offender treatment provider very seriously. It is VERY easy to violate sex offender probation, particularly when placed with an already angry probation officer or uncaring treatment provider. We have seen vindictive and angry probation officers mainly in Arapahoe County. Probation officers and providers will rely heavily on polygraph examinations and other tests. A failure on these tests will generally lead to revocation of the probation.
While a defendant does not get to choose their probation officer, if proper planning is done early in the case, they can influence which treatment program they will likely work with. The defendant must remember that a failure at probation or in treatment will generally result in a prison sentence being imposed. Prison sentences for sex offenders are generally indeterminate. The important conclusion for a defendant to remember is to walk the strict line set by probation and treatment, regardless of whether the defendant agrees with the conditions imposed.
Jail or Prison
There are only a few options if a judge chooses incarceration as a sentence. Incarceration in a county jail is normal for misdemeanors and a few felony convictions. Prison is common for felony convictions. Alternatives to jail or prison time are as follows:
- Community Corrections (for felony convictions). Community Corrections is like a halfway house
- In-Home Detention for less-serious crimes
Sentencing ranges for prison or jail time are pre-set under Colorado law. Crimes of violence, including sex offenses, have mandatory minimum sentences. And some sex crimes are subject to indeterminate sentencing, which means there would be not upper limit to how long a person could spend in prison.
– The Community Corrections Option
A felony sentence within the community is referred to as “community corrections”. This type of sentence is often referred to as a half-way house sentence. The normal route to arrive here is for a court to authorize screening for this type of sentence, and then a local board made up of community representatives decides if they want the defendant in their program. The main advantage to a defendant is that this is an alternate sentence to prison, and the defendant is allowed to work in the community. For a portion of the sentence, the defendant will live in a residential program house, where case managers oversee the defendant’s progress in treatment and in keeping restrictions placed by the court. Many community corrections boards are unwilling to assume the risk of having a sex offender under their care due to the political fallout if the defendant reoffends while under their supervision.
– County Jail is a Minimal Time Punitive Sanction
County jail sentences are served in the county where the offense was committed. A defendant can receive a sentence to county jail up to 90 days straight time, or two years work release, as a condition of probation in a felony matter, or up to 60 days straight time as a condition of probation with a misdemeanor. “As a condition of probation” means the court imposes a probationary sentence and then adds a jail sentence to the probation term. So, it is realistic that the defendant could serve an extensive probation sentence, of say ten years, and also have to serve a county jail sentence at the start of the probation term. This method of combining probation and county jail is mostly used when a court feels the offense is deserving of some punitive sanction beyond probation, but not to prison. When a defendant is employed, the court will often give the defendant a sentence to work release so the defendant can still pay his bills and support obligations. A work release sentence is not seen as quite so punitive as a straight county jail sentence, so the length will be increased to compensate.
Misdemeanor sex pleas can result in straight jail time for as much as two years. Other options for the judge in a misdemeanor case include home detention, work release, or a treatment facility.
– Circumstances Requiring Mandatory Prison
A sentence to prison from a Denver County or Jefferson County court is only possible with a felony conviction, and is generally reserved for sex offenses where the defendant falls into a mandatory prison sentence range, where the defendant is high risk, where the defendant is a repeat offender, or where the defendant has failed probation.
Mandatory prison sentences in Adams County and Arapahoe County generally are encountered with child sex offenses involving pattern offenses (more than one act of sexual contact), and in adult sex offenses involving force, threats, victim physical injury or weapons. Defendants are considered high risk when they have acts of sexual contact with strangers, when their sexual history is extensive, or when treatment is predicted to be ineffective. Repeat offenders are those defendants who have had a prior sex offense. Typical failures at probation are related to violations of a defendant’s terms and conditions of probation. This may result from the defendant being terminated from treatment with a Sex Offender Management Board provider, or from a probation officer’s decision.
– The Realities of Colorado’s Indeterminate Sentencing
It is important to realize that sex offender sentencing in felony matters generally involves some type of Indeterminate Sentencing. This is unique to sex offenses in Colorado. A sentence of this type requires the court to give the defendant a minimum sentence, but no maximum. The upper limit is left open, with the maximum being the defendant’s natural life – or a lifetime sentence. The defendant’s release from the sentence is not predictable. Indeterminate sentences occur in both prison and probation sentences in Douglas County and Weld County, Colorado. For example, a defendant might be given a prison sentence of four years to life. After serving four years, he might be considered for parole, but the parole board is not required to release him at the end of the four years served. The defendant might serve four years, forty years, or a lifetime sentence. In the probation context, indeterminate sentences given for felony sex offenses are generally 10 years to life for a class four felony, and 20 years to life for a class three or class two felony. Again, after the minimum probationary sentence is served, the defendant is not necessarily released from supervision. It is up to the court when to release the defendant from probation.
The Importance of Hiring a Criminal Lawyer for Sentencing
A defendant should always remember that there are collateral consequences to any sex plea. These include but are not limited to sex offender registration, deportation for noncitizens, residence restrictions, contact with minors restrictions, job type restrictions, internet restrictions, and restrictions on relationships of a sexual nature. Other restrictions exist, and your attorneys at O’Malley Law Office, P.C. can review these with you given your particular circumstances. Sentencing is the most important aspect of your criminal case. If you have pled guilty or have been found guilty at trial, you need the expertise of an experienced criminal defense lawyer. Work with a professional attorney who understands the complexity of Colorado sentencing laws and can spot hidden rules which could harm or benefit your situation. The criminal defense lawyers at the O’Malley Law Office have been conducting sentencing hearings for a combined 40 years. Don’t stand alone in the courtroom and face your sentence – hire an affordable attorney to guarantee you get the best possible outcome.
If you or a loved one has been charged with a crime and are facing sentencing, be smart, exercise your right to remain silent, and contact an experienced criminal defense attorney at the O’Malley Law Office for a free consultation at 303-830-0880. Together, we can protect your future.