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Understanding How Colorado Criminal Sentences Are Determined – Specifically Calculated by The Colorado Department of Corrections, County Jails and the Courts *

Colorado Sentencing Laws are among the most confusing in the country. In making a decision to take a case all the way to trial or to resolve it through negotiations, understanding the length of a sentence requires a thorough examination of the relevant sentencing laws at play.

Computing the final “actual time to be served” timeline for a sentenced felony or misdemenant in Colorado is difficult. This article – written by Colorado Attorney Philip Cherner – a personal friend and an excellent Colorado Criminal Defense Lawyer – explains – in simple understandable terms – how the sentencing system operates. In Colorado.

Colorado, like many other states in the US have called for accuracy in public sentencing. The reason? “sentencing laws that may appear deceptive. While the headlines read Smith sentenced to 10 years in prison, the truth is much more complicated. Unlike the federal system, (where an individual will spend almost all of his time – 85% – behind bars, Colorado’s sentencing scheme reflects many other rules and results that have led to efforts for what has been termed “Truth in Sentencing” laws.

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. 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’ PED.

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. 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 50% 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 in Colorado

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. 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. Unlike presentence credits that apply to every defendant, earned time is discretionary. It can be earned through participation in one of several 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.

A common reason for refusal to award earned time is failure to participate in a sex offender treatment program. 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.

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. 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 be parole-eligible on or about August 1, 2011.

Mandatory Release Date.

Not all eligible inmates receive early parole release. The maximum time inmates can serve, assuming they are denied parole at the PED and at every parole hearing thereafter.is the full length of the imposed sentence, less any presentence confinement credits and earned time. This is called the mandatory release date (MRD). Inmates might be released as early as the PED or as late as the MRD (if they are not paroled earlier and never earn any time). For example, on an eight-year sentence, there is an uncertainty of five and one-half years.

Exceptions

There are two major categories of exceptions to the computational rules: one for violent offenders and one for sex offenders. A discussion of each follows.

Violent Offenders

If the current conviction is a crime of violence, 11 the automatic 50 percent deduction for good behavior is reduced to 25 percent. The PED for violent crimes is 75 percent of the imposed sentence (commonly known as the 75 percent rule. If such offenders have no prior convictions for crimes of violence, they may receive credits for earned time; however, those convicted of

a crime of violence who also have a prior conviction for a crime of violence will serve 75 percent with no earned time deduction before they may be paroled.

A person convicted of armed robbery and sentenced to the minimum of ten years (assuming there are no prior violent convictions) will have to serve seven and one-half years, less presentence and earned time credits, before parole eligibility. If there are prior violent crime convictions, time served will be seven and one-half years less only presentence credits.

Sentencing of Colorado Sex Offenders

Different rules apply to sex offenders. In 1998, Colorado enacted a lifetime sex offender sentencing scheme called the Colorado Sex Offender Lifetime Supervision Act (Act). The

Act covers a wide variety of offenses, but generally provides for a potential life sentence for class 4 and more serious sex felonies.

Individuals sentenced under the Act receive an indeterminate life sentence. The maximum must be life (in prison or on probation). If the court imposes a prison sentence, it also imposes a minimum period, scaled to the offense of conviction; this minimum determines the PED. The minimum will be no less than the minimum presumptive sentence for the felony class of crime and no more than twice the presumptive maximum.

For example, sexual assault on a child, a class 4 felony, carries a prison sentence of two years to life, because the presumptive minimum for a class 4 felony is two years. The sentence could be as long as twelve years to life, because the presumptive maximum for a class 4 felony is six years. Although earned time discounts are allowed for sex offenders, there is neither the automatic 50 percent deduction that is available for non-sex felonies, nor the 25 percent deduction available for crimes of violence.

Sex offenders will serve 100 percent of their imposed minimum sentence, less presentence credits and earned time. A sex offender serving a sentence of two years to life would become eligible for parole after two years, less presentence and earned time deductions. There is no MRD, and because the sentence is indeterminate and release is entirely at the discretion of the parole board, offenders could serve life sentences. When there are differing computational rules for different concurrent sentences, the case law applies the computation rules from the governing – or the longest sentence.

Release on Parole

The parole board decides whether inmates who have reached their PED should be granted parole before their MRD. Generally, inmates serve a period of parole supervision that is linked to

the severity of the offense. An offender who is rejected may re -apply for parole after a specified length of time (referred to as the setback).

The setback can be as short as six months and as long as five years. However, eligibility for parole does not equate to release on parole, and only a fraction of inmates are released at their PED.

All class 3 felonies carry a mandatory parole period of five years. If there is a violation of the terms and conditions, parole could be revoked and the parolee could be returned to prison to serve the balance of the parole period (not the balance of the underlying sentence).

If a class 3 felony burglar earned no time credits, was paroled on the MRD, and parole was revoked the same day, the offender could end up serving a full thirteen years on an eight-year sentence.

Indeterminate Sentences for Sex Offenses

Because of the indeterminate nature of the sentences imposed for serious sex crimes, release data on those sentences deserves mention. The percentage of sex offenders paroled from indeterminate sentences is small. As of June 30, 2009, there were 1,359 inmates serving indeterminate sentences in prison for sex offenses.

In the first ten-year period the indeterminate system was in place, only eight of those offenders were released to lifetime parole, and one of those had parole revoked. This represents a release rate of 0.78 percent.

There is a recent trend toward greater release rates for sex offenders. In FY 2009, the parole board granted parole in thirty-one of 483 lifetime sex offender parole applications (5 percent).

Whether this is an anomaly or a long-term trend is unknown.

When lifetime felony sex offender probation is revoked, the probation sentences may be converted to life prison sentences.

After four years, almost 40 percent of all sex offenders in the SOISP had their probation revoked and were back in prison.

Parole Board Discretion

The parole board has release discretion and, along with the sentencing court, can determine the actual amount of time an inmate serves. What follows is a historical look at how parole board discretion has been exercised.

In November 2008, the state auditor released a report that found that 65 percent of offenders are not granted parole until their MRD. The DOC calls this mandatory parole and all earlier parole discretionary parole. The auditors found that:

– more than three quarters of discretionary parole requests are denied by the board. For example, in fiscal year 2008, the board denied 15,000, or 84 percent, of the 17,800 requests for discretionary parole.

The parole board is a political institution and is subject to political pressures. In December 2005, the parole board and DOC decided to stop releasing inmates on weekends. Inmates whose MRD fell on a Saturday or Sunday were released a day or two early. This decision caused a statistical (and politically unfavorable) increase in the number of releases before the MRD, as well as a corresponding decrease in those released on their MRD. The parole board ultimately reworked its statistics, adding a new category of weekend mandatory releases, which were distinguished from discretionary releases.

Aggressive media coverage also has had an impact on sentencing decisions by government officials.

It is not easy to predict whether an inmate will be released on parole. The parole board has available to it a statistical risk assessment score pursuant to CRS 17-2.5-404, but the 2008 auditors found that board members are not adequately trained in its use.

The auditors also found that the parole board does not maintain data on its parole decisions or track the effect of the decisions after release of an inmate. Legislation was enacted in 2009 to improve parole board decision-making.

Misdemeanors Sentencing in Colorado

Misdemeanor sentences are served in county jails (unless served concurrently with a felony sentence). The jails and the sheriffs who run county jails have their own computation rules. Inmates can receive deductions for good behavior (two days per month), earned time (three days per month just added in 2009), and trustee time (not to exceed ten days per month). There is no parole for misdemeanors. Practitioners and their clients who may not be familiar with local time computation practices would do well to find out how county jails calculate sentences.

The Future

In September 2009, the parole board was instructed by Colorado’s Governor Bill Ritter to initiate an accelerated transition program. As a consequence, the parole board will now consider paroling inmates who are within six months of their MRD, to save space and money. Class 1 and class 2 felony offenders, sex offenders, and habitually violent offenders are excluded from the program. All of these inmates are past their PED, and already could have been released if the parole board chose to do so. It is not clear what criteria will be applied, beyond those previously used in parole release decisions. The DOC asserts that criminal records and treatment needs will be assessed when reviewing offender transition.

In the spring of 2009, the General Assembly authorized an award of up to two additional days of earned time per month for certain non-violent, compliant offenders. It also increased earned time for county jail inmates serving misdemeanors.

Conclusion

Understanding the rules of time computation, the historical behavior of the parole board, and the prison projections made by various governmental agencies should help everyone directly concerned. defendants, victims, lawyers, and judge better estimate the amount of time a sentenced defendant will actually serve. Average length of stay is, of course, just that; it is of limited value in predicting how long a particular individual will stay in prison or,more precisely, what percentage of a sentence an individual will serve. Nevertheless, it is inconceivable that a competent defense lawyer, for example, would ignore either the time computation rules in advising his or her client about whether to accept a plea bargain to a stipulated sentence.

*This article is a summary of the longer and the most excellent work: “Too Much Time on Their Hands: Sentencing for Felony and Misdemeanor Convictions: Time Actually Served by Phil Cherner, Esq. Law Office of Phil Cherner Denver, CO


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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