Stealing newspapers. Unlawfully using slugs. Defacing a cave. Colorado’s misdemeanor classifications are getting a rewrite.

Draft recommendations, which require legislative approval, aim to update, recalibrate and simplify the state’s convoluted misdemeanor and felony offenses

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A broad coalition of people involved in Colorado’s criminal justice system are in the process of doing something that hasn’t been done in a comprehensive way in decades: updating the state’s misdemeanor and felony offenses.

Misdemeanor and felony classifications and their corresponding sentence lengths are a key driver of Colorado’s prison population, which increased seven-fold between 1980 and 2016 as a result of a slew of policy changes that created new crimes and dramatically increased prison sentences for existing ones, according to a 2018 report by the American Civil Liberties Union.

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“The phrase that too often is used is the Christmas tree approach,” said Michael Dougherty, district attorney for the state’s 20th Judicial District and member of the state’s Sentencing Reform Task Force. “Where someone decides that they have some priorities so they hang a new ornament on the tree, and as a result we have all these inconsistent statutes when it comes to sentencing.”

Update is well underway but far from complete

On March 12, the 25-member task force — which includes victims advocates, prosecutors, judges, law enforcement and people with lived experience within the criminal justice system — will present a long list of recommendations to the Colorado Commission on Criminal & Juvenile Justice. 

The draft recommendations aim to eliminate duplicate offenses, remove ones that are rarely used and recalibrate the punishments that have historically been given. 

“To me, the goals that are at the top of the list are to develop more consistency and certainty in our sentencing guidelines,” Dougherty said. “In the day-to-day reality of the criminal justice system, currently, it’s not clear to anybody what the actual time of incarceration will be on a sentence, whether it is a misdemeanor or a felony.”

“In the day-to-day reality of the criminal justice system, currently, it’s not clear to anybody what the actual time of incarceration will be on a sentence, whether it is a misdemeanor or a felony.”Michael Dougherty, district attorney for the 20th Judicial District and member of the state’s Sentencing Reform Task Force

If approved by the commission, the changes — which wouldn’t go into effect until March 1, 2022, to give law enforcement, prosecutors and defense attorneys time to update their operations — will then move to the state Legislature. 

It’s likely only recommendations related to misdemeanor sentencing will make it to lawmakers’ desks this year. But the sentencing task force will continue their work on felony offenses through the spring and summer.

Rob Schultz, a Denver-based defense attorney, said he looks forward to not needing a separate book in his office that he created in order to understand and apply Colorado’s sentencing guidelines to his cases.

“It’s easy to say that if you don’t touch the information on a regular basis, that anything can be hard to follow,” Schultz said. “But I would say that our Colorado guidelines are not even necessarily approachable to folks who do this on a regular basis or are engaged in the practice of law.” 

1st step: Propose new sentencing guidelines for misdemeanor offenses

The group combed through over 600 misdemeanor offenses to reclassify them, trim out redundancies and, in some cases, remove them altogether. A handful of felonies are being recommended to be reclassified as misdemeanors, and vice versa.

“For each of the 600 offenses we conducted a really thoughtful, careful analysis of what box should it go into based on the new sentencing grid,” Dougherty said.

One big change, if approved, would be eliminating the class 3 misdemeanor category. Generally, crimes involving a direct, physical harm to a victim are classified as M1, while crimes involving property fall under M2. 

Offenses previously in the M3 category would either move up to M2 offense, or down to petty offense. 

Class

Current

Proposed

Misdemeanor 1

Up to 18 months in jail, $5,000

Up to 364 days in jail, $1,000

Misdemeanor 2

Up to 12 months in jail, $1,000

Up to 120 days in jail, up to $750

Misdemeanor 3

Up to 6 months in jail, $750

Eliminate, classify offenses as either M2 or PO

Petty Offense 1

Up to 6 months in jail

Up to 10 days in jail

Petty Offense 2

$100 fine

Up to 10 days in jail

Source: cdpsdocs.state.co.us

For example, currently the crime of unlawfully using slugs — not the slimy kind, but counterfeit coins — is an M3 offense, meaning a person can face up to six months of jail time and a $750 fine. Under the task force’s recommendations, this crime would move down to a petty offense. 

Under the recommendations, the punishment for offenses that move up from class 3 to class 2 would still be less in terms of jail time and fine amounts than under the former classification.

For example, failure to report abuse of an at-risk elder is currently classified as a class 3. Under the new recommendations, it would be classified as a class 2 misdemeanor but only carries a sentence of 120 days in jail, not up to six months, as it is currently.

Some examples of offenses that could be removed are stealing a newspaper, defacing a cave (because the crime falls within another offense) and marrying someone who is already legally married.

“There are duplicative and overlapping offenses in there right now that can and should be eliminated,” Dougherty said.

Next on the docket: Felony offenses

The next step will be tackling felony offenses. This will also include an analysis of Colorado’s sentencing enhancement laws, which lead to significantly longer sentences based on someone’s criminal record. The group will be evaluating the state’s Habitual Offenders Act — also referred to as the “three strikes law” — and extraordinary risk crimes.

“The reason we started with misdemeanors was because you need the foundation of what a misdemeanor sentence is in order to have a conversation around what a felony should be,” Dougherty said. “If I asked you should child abuse with minimal injury be a felony or misdemeanor, you’d want to know what’s the maximum sentence someone could get on a misdemeanor.”

The Sentencing Reform Task Force — which was formed after Gov. Jared Polis sent CCJJ a letter in June — is expected to continue its work through the spring and summer to update felony sentences and to tackle other aspects of the criminal justice system, including parole, alternatives to incarceration, and how offenders progress towards rehabilitation.

“The goal is to make the system more just while maintaining public safety, of course, and making sure that we give offenders the best opportunity of rehabilitation through their period of incarceration and also beyond that scenario,” Dougherty said.

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