Citing a vacuum of Colorado case law on the subject, the General Assembly’s counsel says it is unclear whether a provision in state Rep. Lynn Hefley’s bill seeking parole for juveniles now serving mandatory life imprisonment is unconstitutional, as state prosecutors contend.
In a nine-page memo released Wednesday, the legislative counsel found that the core of House Bill 1315, seeking parole – after 40 years – for juveniles convicted of murder in adult courts rests on solid constitutional ground as it relates to future offenders and current prisoners whose appeals have yet to be exhausted.
But the picture is hazier for current convicts whose cases are considered finalized at the state appellate level. Several cases are still wending their way through the courts.
“The Colorado Supreme Court has consistently held that the governor has exclusive constitutional authority to commute a criminal sentence that has become final,” the opinion states. But the memo later stresses that no case law has placed the governor’s powers in the context of comparing life- with-parole sentences with penalties barring parole.
Hefley said the report reassures her that the bulk of her bill is legally enforceable.
“It’s a positive statement overall,” said the Colorado Springs Republican. “Many bills that go through the process have pieces that run into constitutional questions. This one falls in line with that trend.”
Hefley’s proposal, already approved by her judiciary committee, next goes before the House appropriations committee Monday for a vote because it entails a $4,000 computer expense for modifying sentences.
Among the larger issues affecting her measure is that most of the state’s prosecutors have opposed the provision on convicted juveniles, citing infringement on executive powers. But they are open to parole options for future offenders if the retroactivity clause is removed. Gov. Bill Owens has expressed a similar view.
According to the legislative opinion, future court rulings could pivot on whether the Supreme Court defines the severity of a sentence by its “length” or its “circumstances.” Under Hefley’s bill, the sentence length isn’t actually reduced because offenders remain under parole supervision for their entire lives, according to the memo. That means only the “circumstances” change.
However, if the state Supreme Court considers a prisoner’s “release” after 40 years as reducing the sentence’s severity, the memo states, the court likely would find that Hefley’s bill trespasses on the governor’s commutation powers.
The bill’s Senate sponsor, Ken Gordon, D-Denver, said the legislative opinion doesn’t affect the legislative process.
“We try to do what we think is right so that becomes policy,” Gordon said. “We don’t censor ourselves because something might change later.”
Some legal experts watching the bill believe it faces safe passage in the courts, if challenged, because it doesn’t mandate that a prisoner be paroled.
“It only makes it a possibility,” said Norm Mueller, a Denver defense lawyer. “And this gives the executive branch – the Department of Corrections – the authority” to make the decision, overcoming separation-of-powers problems.
Staff writer Miles Moffeit can be reached at 303-820-1415 or mmoffeit@denverpost.com.
