Criminal Law Attorneys Reflect on Legislative Wins, Worries and the Work Ahead

State Capitol
The Colorado General Assembly passed about 40 new laws related to criminal justice and corrections, including an overhaul of the state’s misdemeanor code and a bill limiting the use of ketamine injections by first responders. / Law Week file.

The Colorado General Assembly passed more than three dozen new criminal justice-related laws this year, including an update to last year’s sweeping police accountability bill and a highly anticipated law placing limits on the use of ketamine injections. This year’s batch of bills brought cause for celebration and concern for criminal defense lawyers and prosecutors alike. Attorneys and lobbyists discussed the good, the bad and the unfinished business of the 2021 legislative session.

Bright Spots For Defense Attorneys

One of this year’s biggest legislative victories for the criminal defense bar was SB-21-124, which changed the state’s felony murder rule. Previously, a defendant could be charged with first-degree murder if a victim died during the commission of certain felonies, including arson, robbery, burglary, sexual assault and kidnapping — even if the death wasn’t intentional and they didn’t directly cause the death.

The new law makes the crime a second-degree murder and changes the penalty from a class 1 felony, for which the only possible sentence was life without parole, to a class 2 felony subject to crime of violence sentencing, which ranges from 16 to 48 years in prison. It also requires that the death be caused by a participant in the underlying crime, rather than a bystander, police officer or other non-participant.

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SB-21-124 was one of two major bills the Colorado Criminal Defense Bar focused its lobbying efforts on this session. According to Tristan Gorman, CCDB legislative policy coordinator, the bill was the result of six or seven years of work by the criminal defense bar and other criminal justice reform advocates. 

The other bill CCDB took a proactive stance on, HB21-1315, eliminated a number of fees and costs in juvenile delinquency cases that juveniles or their parents were required to pay. These include certain costs for juveniles sentenced to a placement out of the home, costs of prosecution, fees for applying for court-appointed counsel and charges levied on criminal actions to be paid into victim compensation funds.

“That is going to make such a huge difference in the lives of our juvenile clients and their families. Our research showed that about 90% of juvenile defendants in the system in Colorado are indigent,” said Gorman, adding that an estimated $58 million in debt will be wiped out by the law. A lot of that was not collectible, she added, but it did affect people’s credit, creating barriers to financial stability and employment.

“Research shows that there’s no rehabilitative purpose to imposing fees and costs,” Gorman said, adding that these fees are not the same as restitution paid directly to victims, nor are they criminal fines, which are considered part of a punishment. “We think this is going to be an improvement that will reduce or eliminate collateral consequences for indigent kids and their families.”

According to Gorman, other bright spots this year included HB21-1280, a “pretty modest bail reform bill” requiring a court to hold a bond setting hearing within 48 hours after arrest and arrival at a jail or holding center, and SB21-71, which eliminated cash bail for juveniles and reduced the juvenile detention bed cap. “This applies pre-trial, when people are charged but not convicted, so they’re still cloaked in the presumption of innocence,” Gorman said, adding the measure will reduce pre-trial juvenile detention across the state.

David Lane of Killmer, Lane & Newman pointed to HB21-1251, which limits the use of ketamine during an arrest or detention, as another win from a criminal defense perspective. “I am particularly tuned in to the elimination of forcible injections of ketamine, as our firm represents the Estate of Elijah McClain, who was murdered by the police,” Lane said in an e-mail. “Ketamine played a role in his death, and he was injected and overdosed for no discernable reason.  Forcibly injecting people being arrested simply at the whim of a police officer is a horrific abuse of police power.”

While the new law doesn’t ban ketamine injections outright, it does require EMS providers to undergo training and take certain steps, including weighing the person, before administering the powerful sedative in a prehospital setting. It also prohibits law enforcement officers from administering ketamine, directing or “unduly influencing” its use or compelling EMS providers to administer the drug.

Lane said other victories include HB21-1214, which creates an automatic sealing process for arrest records when no criminal charges are filed, and HB21-1314, which takes away the department of revenue’s authority to suspend, revoke or deny driver’s licenses for people who fail to pay court fines or fees.

Prosecutors’ Perspective

The General Assembly also passed a few laws that prosecutors are pleased with. Tom Raynes, executive director of the Colorado District Attorneys’ Council, singled out HB21-1069 as a victory for public safety that didn’t face any resistance. The new law modernizes the state’s statutes on sexual exploitation of a child to reflect changes in technology such as livestreaming.

Under the updated law, sexual exploitation of a child includes accessing sexually exploitative material with intent to view, transferring sexually exploitative material or making it accessible to another person. The law also makes sexual exploitation of a child an extraordinary risk crime, enhancing the presumptive sentencing range in cases where the material depicts a child under 12 subjected to certain acts.

Another success, according to Raynes, was HB21-1057, which updates the criminal extortion statute, making it illegal to use a person’s immigration status against them to force them to do something or make them refrain from lawful activity. Prior to the bill’s passage, it was only illegal to use someone’s immigration status to coerce them into handing over money or items of value. 

The updated law protects undocumented immigrants who are threatened by their employer and forced to accept substandard or unpaid wages. The law also covers immigrants who are witnesses or victims of crimes and face the threat of being reported to Immigration and Customs Enforcement for reporting the crime or testifying.

Raynes also pointed to SB21-271 on misdemeanor sentencing reform as a good example of collaboration and compromise. “That was a huge endeavor to essentially overhaul the entire misdemeanor sentencing code,” said Raynes, a member of the Commission on Criminal and Juvenile Justice, the task force responsible for sentencing reforms. Last summer, Gov. Jared Polis sent a letter to the commission asking it to revisit and recalibrate sentencing for both misdemeanors and felonies. Work on felony sentencing reform is currently underway and a bill is expected in 2022.

For the misdemeanor bill, the CCJJ reviewed 1,100 crimes — from bribing petition signers to leaving campfires unattended — and reconsidered sentencing parameters. The result was a 300-page bill that reduces the number of misdemeanor classifications from three to two, reduces petty offense classifications from two to one and adds a classification for civil infraction. It reclassified various offenses, shifting some felonies to misdemeanors, recategorizing some misdemeanors as petty offenses and placed acts such as defacing a posted notice and use of a stink bomb in the new civil infraction category.

Worries and the Work Ahead

Both sides identified new laws that make them wary. CCDB’s Gorman said the criminal defense bar has “serious Fifth Amendment concerns” about HB21-1255, which modifies procedures related to protection orders issued against defendants in domestic violence cases. The law requires the accused to complete an affidavit regarding any firearms in their possession. If the defendant doesn’t complete the affidavit, they must attend a compliance hearing, Gorman said, “where they will be made to engage in compelled speech that could incriminate them with other charges.” 

Raynes said he has some concerns about HB21-1250, which updates last year’s landmark police accountability law. “Most of House Bill 1250 was very positive … but I think the body cam provision is not well-structured and could be detrimental to public safety,” Raynes said. “It’s kind of overly harsh in terms of how it potentially precludes evidence and testimony when an officer makes an inadvertent or good faith mistake when the camera doesn’t come on, or it goes off.” 

One thing to watch for in 2022 is the return of bail reform bills. In February, lawmakers introduced SB21-62, which would have limited arrest and cash bail for people suspected of certain low-level crimes, but it never made it out of the Senate. Another bill, which Gorman called “a very watered down, compromise version” of SB21-62, also failed to reach the governor’s desk.  

Another major item of unfinished business for next year is the second part of the CCJJ’s sentencing reform efforts, which will revamp felony sentencing. “That’s a little more difficult than talking about misdemeanors,” Raynes said. “It’s a little easier to give and take on misdemeanors — for parties on both sides of the table — than it is on felonies.” He added that while the task will be a “heavy lift,” a bill is expected to be ready by next spring.

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