Legislative Look Ahead: Fentanyl, Consent and Youth Interrogations Among Criminal Law Topics to Watch at Capitol

Last week, lawmakers from both parties announced their agendas for the 2022 legislative session, which began on Jan. 12. Republicans and Democrats agree that addressing crime and public safety is a top priority, and both parties seem poised to increase funding for law enforcement recruitment and training.

Prosecutors, defense attorneys and criminal justice reform advocates are pushing for their own legislative wish lists and monitoring issues that might gain traction this year. Here’s what they see in their crystal balls.

Prosecutors’ Priorities

The Colorado District Attorneys’ Council is focused on a handful of priority bills this session. One of them, Senate Bill 22-024, was introduced Jan. 12 and would expand the law around what constitutes intimidation of a witness by stating that intimidation can be either direct or indirect.

According to Arnold Hanuman, CDAC’s deputy executive director, the current law contains loopholes. It’s currently against the law for a person to influence or try to influence a victim or witness, but the statute doesn’t cover situations where a defendant tries to influence a third party who has information about the case or someone close to a victim or witness.

“We’re suggesting language that it could be indirect — that message can be sent or conveyed through a third party as opposed to directly to that victim or witness,” Hanuman said. For example, the bill would make it a crime for someone to intimidate a victim’s family member or to make threatening gestures while a non-victim or non-witness is giving testimony.

CDAC is also pushing two bills dealing with sexual assault. The first would clarify outdated and confusing language regarding consent. Hanuman explained that when a sexual assault case goes to trial, prosecutors must submit jury instructions that state that any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault. But only “if the actor causes submission of the victim by means of sufficient consequence, reasonably calculated to cause submission against the victim’s will.”

“It’s gobbledygook,” Hanuman said. The bill would clear up that convoluted clause to say sexual assault occurs if “the actor causes sexual intrusion or sexual penetration without the victim’s consent.”

“We’ve learned that there are 34 other states that have very clear language like this,” Hanuman said, adding that Colorado is in the minority of states with the outdated language, which reflects 100-year-old case law. “What ends up happening is the victim is put on trial,” Hanuman said of the current language. “The way this is written, it makes it sound like, well, did the victim do enough to fight back?”

The second sexual assault-related bill is a structural bill to reformulate how the Sex Offender Management Board is constituted and operates, according to Hanuman. The board develops standards and guidelines for assessing, treating and monitoring sex offenders.

Fentanyl in the Spotlight

CDAC’s fourth and final priority bill for this year deals with a hot topic: fentanyl. Overdose deaths from the opioid have surged in recent years. But state laws don’t treat fentanyl as seriously as other drugs, such as methamphetamine, heroin, ketamine and cathinones, Hanuman said. CDAC wants people who unlawfully manufacture or distribute fentanyl to face the same penalties as those who produce or distribute those other drugs. Hanuman said Speaker of the House Alec Garnett and Rep. Mike Lynch were set to sponsor the bill, “but there are discussions to maybe consolidate with other legislators and try to come up with a more uniform bill proposal.”

Defense attorneys and criminal justice reform groups are warily watching for fentanyl-related proposals. “There are going to be some tough-on-crime, ‘drug war-esque’ bills to increase penalties for fentanyl distribution that I’m very concerned about,” said Tristan Gorman, legislative policy coordinator for the Colorado Criminal Defense Bar. “Particularly because I think that it will not save lives like evidence-based, proven harm reduction techniques.”

Terri Hurst, policy coordinator with the Colorado Criminal Justice Reform Coalition, which aims to reduce mass incarceration, echoed those concerns. Hurst said she has heard about multiple fentanyl-related measures, some of which could increase penalties for drug-induced homicides. Research has shown that’s counterproductive, she said, because it makes people afraid to call 911 in the event of an overdose. “We’re just afraid that we’re going to be rolling back some of the progress we’ve made with drug policy,” she said. “And we know what works is actually a more public health-focused approach.”

A Defense Bar Bill and Money for Mental Health

The CCDB is working on a bill to prevent the use of deceptive interrogation techniques on juveniles. Under current law, law enforcement officers are allowed to lie to anyone they’re questioning, make false promises and statements and express opinions they know are not true to elicit a confession. “There is a lot of research done, particularly on youth under the age of 18, that shows their unique susceptibility to such deceptive interrogation techniques like the Reid technique,” she said, referring to an interrogation method that has been criticized for producing false confessions.

CCDB’s bill would create a presumption that a statement by someone under 18 is inadmissible if law enforcement officers intentionally make false statements during their custodial interrogation of a minor.

Hurst said that in previous legislative sessions, CCJRC typically threw its support behind specific bills, but “this year is a little more fluid.” In 2022, the non-profit will focus on tracking, monitoring and influencing how funds for behavioral health initiatives and public safety measures will be allocated, Hurst said.

Gov. Jared Polis has proposed $113 million for public safety initiatives, and two bills introduced Wednesday fall under that budget package, Hurst said. They are Senate Bill 22-001, which creates a grant program for designing safer streets and neighborhoods, and House Bill 22-1003, which creates grants for youth delinquency prevention and intervention.

Additionally, Colorado has set aside $450 million in federal stimulus money for behavioral health programs. The Behavioral Health Transformational Task Force has been meeting to discuss how to spend that money and address mental health and substance abuse in the state. Many of the task force’s recommendations focus on improving access to beds and increasing staff at mental health facilities, said Hurst, who served on a task force subpanel. Those recommendations overlap with public safety concerns because people are stuck in jails waiting for competency evaluations.

Ripped from the Headlines

In terms of what else to watch for at the state capitol this term, CCDB’s Gorman said “there’s always the X Factor” of what hits the news cycle while the legislature is in session. For example, high-profile shootings last year, such as the one at a Boulder King Soopers last spring, led to “a plethora of gun control bills,” she said.

“One of my concerns is that with the rise in property crime that’s correlated with COVID, with the economic effects of the pandemic, with unemployment, with people being unhoused, I could see there being bills on motor vehicle theft, catalytic converter theft [and] so-called retail theft,” Gorman said.

Hanuman said CDAC will also be monitoring any “extreme or overly reactive bills” inspired by the headlines. “We want to take a look at those carefully and see that [they don’t] go backwards and harm the public and endanger public safety,” he said. “Legislators always have good intent, but sometimes the response to headline news can have a negative impact for public safety.”

One recent story that could inspire legislation is the case of Rogel Aguilera-Mederos, a trucker who was sentenced to 110 years in prison for a fatal crash in 2019. The judge in the case was forced to hand down the century-long sentence due to minimum sentencing laws. Lawmakers rallied for sentencing reform at the Colorado state capitol in December in response to the sentence, which Gov. Jared Polis later commuted to 10 years.

“I think that Governor Polis has demonstrated a clear interest in that type of injustice and understands that the legislature needs to take at least some of the discretion out of the hands of the prosecution and put it back in the hands of our judges,” Gorman said, but added that whether a bill will materialize “is anybody’s guess.”

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