Convicted rapists in Colorado have been avoiding prison because judges worry this law is too harsh

The crime of which Austin Wilkerson was convicted carries a presumptive sentence of four to 12 years in prison. He got two years of work release.

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A cell block or "pod" at the Douglas County jail. (Kevin J. Beaty/Denverite)

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A cell block or "pod" at the Douglas County jail. (Kevin J. Beaty/Denverite)

The crime of which Austin Wilkerson was convicted — sexual assault on a helpless victim — carries a presumptive sentence of four to 12 years. The former CU Boulder student raped a young woman who had been drinking at a party in 2014 after telling her friends not to worry, he would take care of her.

But this week, District Judge Patrick Butler balked and sentenced Wilkerson instead to two years of work-release in the county jail and 20 years to life on probation.

The reason Butler gave was Colorado’s indeterminate sentencing law that allows sex offenders to be kept in prison forever if they’re deemed to still be a risk.

The Daily Camera was in the courtroom:

“I’ve struggled, to be quite frank, with the idea of, ‘Do I put him in prison?'” Butler said, adding that he spoke to people in the prison and jail system about what kind of treatment Wilkerson would receive.

“I don’t know that there is any great result for anybody,” Butler said. “Mr. Wilkerson deserves to be punished, but I think we all need to find out whether he truly can or cannot be rehabilitated.”

Earlier this year, a different Boulder judge sentenced Daniel Ryerson, a former Air Force cadet, to six months of work release and 10 years to life probation rather than the two to six years of prison with indeterminate sentencing that is the presumptive sentence. Ryerson was convicted of raping a friend with whom he’d come to Boulder to party.

“I lack the mitigating circumstances of remorse on your part in this case,” District Court Judge Judith LaBuda told Ryerson. “Despite all that, I find that you have many redeemable qualities that could still permit you to be a functioning member of society in a positive manner if and when you accept responsibility for the crime that you committed: the rape of somebody who trusted you.”

These decisions have echoes of an infamous California case in which the judge said a prison sentence would have a “severe impact” on the perpetrator, a former Stanford University swimmer, and sentenced him to six months in jail and three years probation. The victim’s harrowing letter to the court about her experience went viral.

The Guardian and Huffington Post have picked up the story, but they didn’t pick up on the role indeterminate sentencing played in the judge’s thinking.

Colorado judges have cited this law to keep rapists out of prison before.

I wrote nearly this same story back in 2011 when I covered courts and cops for the Daily Camera. The perpetrator was older, a prominent and professionally successful real estate agent in Broomfield. Like Wilkerson and Ryerson, Curtis Hilty used alcohol to help render his victim vulnerable. He already had his victim’s trust, as she was a family member he had known since she was a baby.

Like Butler in Boulder, District Judge Thomas Ensor said he would really like to sentence Hilty to prison, but he was worried that Colorado’s indeterminate sentencing rules would keep him there for life.

The victim described in wrenching detail the emotional damage that remained long after the assault and asked for prison, even if just for one year. Her own family members sided with the man who attacked her and asked for leniency.

“It’s ruined my life, and he’s known me since I was born,” the victim said. “I want him to sit and think about what he’s done to me. I want him to be horrified by his actions, because if he is not horrified, then God help him.”

Against that wrenching testimony, Hilty had the support of friends, family and colleagues, including a nice letter from the state Division of Real Estate about his many contributions to the profession. He apologized for his “poor choices.”

“I have committed myself never to be in that position again.”

Hilty was sentenced to 30 days in county jail to give him a “taste” of incarceration and motivate him to comply with 20 years of sex-offender probation.

What is indeterminate sentencing?

In 1998, Colorado passed the Lifetime Supervision of Sex Offenders Act, which allows the state to keep certain sex offenders in prison indefinitely if they are deemed to be at risk of re-offending. It was introduced by a legislator who saw the impact of a sexual assault by a serial rapist on an acquaintance. And though it ordered treatment as a condition of being considered for parole, it was based the idea that sex offenders cannot be cured and will always represent a risk to others. (This is a very complicated issue. I’ll summarize the current perspective as, “It depends.”)

In the first six years after implementation, not a single person sentenced under the law was paroled, even though the law also allows for supervision to continue under parole. There weren’t enough treatment programs and waiting lists grew. Some offenders served their entire sentence with no chance to even begin treatment and so they stayed.

The law also allows sex-offender probation to be extended indefinitely. The terms of this specialized probation aren’t easy: ongoing treatment group meetings, restrictions on where you can live and work, no internet access. It also costs a lot less than keeping people in prison.

So for some judges in some cases, it seems like a better option than prison, with that life sentence looming when the six years are served.

Is indeterminate sentencing really a life sentence?

Not always. There are hundreds of people who have been paroled and get their lifetime supervision out in the community, just like people sentenced to probation.

But the program’s implementation has had a lot of problems, and many people are serving longer sentences than they otherwise would.

A 2013 audit slammed the state Department of Corrections for long wait times for treatment, shoddy therapists and a single treatment plan for all offenders, regardless of the specifics of their crimes or the factors that contributed to their actions. Of course, money was an issue. The treatment program was underfunded.

In a budget request back in 2011, Tom Clements, then the director of the Department of Corrections, talked about an increasing backlog of offenders waiting for treatment.

And he made note of mounting concern among judges that was leading to sex offenders not going to prison at all.

“Public safety will be compromised by the ongoing backlog of treatment at DOC,” Clements said. “Some judges are currently stating on record that they will not sentence sex offenders to DOC since they will not get treatment and will be in prison for life.”

The department acknowledged some of the problems and responded with a program to classify offenders by their risk of committing another crime and designing a shorter treatment program for low-risk offenders that could be completed in less than a year. More people are getting a shot at parole.

But there was a huge backlog then, and more people are sentenced to prison every year.

The Department of Corrections has to do an annual report on implementation of the Lifetime Supervision of Sex Offenders Act. In 1999, the year after the law passed, there were 42 sex offenders serving life sentences in Colorado prisons. As of June 30, 2015, there were more than 2,000 people under lifetime supervision for sex offenses. Of those, 1,242 were inmates in state prison and another 503 were in private prisons.

There were 416 sex offenders on parole in fiscal year 2015, out of prison but still under lifetime supervision and at risk of returning to prison if they violated any conditions.

Since 2003, 507 people have received parole with supervision, and the pace has picked up in the last two years, with 227 of them getting out during fiscal years 2014 and 2015.

In fiscal year 2015, 149 new sex offenders were sentenced to prison under lifetime supervision, and 20 “discharged their sentences,” four of them by dying in prison.

Defense attorneys consider this system an outrage, and the civil libertarian in me gets kind of queasy about indeterminate sentencing.

At the same time, victims and their advocates (and really, all of us) worry about offenders being released too soon or with inadequate treatment and hurting more people. It’s especially hard to come to terms with a crime committed by someone who should have — or could have — been in prison.

And then there is the question of what message it sends when victims go through the grueling trial process and secure convictions, only to watch their rapists walk, essentially, free.

There’s the question of justice, whatever that is.

A pre-sentencing report recommended probation and made note of Wilkerson’s remorse, but prosecutors did not take it to be sincere. At trial, he claimed the encounter was consensual, and his defense attorney suggested the victim made up a story to distract her parents from her poor grades.

In her statement at sentencing, the victim said friends and even her own mother at times put some of the blame on her.

“Worst of all is the victim blaming,” she said. “‘If I hadn’t been drunk, this wouldn’t have happened. If I hadn’t gotten separated, this wouldn’t have happened.’ Yet it was excusable for him to rape me because he was drunk?”

“Have as much mercy for the rapist as he did for me that night,” Wilkerson’s victim told the judge.

She did not stay in the courtroom to hear his sentence.

The judge told her father she’s a very brave young woman, and he hopes she moves past this.

“That kind of strength is really admirable,” Butler said. “Without ever forgetting this happened, I hope she is able to find hope for the future.”