When a Boulder judge determined Austin Wilkerson wouldn't spend a day in prison for raping an acquaintance, the decision drew national outrage. The judge cited Colorado's indeterminate sentencing laws in rendering his decision. He feared Wilkerson would spend the rest of his life in prison if he walked through those doors.
A bill in the Colorado Senate would let judges opt for fixed prison terms for certain sex offenses instead of the "indeterminate," potentially lifelong sentences these crimes carry now. Another would require that "low-risk" offenders be allowed to pursue treatment outside of prison if they're not getting it in prison by the time they're eligible for parole.
Both bills are sponsored by state Sen. Irene Aguilar, a Denver Democrat.
"The problem that the judge stated -- where we have a huge backlog of people awaiting treatment and people not getting paroled and then this influences how judges sentence people made me concerned we're having unintended consequences," Aguilar said. " ... I hope people would see that we've gone perhaps a step too far with our law."
Some prosecutors believe Aguilar's proposed fix is itself a step too far in response to what are ultimately isolated incidents. Indeterminate sentencing serves an important function, and there are other solutions to the treatment backlog, they said.
"We don't need to get rid of all of indeterminate sentencing to be reactive to a few cases," said Katharina Booth, first assistant district attorney in Boulder County and head of that office's sex assault unit.
Booth believes the legislation represents an attempt by defense attorneys to exploit outrage over the Wilkerson case to get something they've wanted for a long time, which is an end to indeterminate sentencing.
First, 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. To be considered for parole, sex offenders need to have successfully completed treatment, but the law assumes that some sex offenders cannot learn to manage their impulses and will always represent a risk to others. So regardless of what the presumptive sentencing range is for a crime, the offenses subject to lifetime supervision can carry an effective life sentence.
That lifetime supervision, though, can also be applied through a specialized sex offender probation program or to prisoners on parole.
The most recent numbers available from the Colorado Department of Corrections are from June 30, 2016. During 2016, there were 2,134 prisoners with lifetime supervision for a sex offense. They make up nearly 9 percent of the prison population. Over the life of the program, 760 people have been released, 89 of whom have violated parole in some way but later were re-paroled. In the last fiscal year, one person who had been paroled was convicted of a new sex offense.
A state audit released late last year criticized the department for not adopting better record-keeping and risk assessment tools to channel the right offenders into treatment in a timely manner. There are 1,231 sex offenders serving indeterminate sentences who are past their potential parole date. If they all were released, it would save the state $44 million a year.
Over the last few years, the legislature has allocated more money to sex offender treatment, enough to hire an additional 15 people to work through the backlog. But the department has only hired and kept four people, according to the audit, one of them in a training and support position that doesn't work directly with prisoners.
Why? Well. Do you want to work in sex offender treatment and live in Limon?
"Due to the nature of the job and locations away from central population centers, it has been difficult to recruit and retain qualified staff for the Sex Offender Program," DOC said in its response to the audit.
Wilkerson is hardly the first defendant who has ended up with probation because a judge worried that any prison at all would turn into a lifetime in prison under these conditions.
And here are the bills in question:
- Senate Bill 87, Determinate Sentence for Indeterminate Sex Offense, would allow judges to choose whether to send someone to prison for a fixed term or for an indefinite term, lays out the criteria they should use to make that decision and requires them to put their reasoning on the record. The fiscal note for this bill says it might cost more money to do more intensive evaluation of offenders up front and might save money down the road in shorter prison sentences, but analysts said it's very hard to know the real impacts.
- Senate Bill 141, Low-risk Sex Offender Community-based Treatment, requires the sex offender management board to develop "evidence-based criteria" for the release of low-risk sex offenders, in consultation with researchers in the field and the department of corrections, among others. If offenders have not been able to get treatment in prison, this bill would require that they be allowed to pursue treatment in the community -- that is, while on parole -- and that not having started or completed treatment in prison cannot be a reason to deny parole to an offender deemed to be low-risk.
Both bills are scheduled to be heard by the Senate Judiciary Committee at 1:30 p.m. Wednesday.
"This doesn't change it for everyone," Aguilar stressed. "It just puts in a level of discretion, and it specifically says the reason for exercising the discretion needs to be documented.
"I hope people will see the rationale behind it and not think that I want to let everyone out of prison," she continued. "We're not out trying to free pedophiles and violent predators."
Booth said the term "low-risk" can be misleading when it comes to sex offenders. It's not unusual for her to prosecute someone who has committed the sorts of crimes that many people would think cry out for indeterminate sentencing -- someone who has sexually assaulted multiple children -- and have their risk profile come back "low" or "low-moderate." The criteria are based on a long list of factors that include things like not having prior convictions or not being held back in early elementary school.
Booth has other concerns, including that the criteria for indeterminate sentencing in the bill create such a high bar that it would be almost impossible to meet and that the bill would increase disparities in sentencing among defendants convicted of similar offenses. In particular, the prosecutor thinks crimes that were facilitated by alcohol and offenses that revolve around age differences will be treated as less serious.
For Booth, the fact that some prisoners remain incarcerated past their parole eligibility date is not evidence the program isn't working. Neither is the fact that some prisoners have passed their eligibility date without starting treatment. She brings up a case she worked on involving a man who abused a child, went to prison, got out, abused another child and went back to prison, this time with an indeterminate sentence. He's a repeat offender yet remains in denial about the nature of his crime. That puts him at high risk to reoffend and makes him a poor candidate for treatment. Of course he's still in prison past his eligibility date for parole.
"Just because someone is eligible for parole doesn't mean they should be paroled," Booth said. "It's like any other crime."
As for the difficulty of hiring staff, instead of releasing prisoners early, perhaps DOC could move some of these programs to more populated areas, she said.
"We need to prioritize treatment for those that make the most sense, those who are not in denial, those who can be safely managed in the community, and provide treatment in a place where you can attract more providers," Booth said.
Boulder County District Attorney Stan Garnett said he thinks judges who cite indeterminate sentencing in giving lighter sentences are looking for an out.
"Judges have to have the backbone to impose a prison sentence when it's appropriate," he said. "Sometimes I think they talk about not having enough treatment available as an excuse for not giving a prison sentence when they have other reasons for not wanting to impose a prison sentence. A prison sentence sends a societal message, and for most sex assaults, some prison is appropriate."
Other reasons such as?
"They're less comfortable sentencing a white, upper middle-class defendant to prison than other types of defendants, and those often are our defendants on the serious sex assaults we get from the university," he said.
