Criminal Sentencing Law: The New Restorative Justice Idea in Colorado

In almost 42 years I have watched a system, as both a career prosecutor and now a criminal defense specialist, … that fails miserably in the sentencing phase of criminal cases. I have watched a system that focuses almost exclusively on punishment while paying lip servcie to alleged justice.

While Colorado state law mandates a multi faceted approach at sentencing – judges, elected officials and answerable to a constituency thirsting for revenge – often will sentence to satisfy the victim’s “needs” and what the voters want most – pure punishment.

I have found myself at many sentencing hearings where the victim’s anger centered on the lack of tangible empathy on the part of the defendant. When it is my turn to represent my client – I make it clear that the client was not permitted to communicate directly with the victim of the crime – the reason there was an absence of apologies or communication of accountability directly to the victim (often that is all they wanted) was the nature of the system itself. It is the adversarial system – that – until the day of sentencing – separates the victim from the defendant – it is the lawyers that prohibit the contact – or it is a mandatory restraining order that makes such contact unlawful.

The principles of restorative justice make sense. Most often – the victim of a crime wants to connect and understand why they were victimized – it is a part of the healing process. These principles permit that contact for the first time.

In 2011 – the Colorado 68th General Assembly – First Regular Session enacted HB 1032, Chapter 296 AN ACT Concerning restorative justice.

Before that law was passed effective this year ( August 2011 ). the old statute that governed the goals of sentencing in Colorado were essentially FIVE – they were:

• Incapacitation (physical restriction to prevent further opportunities for lawbreaking
• Rehabilitation (changing the offender’s behavior or circumstances to reduce the possibility of further lawbreaking);
• Deterrence (discouraging the general public from lawbreaking by example);
• Retribution (punishment of the offender to discourage further lawbreaking); Restitution (compensation to the victim and/or community).

In 2011 – the Colorado State Legislature revised the purposes of sentencing through the passage of a new law that added critically important criteria to the FIVE previous goals. Here is the new law:

1. The purposes of this code with respect to sentencing are:
   1. To punish a convicted offender by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense;
   2. To assure the fair and consistent treatment of all convicted offenders by eliminating unjustified disparity in sentences, providing fair warning of the nature of the sentence to be imposed, and establishing fair procedures for the imposition of sentences;
   3. To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses;
   4. To promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation and participation of convicted offenders; and
   5. To select a sentence, a sentence length, and a level of supervision that addresses the offender’s individual characteristics and reduces the potential that the offender will engage in criminal conduct after completing his or her sentence.
   6. To promote acceptance of responsibility and accountability by offenders and to provide restoration and healing for victims and the community while attempting to reduce recidivism and the costs to society by the use of restorative justice practices.

Here is the definition of the concept of Restorative Justice.

18-1-901. Definitions. (3)”Restorative justice practices” means practices that emphasize repairing the harm caused to victims and the community by offenses.

Restorative justice practices include victim initiated victim-offender conferences, family group conferences, circles, community conferences, and other similar victim-centered practices. Restorative justice practices are facilitated meetings attended voluntarily by the victim or victim’s representatives, the victim’s supporters, the offender, and the offender’s supporters and may include community members.

By engaging the parties to the offense in voluntary dialogue, restorative justice practices provide an opportunity for the offender to accept responsibility for the harm caused to the victim and community, promote victim healing, and enable the participants to agree on consequences to repair the harm, to the extent possible, including but not limited to apologies, community service, reparation, restoration, and counseling. Restorative justice practices may be used in addition to any other conditions, consequences, or sentence imposed by the court.

Much of the new law focuses on the use of restorative principles with juvenile offenders – but – if the victim seeks this form of communication – the courts are now authorized to provide it.

H.B. 11-1032 Restorative justice – advisements – victim-offender conferences pilot program – restorative justice sentencing option – school use of restorative justice practices- victim advisement of restorative justice.

If a defendant appears personally for arraignment, the court may inform the defendant of the possibility of restorative justice as a part of the sentence.

The act authorizes the department of corrections and the division of youth corrections to establish a pilot program to arrange victim-offender conferences if requested by the victim, agreed to by the offender, and the department determines it is safe.

The act adds restorative justice to the options a court has when it imposes an alternative sentence if the defendant is suitable for restorative justice. A suitable defendant maybe required to participate in a restorative justice victim-offender conference as a part of a probation sentence.

Formerly, juvenile diversion programs could, but were not required to, include restorative justice practices; now the programs must include restorative justice. Under former law, juvenile advisements could, but were not required to, include information about restorative justice; now the court must make those advisements.

Prior to charging a juvenile for the first time, if the juvenile would be subject to misdemeanor or petty offenses, the district attorney shall assess whether the juvenile is suitable for restorative justice. If the district attorney determines the juvenile is suitable, the district attorney may offer the juvenile the opportunity to participate in restorative justice rather than charging the juvenile.

Prior to sentencing, the court shall order the juvenile to participate in an evaluation to determine whether the juvenile would be suitable for participation in restorative justice victim-offender conferences that would be a part of the juvenile’s sentence unless the juvenile was adjudicated for an offense that would make him or her ineligible for restorative justice.

The act encourages each school district in the state and the state charter school institute to implement restorative justice practices that each school in the district or each institute charter school can use in its disciplinary program.

The district attorney must inform the victim about the availability of restorative justice practices and the possibility of a victim-offender conference.

In an article in 2011 – Alan Prendergast of Westword – analyzed certain changes to the Colorado Criminal Justice System which is taking criminal cases in a new direction – Restorative Justice makes better sense than the purely punitive approach of the past.

Here is a link to the entire article.

What follows are excerpts from and a partial summary of an excellent article published on October 20, 2011 by Mr. Alan Prendergast. It addresses section “f” of the new law – principles surrounding restorative justice.

Restorative Justice, Victim rights,

“A concept borrowed from Native American traditions and other cultures, restorative justice offers an alternative to the conventional crime-and-punishment approach of the legal system. The emphasis is on “restoring” and healing a community damaged by crime — by, for example, letting victims have more say in the justice process and requiring transgressors to admit their guilt and agree to reparations, such as fixing up vandalized property, instead of simply spending time behind bars.

Many prosecutors are skeptical of the touchy-feely aspects of restorative-justice programs; they regard the approach as far more effective in dealing with juvenile delinquency and property crimes than violent offenses. But Lee, (the author of the bill) whose wife works as a restorative-justice facilitator, believes that a focus on healing can be useful in a wide range of criminal cases, to victims and offenders alike.

Lee wasn’t proposing a change in sentencing laws or a costly new treatment regimen, just an advisement to victims and offenders that restorative justice might be an option — along with a pilot program in prisons for “victim-offender conferences” when appropriate.

He expected his bill to have strong support from victim advocacy groups. But when House Bill 1032 came up for public comment, two of the most powerful voices in Colorado criminal-justice circles were raised to oppose it.

“Nancy Lewis came up to the hearing table with Tom Raynes,” Lee recalls. “I was very surprised that they were linked arm in arm.”

Raynes is the director of the Colorado District Attorneys’ Council, a group that provides services and lobbying for prosecutors across the state. Lewis is the executive director of the Colorado Organization for Victim Assistance, a nonprofit that works closely with district attorneys and various state agencies. COVA is relatively small in numbers — its official membership is less than a thousand people — but with an annual budget of more than $800,000, a yearly conference that draws greater attendance than two national victim-advocacy gatherings, and strong ties to the law enforcement community, it’s by far the most influential victim-rights group in Colorado.

While supportive of restorative justice in theory, Raynes and Lewis had several practical concerns about Lee’s bill. They wondered what standards would be required for the professional facilitators who were supposed to determine if a particular offender and victim could meet face-to-face without further trauma to the victim. Most of all, they wanted clear language that victims were in charge of any restorative-justice effort and could decline to participate at any point.

“You can’t say to a victim, ‘You have to talk to your offender,'” Lewis says. “That’s just ludicrous.”

Lee was stunned. It had always been his intent that the program would be voluntary and initiated by victims, he says; the idea of dragging people into a healing process against their will made no sense at all. But he hadn’t made that point clear to the organized victim lobby, a force he’d failed to consult before drafting his bill.

Lee had learned a lesson that every freshman lawmaker learns sooner or later: If the victim lobby has problems with your bill, you’ve got problems. What began as a modest rights campaign decades ago on behalf of survivors of domestic violence, centered on the notion that victims of crime deserve to be heard, has grown into a formidable national movement shaping legislation, sentencing policy and public debate on crime and punishment. The movement is particularly strong in Colorado, which has some of the most far-reaching victim-rights legislation in the country — and an ample bureaucracy to administer it.

This year, more than $30 million in public monies will be spent in Colorado in the name of victim assistance and advocacy. Some of it comes from court surcharges imposed in criminal cases and is paid directly to crime victims and family members to cover everything from medical costs to burial fees.

The convoluted chain of financial relationships and shared agendas hasn’t gone unnoticed among other criminal-justice interest groups. Critics charge that the victim-rights movement has become too closely allied with government to serve its diverse constituency. “COVA has always been very clear that their mission is retribution and punishment,” says Maureen Cain, policy coordinator for the Colorado Criminal Defense Bar. “But victims come in all perspectives. A lot of times they want to prosecute to the full extent of the law, but sometimes they’re counseled into that position.

“COVA’s position has always been driven by the district attorneys,” Cain continues. “Their boardmembers are overwhelmingly district attorneys and law enforcement. You almost don’t have to talk to COVA [about legislation], because they’re just going to do what the DAs tell them to do.”

Who speaks for crime victims in Colorado? The answer is complicated, as Representative Lee discovered when he went about clarifying HB 1032 to satisfy COVA and the district attorneys. (Passed last spring, the revised bill leaves no doubt as to who’s in charge of the restorative-justice process: The phrases “victim-initiated,” “requested by the victim” and “victim-centered” appear a total of thirteen times in the final version.)

It’s customary for lawyers and judges to pay lip service to the rights of victims in criminal cases. But only in the last three decades have victims achieved substantive rights and influence in the way crimes are prosecuted. Before that, being a crime victim was mainly about feeling powerless — losing your property, your peace of mind, your health, even a beloved child or parent or sibling or lover, without warning or any say in the matter at all. And that feeling of powerlessness often continued throughout the court process

In 1992, Colorado voters amended the state constitution to formally acknowledge that victims and surviving family members “have the right to be heard when relevant, informed and present at all critical stages of the criminal justice process.” The Victim Rights Act, which has been amended five times since its creation, requires law enforcement agencies to keep victims apprised at every step of an offender’s journey through the system, from arrest and preliminary hearings to parole matters or an upcoming release from prison or jail.

Cannata now runs a nonprofit called Voices for Victims that provides transportation to parole hearings and other post-conviction services for crime victims. Over the years, he and other victim-rights crusaders have pushed for additional legislation to address sentencing inadequacies and related issues. Cannata is particularly proud of “Lynn’s Law,” passed in 2004, which requires violent felons in Colorado to serve at least 75 percent of their sentence before parole eligibility. Other changes to the parole process have eliminated offenders’ ability to waive a hearing without advance notice or to apply for halfway-house placement right after being denied parole.

VALE funds pay the salaries of many victim advocates in district attorneys’ offices and police departments. They pay for digital cameras purchased by the Otero County Sheriff’s Office and anatomically correct dolls used by the Firestone Police Department in investigating allegations of child sexual assault. And they pay for cops and prosecutors across the state to attend training and conferences sponsored by COVA and other groups, on topics such as “Drug-Facilitated Sexual Assault,” “Supporting Victims of Identity Theft” and “Officer Involved Shootings and PTSD.” In 2010, VALE funds paid out $289,186 for various organizations just to attend COVA conferences; the salaries of the nonprofit’s top employees (including Lewis), as well as an intern program operated by COVA that trains students to work with victim advocates in public agencies, are also supported by VALE grants.

Although COVA does have an emergency fund to assist victims directly when other sources have been exhausted, most of its energy is devoted to training and conferences; those activities provide its main source of revenue, apart from government grants. “That’s a very big part of the mission, to see that the person dealing with a crime victim has good training,” Lewis explains. “In other states, agencies that provide that training on a statewide level are housed in the governor’s office. Being a nonprofit, we don’t have to switch things around every time the governor switches.”

Privately, grassroots groups have suggested that some of the state money expended on law enforcement training could be better spent on more immediate victim needs. But Cannata, whose fledgling group receives a trickle of VALE funds but also relies on donations and fundraisers in restaurants, doesn’t have a problem with the arrangement. “I think the training is important to victims because it makes these people more victim-sensitive,” he says. “It reminds them of the trauma the victim is going through.”

Yet COVA’s close interactions with police and prosecutors, as well as its organizational makeup, have led some to question whether it has sufficient independence from its government sponsors. Its current fifteen-member board of directors includes six people who work for district attorneys, three police department employees and four other employees of city or state agencies. Lewis also sits on the Crime Victim Services Advisory Board, which advises the Colorado Department of Public Safety on the distribution of various state and federal victim grants. That board, too, is dominated by government interests; one member identified as a “community representative” works for the Denver district attorney.

Howard Morton calls Lewis “a good gal” but believes COVA’s priorities reflect the composition of its board. “Most of the board, and certainly most of the executive committee, is made up of DAs or employees of DAs,” he says. “Where your paycheck comes from influences you a lot.”

Morton’s group, Families of Homicide Victims and Missing Persons, has its share of disputes with prosecutors and law enforcement, particularly over the amount of resources allocated to unsolved murder cases. “Quite a few of our members are upset with district attorneys who would not prosecute their cases and left them to remain cold,” he notes. When Colorado voters considered an exemption from term limits for district attorneys a few years ago, COVA came out for the measure. Morton opposed it, and wrote what he calls “a very strong letter” to Lewis asking how the board could take such a position without consulting the organization’s membership.

Lewis laments that term limits ever passed. “My belief — and this is my belief, not a COVA belief — is that with term limits at the legislature and for district attorneys and even some sheriffs, we have seen a real erosion of people who understand victims’ rights,” she says.

As for her board of directors being stacked with prosecutors and cops, Lewis says the board includes crime victims, too. “They don’t wear something on their forehead that says ‘I’m a victim,'” she notes. “Most of them do come out of law enforcement, but our concerns are not system-driven. I think we have parted company with the DAs several times.”

To critics like Cain, though, COVA appears to be an unofficial lobbying arm for state prosecutors. “Is it appropriate,” she asks, “for this organization, which is really a district attorneys’ organization, to get all this money and hire a lobbyist and claim to be an independent group?”

Only a “very, very, very tiny part of our budget” goes to lobbying efforts, Lewis says, and prosecutors scoff at the idea that COVA is a front for their own agenda. Still, the nonprofit and the district attorneys’ council often seem to speak with one voice in the legislature — even if, behind the scenes, victims and prosecutors frequently disagree about plea bargains and sentencing options, how vigorously cases are investigated or developed, and other issues.

The fact that prosecutors often claim to represent victims or “speak” for them in legislative matters troubles Boulder District Attorney Stan Garnett. “Advocating for victims is very much a part of the role of the district attorney,” says Garnett. “However, district attorneys are not lawyers for victims. Our job is to seek justice and do the right thing in individual cases, and that sometimes means we approve a resolution to a case that the victim doesn’t want. We all run across victims who are motivated by personal revenge and other motives that are improper. Victims need to be heard, but they don’t control the process.”

The same goes for sentencing reform and other legislative battles, he adds. “There are a lot of groups that have emerged that do nothing but be a voice for victims,” he says. “That’s not the role we should play in legislation.”

Cain and others have suggested that the apparent muddling of roles could be addressed if the control of VALE funds were shifted from the judicial branch and the Department of Public Safety to the Department of Human Services. Garnett, though, thinks adding another state agency to the mix would only delay the delivery of services to crime victims and the groups that represent them.

“I don’t think that would be an improvement,” he says.

Criminologists often describe families of the victims of violent crimes as “co-victims.” The reasoning is simple: Although they didn’t suffer the crime themselves, they also were victimized, and the ongoing loss and trauma can alter their lives forever.

Last month, on the National Day of Remembrance for Murder Victims, state representative Rhonda Fields addressed a grieving gathering of co-victims outside the Denver courthouse. Fields spoke of “my crime,” and how it had changed her into a victim advocate and prompted her to run for public office. Technically, it was a crime against her son, Javad Marshall-Fields, and his fiancée, Vivian Wolfe, who were gunned down in Aurora in 2005 shortly before Javad was expected to testify as a witness to another murder; the men convicted of the killings, Robert Ray and Sir Mario Owens, are now on death row. But her audience knew exactly what Fields meant.

“We all experience grief very differently,” Fields said. “Some of us are still angry, and some of us are in deep depression…but we don’t stand alone in our grief. Your pain is my pain.”

Like Fields, some co-victims find at least a degree of closure in seeing the perpetrators caught and convicted. Others, though, have to contend with a crime that’s never solved, punished or explained. It’s that kind of pain that has been the driving force behind Families of Homicide Victims and Missing Persons, and that led Morton and his members to an unusual gambit in the state legislature two years ago — one that demonstrated that the victim movement is far from monolithic in its goals and intentions.

With the aid of volunteers, FOHVAMP created a statewide database of unsolved homicides; it turns out that three out of ten murders in Colorado are never prosecuted. The total number of unsolved killings in the state now stands at more than 1,500, by Morton’s count, and is growing by 3 percent each year. His group pushed for a state team of specially trained investigators to tackle the backlog, but state officials claimed there was no money for such an undertaking (“A Cure for the Common Cold Case,” February 14, 2008). Instead, the Colorado Bureau of Investigation managed to fund one position for a crime analyst to maintain an official database of cold cases.

That wasn’t nearly enough for FOHVAMP. In 2009, the group backed a bill by Paul Weissmann, the House majority leader, that would have funded cold-case investigations by abolishing the death penalty. Colorado has executed only one person in the past four decades, and Weissmann argued that the millions of dollars a year the state spends on the seemingly endless appeals process could be better directed to putting more killers behind bars.

District attorneys denounced the bill, describing it as a divide-and-conquer strategy. COVA and the Department of Public Safety also opposed it, while Morton found himself in an odd alliance with the ACLU, the criminal defense bar and other so-called offender advocates in lobbying for it. But he insists FOHVAMP was simply interested in getting cold cases reopened, not the larger ideological debate involved.

“We’re not one side or the other on the death penalty,” he says. “We just don’t have the investigators we need to address this problem.”

The bill squeaked through the House and was narrowly defeated in the Senate. “It came within one vote of passing both houses,” Morton sighs.

The defeat hasn’t deterred FOHVAMP from keeping pressure on the unsolved-homicide issue. In 2010 a group of 26 law enforcement professionals — including a medical examiner, a crime lab specialist, several homicide detectives and an FBI behavioral analyst — began meeting quarterly on a voluntary basis to review cold cases statewide. When Morton learned that the group had cut its meetings from two days to one and had only reviewed five cases in a year, he urged his members to “ask the head of investigations for your loved one’s case to present it to this team of experts.” The review team has since seen its requests for review rise dramatically — again making the argument for a full-time squad of investigators.

Sharletta Evans left her two young sons and their teen cousin in the car while she went into a relative’s house in northeast Denver. It was 1995, and the neighborhood had been plagued by recent drive-bys. Evans had come to retrieve another child and take him out of the line of fire.

Gangbangers cruising the area mistook her car for the ride of some rivals. They opened fire on the car and the duplex while Evans was inside. One of the bullets claimed her youngest, Casson Xavier Evans, better known as Biscuit, as he slept in the back of the parked car. He was three years old.

The shooters, fifteen-year-old Paul Littlejohn and sixteen-year-old Raymond Johnson, were sentenced to life without parole. Biscuit’s mother was sentenced to grief and sorrow and trying to find a path through something that didn’t make sense at all.

The victim advocates did what they could. “They made sure my family understood the charges and that we knew whenever there was a hearing,” Evans recalls. “There was victim compensation that helped us bury our son.”

But after the killers were put away, the support apparatus moved on to the next case. And everyone seemed to expect Evans to move on, too. “You’re getting full attention, and then you’re just kind of left,” she says.

Evans became involved in anti-violence campaigns and started a program for at-risk kids called RedCross BlueShield Gang Prevention. She struggled with the bitterness of her loss and sought to forgive the two boys, now men, who had taken her son from her. A turning point came when Littlejohn’s mother asked if she could come see her.

“She came to me and took responsibility,” Evans says. “She expressed how her actions, her lack of parenting, aided in his decision-making. She apologized for him and for herself.”

The visit convinced Evans that she wasn’t wasting her time in her gang-prevention efforts, which focused on promoting parenting and addressing the “hole” in the life of the typical gangbanger. “It let me know I was on the right track,” she explains. “It was a huge part of my healing.”

Both of the shooters have written letters from prison expressing remorse for the killing. Two years ago, Evans decided that she wanted to meet Raymond Johnson face-to-face: “I felt I had reached a cap in my healing, and I needed to go further. This was something I needed to do for myself, my family and my community, as well, which has been affected by this. I would like it to be effective for him, too, so he can be the most productive person he can be in his situation.”

But until the passage of the restorative-justice bill this year, there was no process in Colorado’s adult justice system to allow such meetings. Evans testified in support of the bill. Among the opponents who showed up that day was Denver District Attorney Mitch Morrissey. It was “very challenging” and uncomfortable, Evans says, to find herself on the opposite side of the fence from the man who put her son’s killers away.

Evans hopes to be able to sit down and talk to Johnson soon. But it’s not clear when that might actually happen; the Department of Corrections has a list of hundreds of victims who want to meet their offenders and no funds to pay for the costs of the meetings, including transportation and facilitators. In order to get the bill passed, Representative Lee and other sponsors agreed to cut its fiscal impacts to the bone.

“I pulled a rabbit out of a hat,” Lee says. “It was all in the spirit of compromise, with no money attached.”

Lee says he’s working with the DOC to get the pilot program going. He has dozens of restorative-justice facilitators who’ve agreed to provide services for free and says prison officials have been “very forthcoming” in their concerns. “I don’t know if there’s institutional opposition to restorative justice,” he says. “There is a lack of understanding. People are afraid of the unknown.”

Many victim groups have welcomed the arrival of such a program, even if the funding is meager. “It’s not a program for everybody, but it should be there for people who need it,” Cannata says. “It has to be a controlled environment, or it will damage both parties. If it helps victims move on, that would be a good thing. And if it influences offenders so that they never commit another crime, so much the better.”

Evans plans to start a restorative-justice initiative of her own, working with victims to “get their needs met in a timely manner.” But right now she’s struggling, like a lot of nonprofit activists, to collect just a few drops from the vast streams of grant money that flow toward the major victim interest groups in the state. “I have spoken with COVA, and they’ve kind of shooed me away,” she says. “They’re not really interested in restorative justice.”

Her gang-prevention program lost its offices a few months ago after pilot funding ran out. “We’re looking for funds for a building now. A lot of minority nonprofits have their credibility questioned, but we’ve been very active in the Arapahoe County community for years. We do need a building, though, to be effective.”

Lewis says COVA welcomes the growing diversity of the victim movement. “I’m encouraged by the Howard Mortons and the Joe Cannatas,” she says. “There has been more grassroots victim legislation than with any other cause. Not all of it has been good. But then you have people who serve a population that hasn’t been served and bring to light issues we weren’t paying attention to.”

Evans has thought for years about what she would say if she ever sat down with Raymond Johnson or Paul Littlejohn to discuss the terrible thing they did that extinguished one life and altered so many others. She knows the words. But she’s still finding her voice.