The Case for JLWOP Reform
Introduction
In 2012 the United States Supreme Court ruled that imposing a mandatory sentence to life in
prison without the possibility of parole violates the Bill of Rights. In Miller v. Alabama, the U.S.
Supreme Court held mandatory life without parole sentences of juveniles in homicide cases
violates the 8th Amendment’s prohibition on cruel and unusual punishment.
The Miller decision follows the U.S. Supreme Court decisions in Roper v. Simmons, where the
juvenile death penalty was abolished in 2005, and Graham v. Florida, where life without parole
for non-homicide cases was abolished in 2010.
The Supreme Court has repeatedly held children are different from adults for the purposes of
sentencing.
Miller requires individualized sentencing and a meaningful opportunity for release.
Colorado
In Colorado there are currently 48 former juveniles sentenced to a mandatory sentence of life
without the possibility of parole. There used to be 50 juveniles serving JLWOP, but one has
committed suicide in prison (Gabriel Adams in San Carlos), and another (Luis Montoya)—a
former 14 year old, has been released pursuant to a plea agreement entered with the Denver
District Attorney’s Office.
The Colorado General Assembly has not yet acted to implement the Miller decision. This bill
brings Colorado into compliance with Miller and provides a new developmentally appropriate
sentencing range for future juveniles convicted of first degree murder.
The 2006 law enacted only eliminated JLWOP prospectively and set a new sentencing range of
life with the possibility of parole after 40 calendar years. This was decided before the U.S.
Supreme Court decisions in Graham v. Florida and Miller v. Alabama, which counsel a different
approach to individualized sentencing.
Colorado Courts
Since the legislature has not acted, Colorado courts are taking steps to resolve the issue. The
Colorado Supreme Court has yet to rule, but lower appellate court decisions have reached
conflicting opinions as to the appropriate remedy in the absence of legislative action.
The Colorado Supreme Court has heard two oral arguments on the issue.
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What the Bill Does
This bill provides a new sentencing range for juveniles convicted of first degree murder for
offenses that occur after July 1, 2015, and for the juveniles currently serving life without parole.
Thus, the bill provides a path for Miller compliance that is consistent with future cases.
What the Bill Does Not Do
The bill does not affect juveniles sentenced to life imprisonment with the possibility of parole
after forty calendar years for crimes committed between July 1, 2006 and July 1, 2015.
While a mandatory life imprisonment with the possibility of parole after 40 calendar years may
violate the 8th Amendment, no court has yet made that ruling. Furthermore, in Colorado the
Herrera decision states legislators cannot change a sentence range after it is final. Thus,
without a finding that the 40 to life sentence is unconstitutional, the legislature cannot
retrospectively change the sentencing range.
There is still some relief available to a juvenile serving life with parole after 40 calendar years
under C.R.S. 17-22.5-403.7, Parole eligibility for juvenile convicted of class 1 serving 40 to life.
The Differences between Current Law and the Bill
Current Law
Proposed Bill
JLWOP
Life with parole after 40 calendar years
24 to 48 years in prison, 10 years parole
Life with parole after 20 calendar years
Mandatory Sentence
Judicial Discretion to impose either a lengthy
determinate sentence or an indeterminate life
sentence
Parole is for life
SAME: Parole is for life
There is no earned time or good time for
juveniles convicted of class 1 felonies.
There is no earned time for juveniles
sentenced to life.
There is earned time for juveniles sentenced in
the determinate range in future cases but
juveniles must serve 75% of their sentence.
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Anticipated Questions and/or Opposition Statements
Did the legislature abolish JLWOP in 2006 and
replace it with life with parole eligibility after
40?
Only prospectively. The 2006 law was enacted
before Graham v. Florida and Miler v.
Alabama.
Is Miller retroactive?
The Colorado Attorney General has argued a
“fair and just result” requires Miller be applied
retroactively.
The United States Attorney General’s office
agrees Miller is retroactive.
The U.S. Supreme Court was about to hear a
case to decide whether Miller was retroactive
but the US Attorney General agreed to plea
agreement that mooted the case. Five cases
are being considered by court 3/20/15.
The majority of states have ruled Miller IS
retroactive:
Illinois, Iowa, Massachusetts, Mississippi,
Nebraska, New Hampshire, South Carolina,
Texas, Wyoming, Florida (10 states), and
California intermediate court
Not retroactive states: Louisiana, Michigan,
Minnesota, Pennsylvania (4 states), and
Alabama intermediate court
The majority of federal circuit courts ruled
Miller IS retroactive:
5th, 3rd for purposes of filing habeas
1st, 8th, 2nd, accepted prosecutor’s concession
Two circuit courts say no (11th, 5th)
Are you rushing legislation when the Vigil case
was argued two weeks ago?
Miller was decided in 2012 and reform is long
overdue. It is the legislature’s failure to act,
that is leading to inconsistent court decisions.
The Colorado also heard oral argument June 4,
2014 in three JLWOP cases and has yet to
issue ruling.
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The Wilder court recognized that “this is an
area for legislative action, but pending
legislative action, it is incumbent on us to
provide our interpretation of the most
appropriate remedy to implement Miller.
Is this an ex post facto law?
There is no ex post facto problem with the Bill,
since an ameliorative change to the
sentencing scheme, like the one in the Bill, is
“incapable of violating the ex post facto
clauses.” People v. District Court, 834 P.2d
181, 200 (Colo. 1992)
Doesn’t Miller allow for a sentence of life
without parole if there is judicial discretion to
impose a lesser sentence?
Correct. Miller did not categorically ban on
life without parole sentencing, though it said
such sentences would be rarely justified.
However, Colorado already abolished life
without the possibility of parole in 2006.
Where does the 20 year minimum come from,
what is the justification for cutting the
minimum in half?
Developmental research recommends a look
back every 10-15 years, a twenty year term is
more than adequate to determine whether a
juvenile is rehabilitated
Why don’t we just make the 2006 bill that
provides an opportunity to parole after 40
calendar years the sentencing range for the
JLWOPS.
Life with the possibility of parole after 40
calendar years is on the extreme end of
sentencing, even for adults convicted of first
degree murder.
Most states have a minimum sentence in the
20-25 year range.
Moreover, more states are looking at even
lower sentencing ranges for juveniles
convicted of first degree murder.
 West Virginia created 15 years to life
 Nevada is considering 15 years to life
Why not just impose an indeterminate
Colorado’s sentencing laws were created for
sentence, why include a determinate range for adults. Since the Supreme Court has found
first degree murder?
juveniles as a class are categorically less
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culpable than adult, it makes sense to create a
determinate option for the cases that warrant
that type of sentence, like felony murder cases
where there is no requirement that a juvenile
intend to kill or be the actual killer.
Why did you select 24 to 48 years?
The sentencing range of 24 to 48 years is
between first and second degree murder.
The range for second degree murder is 16 to
48 years. Under this bill a juvenile convicted
of first degree murder could never get a 16
year sentence, so there is a distinction
between first and second degree murder.
Why didn’t this proposal go through the CCJJ?
It is the legislature’s prerogative to
Miller was decided in 2012 and the CCJJ, like
the state legislature, has made no apparent
effort to address it. Courts are moving forward
and the time to act is now.
They will be immediately eligible for parole?
No, everyone has to be resentenced first, and
the bill lays out a timetable for parole
eligibility
Life Sentences in Colorado, C.R.S. 17-22.5-104(2)
Before July 1, 1977
Life with parole after 10 calendar years
Between July 1, 1977 and before July 1, 1985
Life with parole after 20 calendar years
Between July 1, 1985 and before July 1, 1990
Life with parole after 40 calendar years
July 1, 1990 to Present (for Adults)
Life without the possibility of parole or death
July 1, 2006 to Present (for Juveniles)
Life with parole after 40 calendar years
THIS BILL:
7/1/1990 to 6/30/2006, and starting 7/1/2015
Life with parole after 20 calendar years
Determinate sentence of 24 to 48 years
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Colorado appellate cases to date
People v. Wilder
2/26/2015
Court of Appeals
-sentence must be vacated
-remand for resentencing consistent with
Miller
Attorney General conceded retroactivity
-POWER TO DEFINE CRIMES/SENTENCES
VESTED EXCLUSIVELY IN THE LEGISLATURE.
THIS IS AN AREA FOR LEGISLATIVE ACTION
-disagrees with Banks/Gutierrez-Ruiz
severability analysis
-adopts the approach in Tate
-individualized sentencing using Miller factors
-remand for resentencing OPEN, but trial court
should consider class 2 sentencing range (1224 years) and effect of extraordinary
aggravating factors
People v. Gutierrez-Ruiz
2014
Court of Appeals
-disagreed with mandatory sentence
-individualized determination of whether
JLWOP is appropriate
Attorney general conceded retroactivity
-remand to: (1) individualized determination
of JLWOP; (2) if no JLWOP then 40 years
People v. Valles
2013
Court of Appeals
-followed Banks reasoning
BUT Judge Taubman (author of Valles)
backtracked in his concurrence on the Wilder
case, stating he now believes an individualized
sentence is required. AND wrote why Miller is
retroactive in the Wilder case.
Attorney general conceded retroactivity
People v. Banks
2012
Court of Appeals, NOW IN SUPREME COURT
-sentence was unconstitutional
-only authorized penalty was life with 40
through severability
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Attorney general conceded retroactivity
-affirmed sentence to life, vacated without
parole with instructions to modify sentence to
include possibility of parole after 40
-severing to 1985 statute, consistent with
2006
People v. Tate
2012
Court of Appeals, NOW IN SUPREME COURT
Argued June 4, 2014 –no supreme court
decision
People v. Jenson
SUPREME COURT
Argued June 4, 2014—no decision
People v. Vigil
SUPREME COURT
-Local DA (Jeffco) raised retroactivity, two DA’s
(Denver, Arapahoe) signed amicus brief
-issues are: (1) retroactivity and (2) remedy
People v. Wilder & LEGISLATION
¶ 39 We recognize that “[t]he power to define crimes and prescribe punishments is vested
exclusively in the legislature,” and the judiciary’s duty is only to impose sentences “within the
legislatively mandated limits.” People v. Montgomery, 669 P.2d 1387, 1390 (Colo. 1983).
However, given that the part of section 18–1.3401(4)(a) applicable to defendant, who
committed a class 1 felony in 1998, is unconstitutional as applied to him, the trial court is, in
effect, left with no applicable legislative sentencing guidelines to apply on remand.
*8 ¶ 40 We recognize that this is an area for legislative action, but pending legislative action, it
is incumbent on us to provide our interpretation of the most appropriate remedy to implement
Miller.4 Due to our concerns with the imposition of another mandatory sentencing scheme
adopted by the divisions in Banks and Gutierrez–Ruiz, we have determined to adhere to the
following approach (also considered by the division in Tate ) and remand to the trial court for
an individualized sentencing determination based on the factors elucidated in Miller.
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Legislative Intent in 2006
(a) Under the existing sentencing laws, a juvenile who is convicted as an adult of
a class 1 felony is automatically sentenced to life imprisonment without the
possibility of parole, which is the same sentence that applies to an adult who is convicted
of a class 1 felony and who does not receive a death sentence;
(b) Persons younger than eighteen years of age may commit crimes that are
sufficiently serious, violent, or heinous to warrant punishment in the adult correctional
system, and it is in the interest of public safety to ensure that a juvenile who commits an
adult-level crime receives an appropriately severe degree of punishment in correlation to
the level of crime committed;
(c) Because of their level of physical and psychological development,
juveniles who are convicted as adults may, with appropriate counseling, treatment
services, and education, be rehabilitated to a greater extent than may be possible for
adults whose physical and psychological development is more complete when they
commit the crimes that result in incarceration;
(d) A sentence to lifetime imprisonment without the possibility of parole for a
juvenile who is convicted as an adult of a class 1 felony condemns the juvenile to a
lifetime of incarceration without hope and, in most cases, without education or
rehabilitation services, and results in the irredeemable loss of a person to society.
(2) The general assembly finds, therefore, that it is not in the best interests of
the state to condemn juveniles who commit class 1 felony crimes to a lifetime of
incarceration without the possibility of parole. Further, the general assembly finds
that it is in the interest of justice to recognize the rehabilitation potential of juveniles
who are convicted as adults of class 1 felonies by providing that they are eligible for
parole after serving forty calendar years of their sentences.
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