March 14, 2007
CBA Criminal Sentencing Project Meeting Minutes from March 14, 2007.
Tammy Niemann in Fort Collins. Works with Eric Fisher and Dave Maestas, former prosecutor, former criminal defense, now civil litigation.
Charlie Garcia, Drug Court, Public Defender
Sean McAllister, Solo Practitioner
Ann Aber, Public Defender
Chuck Turner, CBA
Ken Tomlinson, Probation Services
Ken Plotz, Senior Judge
Hans Meyer, Public Defender
Blake Harrison, National Conference of State Legislators
Michael Goodbee, DA's Council
Brian Vicente, Committee organizer
Mike Krauss, Independence Institute in Golden
Jessica Spangler, Legal Intern for Brian Vicente
Summary of issues discussed:
i. Criminal Justice Commission." Should judges be on it? Scarboro says yes.
ii. List of roles of members of commission. Sunset provision.
iii. Bar Project to consider producing a report to advise the sentencing commission on drug policy.
iv. Drug Court needs to expand to other counties, needs coordination of philosophy to keep the clients out of prison even if they continue to use. (short term jail instead).
v. No prison for technical probation violations, even for felons. (short term jail).
vi. Crime of escape from 1/2way house for drug offenders needs reclassification.
vii. Bill to help seal criminal records for employment.
viii. Future speakers? Greg Long, former head of drug court, Helen Morgan, DA for drug court, Janet Wood, head of ADAD, Bob Dorshimer, former drug czar, Lon Hayman, defense attorney, African-American minister community, Roger Goodman of WA
x. Scarboro will forward latest draft to us so we can push for changes.
Jim Scarboro: Peter Weir (Director of Public Safety) says legislature is drafting a bill now. Would take a hard look at prevention as well as sentencing and treatment. They want to call it criminal justice commission instead of sentencing commission. Representatives from judiciary, executive, legislature and various stakeholder communities, prosecutor, defense attorneys, sheriffs. Will be a large commission. Better chance of consensus with diverse communities of interests. Pew charitable trust to provide technical assistance to co if we adopt a sentencing commission (collection and analysis of data). Facts have a way of ending arguments. Weir said there would be a statute last Monday. This week likely. Key idea different from other sentencing commission statutes: the statistic gathering function will be in the DCJ. Part of Dept of Public Safety, responsible for keeping and gathering certain stats by statute. Probably to save money. Ritter's group has come up with private funding for this. Gov is so committed, potential to be a real leader. Colorado is late, but there is a lot of energy and enthusiasm for this.
Charlie Garcia: Public Defenders should be on commission. Judicial department. Crime Commission in Denver, ethics committee said that judges should not be a part of these organizations. Will send written opinion to Scarboro.
Scarboro: I don't think there's an ethics issue at all. Participation of judges is key. They do the sentencing. Judges are too isolated in Colorado from everyday events. We need the expertise of judges in some areas and we need them to be educated. The issue is whether it's reasonably likely to present a conflict. It depends on the particular judges situation.
The appointment process: Gov was inclined to do everything through the executive. Important to have a commission and have reps from affected groups. Proposed to him certain defined positions to be occupied.
For example: the Director of Dept of Public Safety, Corrections, Probation, Parole, etc. DA's Council. Two prosecutors, two defense attorneys, with a procedure for selecting all these. Judges appointed by chief justice or Gov and AG. Members of legislature selected by minority and majority leaders.
Pay close attention to affected communities and make sure they are represented. Four year terms, half are two year terms initially.
An Executive Director. Head of Chiefs of Police Association. County sheriffs. Mental Health.
Ann Aber: A seat for Public Defender or designee, or defense attorneys?
Scarborough: Public Defender did have one appointment or both. A designee from a victim's organization too. Gov wants to be more inclusive.
A sunset provision. Should be permanent, but Weir said there was a sunset provision in it. NJ has a temporary one that became permanent. Some temporary commissions have fizzled, but I'm not worried about this one fizzling. If it makes sound recommendations to the legislature everyone wants to keep it.
Possible reasons for sunset: If it fails to meet cost savings. To avoid accusations of setting up a big bureaucracy.
Scarboro: A good Executive Director is key. Assumes there will be hearings. If asked to speak I will. If any of us want to weigh in that would be important.
Garcia: The criminal defense section has already done that.
Ken Plotz: Is there any specific opposition to the bill?
Scarboro: Not aware of any opposition by groups.
Vicente: Possible directions for this project: Advisors to sentencing commission on drug policy. King County examined research and transformed the drug policy and CJ laws throughout Washington state.
Mike Krauss has done excellent research and writing on drug policy. Coming up with practical policy options for drug related crime, programs to divert people from CJ system or into treatment, reclassification from felony to misdemeanor.
McAllister: Can we provide input to the sentencing commission by writing this Report? We can suggest to the sentencing commission on probation, parole, and drug policy.
Garcia: Ritter loves drug court, reopened last Friday. We have tremendous support for drug courts. Doesn't require reclassifying, but is a step in the right direction.
Question: Why did it fall?
Garcia: Funding started to disappear, they started pulling away prosecutors. At the same time, had an increase in felony filings. It was shut down in 2002. Hickenlooper gave us 1.2 million to bring it back, through Crime Commission. It was a lot of work, 80 hour weeks. Judge Hoffman wrote a law review article that it didn't work. We can show it works over the next couple of years.
Question: Drug court slower route to prison?
Garcia: Never agreed with that. There is a success rate. Even if they fail, if they have a misdemeanor they are let go. They get deferred judgments. People are going to fail, but they will fail at trial too. We were the fourth drug court in the country. Defense attorneys feel we are selling people out. You can go to trial, you are not in a better position. Drug Court is an opportunity to succeed, and how many second chances are you given? If the judge understands relapse, then it will work. Or give them 60 days in county jail and let them go after 2 years of hot UA's.
Ken Tomlinson Probation Services: 22 drug courts and 22 philosophies. No Consistency. Supportive of drug court.
McAllister: Payment for treatment?
Garcia: Sliding scale. For now. Funding is an issue.
Aber: Will clients be revoked for failure to pay?
Garcia: Difficult call, but for inability to pay I don't think we will see that. District Court judges don't want to see revocations for that, for technical violations you can deal with at Drug Court. It's judge by judge, magistrate by magistrate. They make the call. Whether it's successful depends on who's running it. It was successful in Miami with Janet Reno.
Mike Krauss: Could those misdemeanors have been charged as felonies?
Garcia: Possession of less than a gram of any substance is class 6 felony. First felony is a misdemeanor guarantee.
Aber: Charged with class 6, standard offer is misdemeanor.
McAllister: We need some broad statements we could all endorse and send to the sentencing commission.
Aber: Ken (Tomlinson's) idea is worthwhile. The chance of success is higher. A lot of work, though, and consensus building. The commission literally out of Denver, forming alliances and having discussions and better address the needs of the addicted community.
Tomlinson: The technical revocation issue is huge. A lot of $ taking people back to court. Do we really want to spend over $20,000 to house someone who had some behavior? Join with larger criminal justice community to address that.
Aber: We don't have the authority to tell each county how to run their drug courts.
Tomlinson: Drug Court Coordinator would reign it in, philosophy, treatment approach.
Garcia: We have national models, the Drug Court Association. They've been spending years on this. It's easy to access. It's getting the buy-in that's the problem, from the DA, from the judge.
Escape is a big problem. The revolving door is not a joke. Possession of cocaine, violates deferred judgment, violates probation, violates community corrections, goes to community corrections, walks away. Followed by three escape cases so ends up with life in prison from a gram of cocaine. Escape is a class 3 felony, habitual criminal, 48 years for a half gram. It's largely drug cases.
Tomlinson: We are doing something similar in probation. They go to prison because they walked away from probation. Should we be putting these people in prison?
Vicente: Drug Court, escape, other issues. To follow King County model, we could serve an advisory role. We could have a CLE with legislators educating them, print up a report on Bar Association letterhead, send it to legislators and judges, make follow up calls, this could be a report that does not just collect dust.
Aber: See if the judges will let you make a presentation at their conference.
Vicente: Spoke to Criminal Law Section and Probation advisory group.
Sean: Pass around ideas for reform and see if we can get consensus.
Comments: Expunge or seal criminal record to get a job. A Sealing bill is in now and is in trouble.
Vicente: Speakers and continuing education: Greg Long, head of drug court, wants to come next month. Janet Wood, head of ADAD. Bob Dorshimer, former Denver Drug Czar. Article in Colorado Lawyer.
McAllister: Will draw attention to the project's work. This is an attempt to put facts on the table.
Vicente: Webpage off CBA website cobar. Our mission, set up so I can update it. Don Quick had a great article calling for a sentencing commission in the Post. Gail Johnson and Chuck have been talking about outreach to non-legal groups. That is an important niche, diverse, bipartisan non-partisan group. Religious leader, Lon Hayman, defense attorney, African-American minister community.
Garcia: Greg Long is no longer in Drug Court, also invite Helen Morgan DA for Drug Court. Suggest that CBA have representation on finished commission.
Vicente: Scarboro will send us latest draft and we can contact Weir and push for changes. How often to meet?
Comment: During legislative session 1 x mo. New head of DCJ. Jeannie Smith. What kind of a voice can we have in this commission, she can tell us. Will talk to her.
Brian: Roger Goodman state legislator in Washington state launched the idea of bar projects. Wants to come out and talk to us in May. Will forward legislation to everyone once he gets it.
Comment: A spot for us on the commission is a good idea. As long as the list is long, let's add to it. Some of us here today might serve on this as representatives of some of the agencies. We can get in through the back door if not the front.
Vicente: Will email next meeting date.