- - Sunday, August 12, 2018


Too often the debate about criminal justice reform has deteriorated into knee-jerk, quick fixes designed only to address a statistic or to minimize accountability for those who run afoul of our laws. Real reform requires changes far bolder — make naturally expiring laws, be transparent in sentencing, expunge outdated records and be braver on pardons.

The notion of sunsetting laws, that is to give them an expiration date, is not new. In his Sept. 6, 1789 letter to John Adams, Thomas Jefferson argued that one generation has no right to bind another and proposed that “every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.” Jefferson believed “a law of limited duration is much more manageable than one which needs a repeal.”

While we have experimented with sunsetting some civil laws, regulations and — recently — tax code changes, we have not applied this principle to our criminal laws. We should.

No better mechanism exists to ensure that our criminal laws reflect the values and views of the current generation than to set them to expire, unless the legislature affirmatively votes to keep them alive. The forced evaluation and debate as to which behaviors should constitute crimes, appropriate sentences and alternatives to incarceration will keep our justice system modern, relevant and effective.

Such a system takes into consideration those laws that have proven to be successful, ineffective laws in need of amendment, and new laws to protect us from conduct previously unimagined — like cybercrimes and revenge porn.

Each new substantive law should be reviewed after an initial three-year period. Thereafter, each law would expire after 10 years or any period determined by the legislature. Changes in our substantive criminal laws will no longer be the product of anecdote or a hasty response to some high-profile case from somewhere outside of Colorado.

In June 2016, Eric Henderson was sentenced to eight years in prison for driving his truck into State Trooper Jamie Jursevics, a new mother, while he was driving drunk and then fleeing the scene of the homicide. He is not going to serve anywhere near eight years in prison.

Between earned time, good time, time given for classes taken, transition to community corrections and general parole eligibility, Henderson likely will be out of prison before Jamie’s daughter leaves pre-school, as early as the end of this year. Judges have to rely on the Department of Corrections (DOC) to calculate the exact minimum sentence, and DOC does not know. Even when there is a “mandatory minimum” sentence, it is not really the minimum sentence.

This is not justice.

For a non-violent felony — even one like car theft — committed before the age of 25, is 10 years sufficient for someone to be labeled a “convicted felon?” Fifteen? What if during that time, the individual has lived a crime-free life, been gainfully employed (admittedly tougher with a conviction), and achieved certain education and rehabilitation milestones?

While it is extremely difficult to earn a felony conviction in Colorado, we should work to create more incentives and paths back to full citizenship and participation in our economy for those who have offended, especially in their relative youth. Whatever process we create, it must never be automatic. It must be the product of deliberate discretion by representatives across the criminal justice spectrum and community, including prosecutors, victim’s groups and the judiciary.

While pardons should be reserved for those who have done significantly more than merely live a crime-free post-conviction life, which is the minimum expectation for us all, neither should it be limited to being given only in the last year of a two-term gubernatorial incumbent.

There are members of our community, like Wayne Thomas, who long-ago earned the ability to win a pardon for his transgressions as a 17-year-old. Wayne Thomas, a juvenile convicted as an adult for serious charges, is more than reformed; he is a reformer, who speaks of his experiences to those who are seemingly trapped where he once was. There likely are others like Wayne Thomas.

We need a governor with the guts to do the right thing when it is right to act, not just when it is politically safe to act. Those pardoned should be celebrated throughout the community. We should herald them as examples of the best possible outcomes of our criminal justice system. Rehabilitation is as much a goal of our system as is deterrence, punishment and public safety.

There is much more we can do in the areas of transparency, courtroom access and judicial reform, but these proposed reforms provide a framework with which we can establish the best criminal justice system for Colorado for today and tomorrow.

George Brauchler, a district attorney and a colonel in the Army National Guard, is a Republican candidate for attorney general in Colorado.

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