Archive for the 'Justice' Category

Direct File Review In Colorado Good For Juvenile Justice

Posted by on Mar 09 2012 | criminal justice, Criminal Law, Justice

On March 7, House Bill 1271 passed out of the Colorado House Judiciary Committee by a 9-2 vote. The bill would allow, with certain exceptions, judicial review of district attorneys’ decisions to charge juveniles as adults in criminal cases. Currently, DAs have unlimited discretion to “direct file” against juveniles without review by a judge. The bill now heads to the appropriations committee.

The following is a letter sent in February to Colorado lawmakers on the need for judicial oversight of direct file by myself and Marc Levin from our sister think tank, the Texas Public Policy Foundation (TPPF). The letter is on behalf of the Independence Institute, TPPF and Right on Crime:

Dear Colorado Policymakers,

We are writing to share our perspective on modifications to Colorado’s direct file
policy, which would ensure judicial review of juvenile cases transferred to criminal court.

As you know, the Independence Institute is a free market think tank that has been
providing research and analysis to Colorado’s policymakers for almost thirty years. The
Independence Institute seeks to empower individuals and enhance personal and economic
freedom. The Institute’s Justice Policy Initiative researches the impact of criminal justice
policies and practices on prison spending, law enforcement priorities and the lives and
liberties of Coloradans.

In that same vein, Right on Crime works to advance conservative, principled solutions
that are proven to reduce crime, lower costs and restore victims. Right on Crime is a national
initiative led by the Center for Effective Justice at the Texas Public Policy Foundation, one
of the nation’s leading state-based conservative think tanks. The Texas Public Policy
Foundation’s mission is to promote and defend liberty, personal responsibility, and free
enterprise by educating policymakers with academically sound research and outreach.

Through TPPF’s Center for Effective Justice, which researches policies that cost effectively
protect public safety, restore victims, and reform offenders, we have been at the
forefront of criminal justice initiatives in Texas that have gained national attention by
reducing both the incarceration rate and, most importantly, the crime rate. These principles
are anchored by our Statement of Principles, signed by some of the nation’s most respected
conservative leaders.

The Independence Institute, TPPF, and Right on Crime do not endorse specific
legislation, but we would like to briefly provide our perspective on reformation of
Colorado’s direct file policy.

Under current law, prosecutors have the legal authority to unilaterally transfer a
juvenile delinquency case to criminal court without judicial review. Such a decision cannot
be appealed by the juvenile.

The unique circumstances surrounding juvenile delinquency require care on the part of criminal justice system. Research has found juvenile offenders are especially capable of reform and rehabilitation, and the juvenile justice system is uniquely positioned to both hold youths accountable and change their ways.

Further, even serious juvenile offenders often benefit from the programming and
services available only in juvenile detention facilities. Facilities tailored to juveniles are
typically more effective and safe for these offenders, and the decision to transfer a juvenile to
criminal court forecloses these opportunities.

For these reasons, we believe that judges should have a role from the outset in
determining the proper venue for the adjudication of a juvenile. Certainly, taking advantage
of judicial expertise in making such difficult decisions does not preclude prosecutors from
obtaining a judicial determination that some youths’ criminal actions warrant transfer.
However, judges as neutral arbiters are best situated to objectively consider the facts and
circumstances of each case.

This is the procedure in Texas, where the process of trying a juvenile’s crimes in
criminal court, called certification, must be judicially directed. The judge is required to find
both probable cause the offense was committed, but also that the welfare of the community
demands criminal proceedings, based on the seriousness of the offense or the background of
the youth.

Based on a totality of the factors, we believe that judicial review must be an integral
part of transferring a juvenile to criminal court, given both the rehabilitative aspects of
juvenile offending and the specialized programing offered in the juvenile justice system. We
would encourage you to consider these factors in your deliberations regarding Colorado’s
direct file policy.

In conclusion, we wish to thank you for your public service and your consideration of
our perspective on this topic.

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Independence Institute Writers In The News

Posted by on May 06 2011 | criminal justice, Health Care, Justice, Media, obamacare, PPC

ObamaCare health exchanges, our fiscally irresponsible Congress and overcriminalization in Colorado are all topics of published work by Independence Institute writers this week.

First, check out research associate and health care blogger Brian Schwartz in the Denver Post as he warns us against getting mugged by a politically controlled insurance exchange.

Then check out Mothers Against Debt (MAD) director Amy Oliver Cooke in The Daily Caller as she calls out members of Congress on their “reckless spending that enslaves our children to a nightmarish economic future of crippling debt, high unemployment, skyrocketing interest rates, outrageous tax rates and limited economic opportunities.” Geez Amy, tell us how you really feel.

And over at the Huffpost Denver, I take a look at a recently passed bill that will hopefully give lawmakers pause before passing new punishable offenses that further overcriminalize the economic and personal lives of Coloradans.

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Check Out The Audio Of Our Sentencing Reform Panel Event

Posted by on Feb 15 2011 | Criminal Law, Drug Policy, Justice, PPC

In early February, the Independence Institute, the Colorado Criminal Justice Reform Coalition, and the Pew Center on the States held a panel event on the ongoing work of the Colorado Commission on Criminal and Juvenile Justice (CCJJ) and the prospects for criminal sentencing, parole, and other criminal justice related reforms in the 2011 Colorado General Assembly.

The event brought together sometimes disparate interests including advocates for limited government, criminal justice reformers, representatives of both the Colorado Criminal Defense Bar and the Colorado District Attorney’s Council, and lawmakers, including a Denver Democrat and a Colorado Springs Republican.

The remarks of all the panelists are available as audio files, and well worth listening to for anyone with an interest in criminal justice issues in Colorado.

My own very brief introductory remarks available here.

Remarks by Pat Steadman, Colorado State Senator and CCJJ drug policy task force member available here.

Remarks by Mark Waller, Colorado State Representative and CCJJ commissioner available here.

Remarks by Maureen Cane, Policy Director of the Colorado Criminal Defense Bar and CCJJ task force member available here.

Remarks by Tom Raynes, Executive Director of the Colorado District Attorneys Council and CCJJ task force member available here.

Remarks by Christie Donner, Executive Director of the Colorado Criminal Justice Reform Coalition and CCJJ task force member available here.

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Independence Institute Event: Sentencing Reform In The 2011 Colorado General Assembly

Posted by on Jan 09 2011 | Citizens' Budget, Criminal Law, Drug Policy, Events, Justice, PPC

State spending does not drive the prison population.  Rather, just like an entitlement, the prison population drives state spending.  The legislature’s ability to affect the prison caseload, and thus the corrections budget, rests in its prerogative to write, and when necessary, re-write the state’s criminal sentencing and parole laws and policies.

In 2010, Colorado lawmakers passed and Governor Ritter signed a half-dozen sentencing and other criminal justice-related bills that were generated out of the work of the Colorado Commission on Criminal and Juvenile Justice (CCJJ).  All of these bills were fairly modest in scope (an appropriate enough approach to most criminal justice reform efforts), but taken together it was the most significant effort at sentencing reform, and thus prison spending reform, in Colorado in the last twenty-five years.  Indeed, the last time the Colorado legislature took this big a swipe at sentencing was in 1985 with House Bill 1320, which not only increased the minimum sentences for crimes of violence, but also doubled the maximum penalties for all levels of felony crimes, regardless of the nature of the crime, in Colorado’s presumptive sentencing range.  Colorado taxpayers have been paying the price of runaway prison spending, with a less-than-clear public safety benefit, ever since.

The CCJJ is still working, and there will be both more recommendations and more sentencing and criminal justice-related bills in the 2011 Colorado General Assembly.  So the Independence Institute is teaming up with the Colorado Criminal Justice Reform Coalition and the Pew Center on the States to throw a panel event to find out just what is on tap for sentencing reform in Colorado this year.

The event will be Tuesday, Feb. 8 at 5:00 PM at the University Club, just north of the Colorado State Capitol.  Panelists include State Representative and CCJJ commissioner Mark Waller; State Senator and CCJJ drug task force member Pat Steadman; Christie Donner, Executive Director of the Colorado Criminal Justice Reform Coalition and CCJJ task force member; Richard Jerome from the Pew Center on the State’s Public Safety Performance Project and yours truly from the Independence Institute.

Details available here.  And after you RSVP, you can get prepped for the event by reading the sentencing reform section of the Independence Institute’s Citizens’ Budget project.

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Prop 102 A Danger To Liberty; Antithetical To Principle Of ‘Presumed Innocent’

Posted by on Oct 29 2010 | Justice, PPC

Independence Institute Research Director and Constitutional Law Professor Dave Kopel explains why Colorado Proposition 102 is, among many other terrible things, “The Red Queen’s justice from Alice in Wonderland: punishment first, trial afterwards.”

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Policing for Profit: Prove Your Innocent!

Posted by on Jun 18 2010 | Civil Rights, Criminal Law, Drug Policy, Government Largess, Justice, PPC, Property Rights

Our friends at the libertarian litigation firm the Institute for Justice (IJ) are trying to fight the insane world of civil asset forfeiture laws. Where the police can take your property without arrest, without prosecution, and without much of a reason. Where you must prove that you are innocent while fighting the presumption of guilt. Talk about turning the justice system on its head! Take a look at how ridiculous this crazy world is in this new IJ video:

In their massive Policing for Profit report, IJ graded each state’s asset forfeiture laws, and how they protect citizen’s property. Unfortunately, only 3 states in the entire country received a grade of “B” or better, with Colorado getting a hard-earned “C.” Our Justice Policy Initiative Director Mike Krause wrote briefly about the report and Colorado’s asset forfeiture laws in this article.

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How Many Laws Did You Break this Week?

Posted by on May 27 2010 | Government Largess, Justice, PPC

Those who claim to believe in “limited government” or “smaller government” or “Individual liberty” tend to focus on spending and government growth, entitlement programs and other forms of wealth transfer, and that’s all well and good.  But all too often, the coercive power of criminal law, and criminally enforceable regulatory law is overlooked.

In the 2004 Cato Institute book Go Directly to Jail: The Criminalization of Almost Everything, James V. DeLong writes, “It seems as if the Left and Right have entered into an agreement whereby each side gets to criminalize conduct it abhors so long as it lets the other side do the same.”

It has been a dysfunctional relationship to say the least.

As described in Go Directly to Jail, there are now thousands of federal crimes filling some 27,000 pages of the U.S. Code, plus an untold numbers of criminally enforceable regulations expressed in the tens of thousands of pages of the Code of Federal Regulations.

And it looks like things are only getting worse.

In early May, the conservative Heritage Foundation teamed up with the National Association of Criminal Defense Lawyers to publish Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.

The report finds that, “…the 109th Congress alone proposed 446 non-violent criminal offenses, 57 percent of which lacked an adequate guilty-mind requirement.”  Twenty-three of those inadequately protective offenses were enacted into law.

Other findings of egregious lawmaking activity by the 109th Congress includes:

  • Criminal legislation was riddled with vague, far-reaching and imprecise language;
  • Congress routinely delegated its authority to make criminal law to unaccountable regulators;
  • Over half of all new criminal offenses were not sent to the House or Senate Judiciary Committees for review.

These findings  should set off loud alarms with limited government conservatives, civil libertarians, and anyone else who cares about unjust government encroachment into American liberties, and the integrity of the American justice system.

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Second Amendment Supporters Respond to Bloomberg’s Anti-gun Ad Campaign

Posted by on Apr 26 2010 | Justice, Kopelization, Second Amendment, U.S. Constitution

According to the Daily News, New York City’s multi-millionaire mayor Michael Bloomberg’s gun-grabbing mayors group is dropping a cool quarter-million dollars for an ad campaign, including one in Colorado, to pimp Bloomberg-supported federal legislation to close the alleged “gun show loophole.”  But it is not all smooth sailing

Last Tuesday (April 20)  Denver defense attorney Jeralyn Merrit wrote that, “for the first time since 2002″ she had rejected putting an ad on her excellent criminal justice and political blog,  So what made her reject the ad?  According to Jeralyn:

It was an ad for gun control, that began in big letters, “Keep Guns Out of the Hands of Criminals” and urged people to support new laws on sales at gun shows. Given the focus of this blog, to protect the rights of those accused of crime and particularly, constitutional rights, I would have recoiled every time I logged on to my own blog.  So, even though it would have paid for TalkLeft’s hosting service for a full month (no small amount since we’re on our own server), I rejected it.

Way to stick to your guns, Jeralyn.

The Denver Post, on the other hand, had no problem taking an ad for Bloomberg’s bad gun bill.

Check out Independence Institute Research Director and Second Amendment scholar Dave Kopel in Saturday’s Denver Post in response to a full-page ad the Post ran urging Senator Mark Udall to get on-board the Bloomberg bandwagon.  Writes Kopel:

According to the ad, the Bloomberg bill would nationalize Colorado’s rule about background checks at gun shows. But in fact, only a small fraction of the Bloomberg bill addresses the issue of background checks. The rest of the bill has a much more aggressive agenda.

Check out the whole thing here.

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Modest Sentencing Reform Bill Long Overdue

Posted by on Apr 21 2010 | Drug Policy, Justice

On April 15, the Colorado House of Representatives overwhelmingly passed House Bill 1352, which nibbles at the edges of some of the more egregious aspects of the disastrous war on drugs by reforming some of Colorado’s controlled substance statutes.

This is a hugely important step for Colorado lawmakers in taking back their rightful prerogative to both write, and when necessary, re-write the state’s criminal code from the irrational drug law regime foisted on Coloradans by the federal government

In 1992, Colorado lawmakers enacted the Uniform Controlled Substances Act (USCA, Article 18 of Colorado’s criminal code).  The act was written to “complement” the federal Controlled Substances Act, and designed to bring state drug laws in to conformity with federal drug laws. The act, among many other things, created numerous new drug offenses in Colorado, and sentencing enhancements for those offenses.

In our Constitutional Republic, the authority and responsibility to write the state’s criminal law lies with the legislature.  In other words, the 1992 General Assembly willingly subjugated its prerogative to write Colorado’s criminal law to the dictates of federal drug war bureaucrats. What was the result?

Over the last several decades, the percentage of inmates whose most serious sentencing offense is a drug offense has quadrupled to around 20 percent of Colorado’s prison population. Drug offenders are by far the single largest category of new admissions to Colorado prisons at around 23 percent of annual admissions.

There are more drug offenders in Colorado prisons today than the entire prison population 25 years ago when the state’s inmate population was around 3,500.

In a January 1992 issue paper, published before the UCSA was enacted, Independence Institute Research Director Dave Kopel laid out the dangers in allowing unelected and unaccountable federal employees to decide Colorado law, asking:

Is an increment of presumed advantage in the drug war worth the price of warrantless searches, extreme and irrational punishments, pointless additional prison crowding, expansion of prosecutors’ power to take property from people never found guilty of a crime, and further abdication of state powers to federal bureaucrats?

The drug policy reform recommendations incorporated into House Bill 1352 are actually quite modest, having been exhaustively vetted by both the Drug Policy Task force of the Colorado Commission on Criminal and Juvenile Justice and by the voting members of the Commission itself, which includes representatives of the Attorney General’s Office, the Public Defender’s Office, the Department of Public Safety, prosecutors, chief’s of police, county sheriffs, drug treatment providers, legislators, and numerous other interested parties.

The Independence Institute has long advocated drug law reform.  In this 2005 issue paper, “Getting Smart on Crime: Time to Reform Colorado’s Drug Offense Sentencing Policies,” I recommend lowering both use and possession of illegal drugs from felony crimes to misdemeanors and the creation of sentencing grid for controlled substance offenses separate and distinct (and much less draconian) from the sentencing structure for violent and property crimes.

Here is what HB 1352 does with regard to drug possession offenses:

  • Creates a separate statute for the crime of possession of drugs.
  • Reduces the crime of drug use from a class 6 felony to a class 2 misdemeanor.
  • Redefines the quantity of drugs that is considered “simple possession” from 1 gram or less to 4 grams or less of a schedule I or II drug and 2 grams or less of methamphetamine.  “Simple possession” would be a class 6 felony.
  • Standardizes that possession for personal use of amounts greater than “simple possession” quantities is a class 4 felony.
  • Reduces possession of schedule III-V drugs (i.e. prescription drugs) to a misdemeanor.
  • Reduces the penalty for fraud and deceit in connection with controlled substances from a class 5 to a class 6 felony.
  • Requires cost savings from this bill to be evaluated annually by the division of criminal justice and reported to the legislature and that some of the cost savings will be allocated to expand and enhance substance abuse treatment.
  • Here is what HB 1352 does with regard to marijuana offenses:

  • Redefines the quantity of marijuana possession that determines crime classifications at various levels including possession of 2 ounces or less (petty offense), possession of more than 2 ounces but no more than 6 ounces (class 2 misdemeanor), possession of more than 6 ounces but less than 12 ounces (class 1 misdemeanor), and possession of more than 12 ounces (class 6 felony).
  • Redefines the quantity of marijuana concentrate possession that determines crime classification at various levels including possession of 3 ounces or less (class 1 misdemeanor) and possession of over 3 ounces (class 6 felony).
  • Creates a graduated penalty for marijuana cultivation including cultivation of 6 or fewer plants (class 1 misdemeanor), cultivation of between 7-29 plants (class 5 felony) and cultivation of 30 or more plants (class 4 felony).
  • The bill is sponsored by Colorado Springs Republican Representative Mark Waller and by Senators Pat Steadman (D-Denver) and Shawn Mitchell (R-Broomfield). HB 1352 now heads to the Senate, and is scheduled to be heard by the Senate Judiciary Committee on Monday, April 26.

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