NOTE: The governor signed this measure on 6/10/2016. SENATE BILL 16-180 BY SENATOR(S) Woods and Jahn, Aguilar, Guzman, Kerr, Lundberg, Marble, Martinez Humenik, Merrifield, Newell, Scheffel, Steadman, Todd, Ulibarri, Heath, Kefalas; also REPRESENTATIVE(S) Kagan and Ransom, Priola, Danielson, Dore, Garnett, Klingenschmitt, McCann, Moreno, Rosenthal, Wist, Becker K., Duran, Kraft-Tharp, Lee, Primavera, Ryden, Arndt, Court, Melton, Salazar, Tyler, Williams, Winter. Concerning a specialized program within the department of corrections for certain offenders who were convicted as adults for offenses they committed as juveniles, and, in connection therewith, making an appropriation. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly finds and declares that: (a) The United States supreme court has held in several recent decisions regarding the criminal sentencing of juveniles that children are constitutionally different than adults for purposes of sentencing and should be given a meaningful opportunity for release based on demonstrated maturity and rehabilitation; (b) Colorado recognizes that children have not yet reached developmental maturity before the age of eighteen years and therefore have a heightened capacity to change behavior and a greater potential for rehabilitation; (c) Colorado has many offenders currently serving sentences in the department of corrections who committed crimes when they were less than eighteen years old and who no longer present a threat to public safety; and (d) Colorado is committed to research-based best practices in the development and implementation of correctional policies and practices. (2) Now, therefore, Colorado desires to implement a system that allows any offender who committed a serious crime as a juvenile, was treated as an adult by the criminal justice system, and has served more than twenty or twenty-five calendar years of a sentence to the department of corrections, during which he or she has exhibited growth and rehabilitation, the opportunity to further demonstrate rehabilitation and earn early release in a specialized program in a less secure setting without compromising public safety. SECTION 2. In Colorado Revised Statutes, add article 34 to title 17 as follows: ARTICLE 34 Specialized Program For Juveniles Convicted As Adults 17-34-101. Juveniles who are convicted as adults in district court - eligibility for specialized program placement - petitions. (1) (a) Notwithstanding any other provision of law, an offender serving a sentence in the department for a felony offense as a result of the filing of criminal charges by an information or indictment pursuant to section 19-2-517, C.R.S., or the transfer of proceedings to the district court pursuant to section 19-2-518, C.R.S., or pursuant to either of these sections as they existed prior to their repeal and reenactment, with amendments, by House Bill 96-1005, and who remains in the custody of the department for that felony offense may petition for placement in the specialized program described in section 17-34-102, referred to within this section as the "specialized program" as follows: (I) If the felony of which the person was convicted was not murder in the first degree, as described in section 18-3-102, C.R.S., then the offender may petition for placement in the specialized program after serving twenty years of his or her sentence if he or she: (A) Has not been released on parole; (B) Has not been convicted of unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S.; (C) Is not in a treatment program within the department for a serious mental illness; (D) Has obtained, at a minimum, a high school diploma or has successfully passed a high school equivalency examination, as defined in section 22-33-102 (8.5), C.R.S.; (E) Has participated in programs offered to him or her by the department and demonstrated responsibility and commitment in those programs; (F) Has demonstrated positive growth and change through increasing developmental maturity and quantifiable good behavior during the course of his or her incarceration; and (G) Has accepted responsibility for the criminal behavior underlying the offense for which he or she was convicted. (II) If the felony of which the person was convicted was murder in the first degree, as described in section 18-3-102 (1) (b) or (1) (d), C.R.S., then the offender may petition for placement in the specialized program after serving twenty years of his or her sentence if he or she satisfies the criteria described in sub-subparagraphs (A), (B), (C), (D), (E), (F), and (G) of subparagraph (I) of this paragraph (a). (III) If the felony of which the person was convicted was murder in the first degree, as described in section 18-3-102, C.R.S., but was not murder in the first degree, as described in section 18-3-102 (1) (b) or (1) (d), C.R.S., then the offender may petition for placement in the specialized program after serving twenty-five years of his or her sentence if he or she satisfies the criteria described in sub-subparagraphs (A), (B), (C), (D), (E), (F), and (G) of subparagraph (I) of this paragraph (a). (b) An offender who is described in paragraph (a) of this subsection (1) may apply for placement in the specialized program notwithstanding his or her sentence or parole eligibility date. (2) Upon receiving a petition from an offender described in subsection (1) of this section, the executive director or his or her designee shall review the petition and determine whether to place the offender in the specialized program. In making this determination, the executive director or his or her designee shall consider the following criteria: (a) The nature of the offense and the circumstances surrounding the offense, including the extent of the offender's participation in the criminal conduct; (b) The age and maturity of the offender at the time of the offense; (c) The behavior of the offender in any institution for the duration of his or her sentence, including consideration of any violations of the inmate code of conduct and dates of the violations or, in the alternative, the lack of any such violations; (d) The assessed risk and needs of the offender; (e) The impact of the offense on any victim and any victim's immediate family member; and (f) Any other factor determined to be relevant by the executive director or his or her designee in assessing and making a determination regarding the offender's demonstrated rehabilitation. (3) The department may make restorative justice practices, as defined in section 18-1-901 (3) (o.5), C.R.S., available to any victim of any offender who petitions for placement in the specialized program, as may be appropriate, but only if requested by the victim and the victim has registered with the department of corrections requesting notice of victims' rights pursuant to the provisions of part 3 of article 4.1 of title 24, C.R.S. (4) (a) If after review of an offender's petition, the executive director or his or her designee determines that the offender is an appropriate candidate for placement in the specialized program, the department shall place the offender in the specialized program as soon as practicable. (b) Any victim or victim's immediate family member, as defined in section 24-4.1-302 (5) and (6), C.R.S., has the right to be informed of the placement of an offender pursuant to sections 24-4.1-302.5 (1) (q) and 24-4.1-303 (14), C.R.S. (5) If the executive director or his or her designee denies an offender's petition for placement in the specialized program based on a determination that the offender is inappropriate for such placement after consideration of the criteria set forth in subsection (2) of this section, the offender may petition the executive director or his or her designee for placement in the specialized program not sooner than three years after the issuance of the denial. (6) The department shall develop policies and procedures for the preparation, submission, and review of petitions for placement of offenders in the specialized program, as described in this section. 17-34-102. Specialized program for juveniles convicted as adults - report - repeal. (1) The department shall develop and implement a specialized program for offenders who have been sentenced to an adult prison for a felony offense committed while the offender was less than eighteen years of age as a result of the filing of criminal charges by an information or indictment pursuant to section 19-2-517, C.R.S., or the transfer of proceedings to the district court pursuant to section 19-2-518, C.R.S., or pursuant to either of these sections as they existed prior to their repeal and reenactment, with amendments, by House Bill 96-1005, and who are determined to be appropriate for placement in the specialized program. The department shall implement the specialized program within or in conjunction with a facility operated by, or under contract with, the department. (2) The specialized program must include components that allow an offender to experience placement with more independence in daily life, with additional work-related responsibilities and other program components that will assist and support the offender's successful reintegration into the community of offenders who have never lived independently or functioned in the community as an adult. The specialized program must also include best and promising practices in independent living skills development, reentry services for long-term offenders, and intensive supervision and monitoring. (3) The department shall not allow any participating offender to complete the specialized program in less than three years. (4) The department may make restorative justice practices, as defined in section 18-1-901 (3) (o.5), C.R.S., available to any victim of any offender who petitions for placement in the specialized program, as may be appropriate, but only if requested by the victim and the victim has registered with the department of corrections requesting notice of victims' rights pursuant to the provisions of part 3 of article 4.1 of title 24, C.R.S. (5) (a) The department shall complete the design of the specialized program on or before August 10, 2017. The department shall commence placement of eligible offenders in the specialized program on or before November 10, 2017. If the specialized program is not operational by this date, the executive director shall report to the general assembly on or before November 30, 2017, the reasons for the delay and the date that the specialized program will be operational. (b) This subsection (5) is repealed, effective December 1, 2017. (6) (a) The department shall include in the specialized program rules of conduct for program participants and a policy whereby program participants who fail to comply with the rules of conduct are terminated from participation in the specialized program and returned to an appropriate prison placement. (b) An offender who is terminated from the specialized program may not re-petition for placement in the specialized program sooner than three years from the date of such termination. (7) Notwithstanding any provision of law, an offender who successfully completes the specialized program is eligible to apply for early parole pursuant to the provisions of section 17-22.5-403 (4.5) or 17-22.5-403.7. (8) (a) Except as described in paragraph (b) of this subsection (8), if an offender has served at least twenty-five calendar years of his or her sentence and successfully completed the specialized program, unless rebutted by relevant evidence, it is presumed that: (I) The offender has met the factual burden of presenting extraordinary mitigating circumstances; and (II) The offender's release to early parole is compatible with the safety and welfare of society. (b) If an offender who committed murder in the first degree, as described in section 18-3-102 (1) (a), (1) (c), (1) (e), or (1) (f), C.R.S., has served thirty years of his or her sentence and successfully completed the program, unless rebutted by relevant evidence, the presumptions described in subparagraphs (I) and (II) of paragraph (a) of this subsection (8) apply. (9) On and after January 1, 2018, during its annual presentation before the joint judiciary committee of the general assembly, or any successor joint committee, pursuant to section 2-7-203, C.R.S., the department shall include a status report regarding the progress and outcomes of the specialized program developed and implemented by the department pursuant to this section during the preceding year. The report, at a minimum, shall include: (a) A description of the specialized program, including the evidence-based and promising practices that are included in the specialized program; (b) The policies and procedures developed by the department to determine which eligible offenders may be placed in the specialized program; (c) The policies and procedures developed by the department to address the conduct of participants in the specialized program; (d) The location of the program and the number of beds available for specialized program participants; (e) The number of offenders selected to participate in the specialized program; the number of offenders who were denied placement in the specialized program, including the reasons for such denials; and the number of offenders who were removed from the specialized program and the reasons for their removal; (f) A summary concerning the staffing of the specialized program; (g) Information concerning the behavior patterns of the offenders in the specialized program; (h) The number of offenders who successfully completed the specialized program; (i) The number of specialized program participants who have been referred to the parole board for early parole; and (j) The number of specialized program participants who were granted early parole by the governor. SECTION 3. In Colorado Revised Statutes, 17-22.5-403, add (4.5) as follows: 17-22.5-403. Parole eligibility. (4.5) (a) After considering any relevant evidence presented by any person or agency and considering the presumptions set forth in section 17-34-102 (8), the governor may grant early parole to an offender to whom subsection (1) or (2.5) of this section applies when the offender successfully completes the specialized program described in section 17-34-102 if, in the governor's opinion, extraordinary mitigating circumstances exist and the offender's release from institutional custody is compatible with the safety and welfare of society. (b) When an offender applies for early parole pursuant to paragraph (a) of this subsection (4.5) after having successfully completed the specialized program described in section 17-34-102, the offender shall make his or her application to the governor's office with notice and a copy of the application sent to the state board of parole created in section 17-2-201. The state board of parole shall review the offender's application and all supporting documents and schedule a hearing if the board considers making a recommendation for early parole, at which hearing any victim must have the opportunity to be heard, pursuant to section 24-4.1-302.5 (1) (j), C.R.S. Not later than ninety days after receipt of a copy of an offender's application for early parole, the state board of parole, after considering the presumptions set forth in section 17-34-102 (8), shall make a recommendation to the governor concerning whether early parole should be granted to the offender. (c) The department, in consultation with the state board of parole, shall develop any necessary policies and procedures to implement this subsection (4.5), including procedures for providing notice to any victim, as required by sections 24-4.1-302.5 (1) (j) and 24-4.1-303 (14), C.R.S., and to the district attorney's office that prosecuted the crime for which the offender was sentenced. SECTION 4. In Colorado Revised Statutes, 17-22.5-403.7, amend (2); and add (6) as follows: 17-22.5-403.7. Parole eligibility - class 1 felony - juvenile offender convicted as adult. (2) After considering any relevant evidence presented by any person or agency and considering the presumptions set forth in section 17-34-102 (8), the governor may grant parole to an inmate prior to the inmate's parole eligibility date if, in the governor's opinion, extraordinary mitigating circumstances exist and the inmate's release from institutional custody is compatible with the safety and welfare of society. (6) (a) When an offender applies for early parole pursuant to this section after having successfully completed the specialized program described in section 17-34-102, the offender shall make his or her application to the governor's office with notice and a copy of the application sent to the state board of parole created in section 17-2-201. The state board of parole shall review the offender's application and all supporting documents and schedule a hearing if the board considers making a recommendation for early parole, at which hearing any victim must have the opportunity to be heard, pursuant to section 24-4.1-302.5 (1) (j), C.R.S. Not later than ninety days after receipt of a copy of an offender's application for early parole, the state board of parole, after considering the presumptions set forth in section 17-34-102 (8), shall make a recommendation to the governor concerning whether early parole should be granted to the offender. (b) The department, in consultation with the state board of parole, shall develop any necessary policies and procedures to implement this subsection (6), including procedures for providing notice to any victim, as required by sections 24-4.1-302.5 (1) (j) and 24-4.1-303 (14), C.R.S., and to the district attorney's office that prosecuted the crime for which the offender was sentenced. SECTION 5. In Colorado Revised Statutes, 24-4.1-302.5, amend (1) (j) as follows: 24-4.1-302.5. Rights afforded to victims. (1) In order to preserve and protect a victim's rights to justice and due process, each victim of a crime shall have the following rights: (j) The right to be informed, upon written request from the victim, of any proceeding at which any postconviction release from confinement in a secure state correctional facility is being considered for any person convicted of a crime against the victim and the right to be heard at any such proceeding or to provide written information thereto. For purposes of this subsection (1), "proceeding" means reconsideration of sentence, a parole hearing, or commutation of sentence, or consideration for placement in the specialized program developed by the department of corrections pursuant to section 17-34-102, C.R.S. SECTION 6. Appropriation. For the 2016-17 state fiscal year, $95,504 is appropriated to the department of corrections. This appropriation is from the general fund and is based on an assumption that the department will require an additional 0.8 FTE. To implement this act, the department may use this appropriation as follows: Inspector General Subprogram Operating Expenses $25 Superintendents Subprogram Personal Services $44,071 (0.8 FTE) Operating Expenses $5,450 Start-up costs $45,328 Communications Subprogram Operating Expenses $405 Training Subprogram Operating Expenses $25 Information Systems Subprogram Operating Expenses $200 SECTION 7. Act subject to petition - effective date. This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2016, if adjournment sine die is on May 11, 2016); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2016 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor. ____________________________ ____________________________ Bill L. Cadman Dickey Lee Hullinghorst PRESIDENT OF SPEAKER OF THE HOUSE THE SENATE OF REPRESENTATIVES ____________________________ ____________________________ Effie Ameen Marilyn Eddins SECRETARY OF CHIEF CLERK OF THE HOUSE THE SENATE OF REPRESENTATIVES APPROVED________________________________________ _________________________________________ John W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO