by Sam Rutherford

In a case of first impression, the Supreme Court of Colorado held that the parole board is not statutorily required to consider a juvenile sex offender’s “maturity,” though is permitted to do so, but is required to consider the offender’s “rehabilitation” when making release decisions where the offender was sentenced as an adult to a maximum term of life in prison.

The Court made this pronouncement on certification of a question of state law from the U.S. Court of Appeals for the Tenth Circuit in a case challenging the constitutionality of Colorado’s sentencing scheme for juvenile sex offenders sentenced as adults to indeterminate life sentences.

Background

In 2011, when Omar Ricardo Godinez was 15 years old, he and three accomplices kidnapped and raped two women within a week of each other. Godinez was charged, tried, and convicted as an adult of six offenses related to these crimes. He was sentenced under Colorado’s Sex Offender Lifetime Supervision Act (“SOLSA”), §§ 18-1.3-1001 to -1012, C.R.S. (2023). SOLSA requires courts to sentence convicted sex offenders to an indeterminate term of at least the minimum of the statutorily prescribed presumptive range for the level of offense committed and a maximum of the sex offender’s natural life. Godinez received an aggregate sentence of 32 years to life in prison.

            Prior to sentencing, Godinez argued that sentencing him as an adult under the SOLSA would violate the Eight Amendment’s prohibition against cruel and unusual punishment because the Act does not require the parole board to take into consideration the demonstrated “maturity and rehabilitation” of juvenile offenders sentenced as adults for non-homicide offenses when making parole decisions, as required by the U.S. Supreme Court’s decision in Graham v. Florida, 560 U.S. 48 (2010). The trial court rejected this argument, reasoning that the Graham factors are subsumed within the SOLSA’s provisions that guide parole determinations.

            Godinez timely appealed, and the state Court of Appeals affirmed, concluding that the long-term aggregate sentence he received is not the functional equivalent of a life without parole sentence and that Graham therefore does not apply. The Colorado Supreme Court denied review, and the U.S. District Court for the District of Colorado denied Godinez’s subsequent petition for writ of habeas corpus.

            Godinez timely appealed to the U.S. Court of Appeals for the TenthCircuit. That court had previously rejected the state appellate court’s determination that aggregate sentences under the SOLSA do not implicate Graham when imposed on juvenile sex offenders sentenced as adults. Under Tenth Circuit precedent, Colorado “may not take a single offense and slice it into multiple sub offenses in order to avoid Graham’s rule that juvenile offenders who do not commit homicide may not be sentenced to life without the possibility of parole.” Budder v. Addison, 851 F.3d 1047 (10th Cir. 2017).

            However, the question remained whether Godinez’s sentence actually violates the Eight Amendment. Resolution of this issue turns on the proper interpretation of the SOLSA, so the Tenth Circuit certified the following question of state law to the Colorado Supreme Court: “whether SOLSA requires, permits, or prohibits parole boards from considering maturity and rehabilitation.” The Colorado Supreme Court accepted review of the certified question as a matter of first impression under state law.

Analysis

The Colorado Supreme Court began its review by noting that the Eighth Amendment requires states to give juvenile prisoners like Godinez who were sentenced as adults to a maximum term of life imprisonment for non-homicide offenses “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham. Whether the SOLSA satisfies this constitutional requirement is a matter of statutory interpretation. The SOLSA, like all statutory provisions, must be interpreted based on its plain and ordinary meaning, the primary purpose being to effectuate the Legislature’s intent in enacting the provision. McCoy v. People, 442 P.3d 379 (Colo. 2019).

            The SOLSA states that the parole board “shall” consider the following factors when making release decisions: “[1] whether the sex offender has successfully progressed in treatment and [2] would not pose an undue threat to the community if released under appropriate treatment and monitoring requirements and [3] whether there is a strong and reasonable probability that the person will not thereafter violate the law.” § 18-1.3-1006(1)(a). Godinez argued that the use of the word “shall” in the statute prevents the parole board from considering any factors other than the three mentioned therein, and thus, it violates the Eighth Amendment as per Graham.

The Court rejected this interpretation. The Court reasoned that use of the word “shall” does require the parole board to consider the three statutory factors, but that does not bar the parole board from considering additional factors. The SOLSA, “at the very least, permits a parole board to consider maturity and rehabilitation when determining whether to parole a sex offender,” according to the Court.

            The question remained, however, whether the SOLSA mandates consideration of a juvenile prisoner’s maturity and rehabilitation during parole hearings. The State argued that consideration of a juvenile’s maturity and rehabilitation are necessarily part of the considerations mandated by the three-factor test set forth in the SOLSA regarding treatment progress, community safety, and likelihood of law-abiding behavior. Assessing whether this is so first required the Court to define the words “maturity” and “rehabilitation.”

Relying on dictionary definitions and case law from lower courts, the Court determined that “maturity involves, at the very least, the process of developing a stronger sense of responsibility, better judgment, more self-control, and the ability to resist negative outside influences.” Again, turning to the dictionary definition, the Court determined that “rehabilitation” refers to the “process of seeking to improve a criminal’s character and outlook so that he or she can function in society without committing other crimes.”

            The Court concluded that a prisoner’s satisfactory progress through sex-offender treatment to the point where the parole board determines he or she is eligible for release does not, in and of itself, encompass the maturity considerations mandated by the Eighth Amendment under Graham. “Although, to be sure, some of the traits of a person who successfully completes a treatment program or who poses a low risk of reoffending when re-entering society may correlate, to a degree, with the characteristics of a mature person, sex offender treatment programs and sex offender risk assessments are not designed to measure developmental maturity,” the Court stated. This is so because the concept of maturity “is broader than merely recognizing and addressing problematic behavior.” Thus, the Court ruled that the SOLSA’s three-factor test does not require “parole boards to consider demonstrated maturity.”

            The three-factor test required by the SOLSA for release decisions does, however, encompass considerations of a juvenile’s rehabilitation as required by Graham. “[S]ex offender treatment programs are rehabilitative by design because the purpose of requiring sex offenders to undergo treatment is precisely to rehabilitate them so that they can re-enter society with a low risk of re-offending.” Thus, the Court ruled that the plain language of the SOLSA mandates parole board consideration of a juvenile’s rehabilitation in connection with release decisions as required by Graham.

            The Court rejected the State’s argument that Colorado’s general parole provisions, which are arguably incorporated into the SOLSA and require parole boards to consider the “totality of the circumstances” when making release decisions, also encompass the maturity and rehabilitation considerations mandated by Graham. Because this standard affords parole boards broad discretion to “consider any and all of the factors that it deems pertinent to the specific case,” it cannot be considered as mandating consideration of a juvenile’s maturity or rehabilitation, according to the Court.

Conclusion

Accordingly, the Court answered the Tenth Circuit’s certified question of state law “by concluding that SOLSA permits consideration of maturity and requires consideration of rehabilitation.” See: Godinez v. Williams, 544 P.3d 1233 (Colo. 2024) (en banc).

Writer’s note: This case was returned to the Tenth Circuit, which will determine whether Godinez is entitled to a writ of habeas corpus because his sentence violates the Eighth Amendment as interpreted in Graham. CLN will monitor the case and report any future developments.

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