Judges in Colo. will analyze revisions to the child neglect law | courts

Colorado Supreme Court announced on Monday will decide whether a recent change in state child neglect law requires more than speculation that a parent’s drug use will cause future adverse effects on the newborn.

At least three of the seven members of the court must agree to hear a case on appeal.

The judges also signaled that they may step in to review two recent decisions by trial judges. The first involves a recent U.S. Supreme Court decision that changes how prosecutors must prove prior convictions, and the second concerns the legality of municipal ordinances that punish identical crimes more harshly than state law does.

Drug use affecting newborns

Before 2020, a court could declare a child neglected if, among other things, the child tested positive at birth for unauthorized prescription controlled substances. That year, however, the parliamentarians adopted a new set of criteria. Now, a child is neglected if they are “born impaired by” exposure to alcohol or drugs and “their health or well-being is threatened” by substance use.

Interpreting that language for the first time in Augusta three-judge panel for the Court of Appeals ruled, 2-1, that the government must prove more than the potential for symptoms of drug exposure to manifest themselves one day.

“We recognize and do not intend to underestimate the devastating effects that can have on a child after being exposed to methamphetamine or other substances during pregnancy,” Judge Matthew D. Grove wrote for him and Judge Grant T. Sullivan. “Because the General Assembly has decided that mere exposure is no longer sufficient to justify adjudication of a child, we may not substitute our judgment for the legislature’s policy decision.”

Judge Terry Fox distanced herself from this reading, noting that it would allow parents to use harmful substances during pregnancy, “but if the child was not born prematurely, had no immediately detectable growth disorders, or had no withdrawal symptoms, the child he would not be a dependent or neglected child”.

“We certainly agree with the court’s conclusion,” Heather Thompson, who testified in favor of the 2020 legislation on behalf of the nonprofit Elephant Circle, told Colorado Politics after the committee’s decision. “We believe that was the intent of the statutory amendment.”

The government appealed to the state Supreme Court, asking it to review the board’s interpretation and related finding that the evidence was insufficient to find an El Paso County child neglected under the circumstances.

The judges will address these issues.

The case is People in the interest of BCB

New rule

Colorado’s “three strikes” law, known as the Regular Penalty Act, requires judges to impose three or four times the maximum sentence if a defendant is convicted and has multiple prior offenses. However, the prior convictions must arise “from separate and distinct criminal episodes.”

In June, however, the US Supreme Court issued a decision in Erlinger v. United Statessentencing juries must decide beyond a reasonable doubt whether a defendant has committed prior crimes on various occasions under ordinary federal criminal law.

As the ruling came down, a Mesa County jury recently convicted Andrew Gregg of two felonies and a misdemeanor. Prosecutors also argued that Gregg should be sentenced as a habitual offender because he had four previous convictions for robbery – but the priors were not part of the jury’s verdict.

After Erlinger and pending Gregg’s sentencing, the defense moved to dismiss the regular criminal charges because Gregg disputed whether three of his prior convictions were from “separate and distinct” episodes. The prosecution acknowledged that the Supreme Court’s decision meant such questions could no longer be decided by judges after the jury’s verdict. But it argued that a “surrogate jury” could determine whether Gregg qualified as a habitual offender.

In a Sept. 9 order, U.S. District Court Judge Matthew D. Barrett ruled there could be no further proceedings on the regular criminal charges. He invoked the constitutional prohibition on double jeopardy, arguing that case law prohibited him from empaneling another jury after the prosecution had already had a chance to prove its charges beyond a reasonable doubt.

“While I recognize that, at the time of trial, the prosecution did not know that it had to prove the defendant’s common criminal charges to the jury, I am still bound by the applicable law,” Barrett wrote.

The prosecution appealed directly to the state Supreme Court, arguing that the principle of double jeopardy did not apply in Gregg’s scenario.

The Supreme Court ordered Gregg and Barrett to respond to the prosecution’s petition. It also invited the criminal defense bar, the ACLU of Colorado, the board of district attorneys, the attorney general’s office and the state’s public defender to submit their views.

The case is The people against Gregg.

Municipal penalties

Finally, the Supreme Court showed interest in an appeal outside the municipal court.

Last year, the judges faced a scenario involving a pair of defendants in Rifle. Two people were issued summonses on municipal code theft charges. The maximum city jail time for the crime was 18 times longer than if the defendants had been charged under Colorado’s theft statute.

The defendants asked the Supreme Court to declare Rifle’s code unconstitutional to the extent that it punishes an identical crime more harshly. However, after the judges ordered Rifle to answer, the city council backtracked and changed its code, with rebuke. Consequently, the Supreme Court rejected the appeal.

A few months later, Aleah Michelle Camp was charged at Westminster Municipal Court with theft. Compared to the identical state offense, she would face a maximum municipal fine nine times greater and prison time 36 times greater than Colorado’s law required.

As with Rifle, Camp challenged the legality of Westminster’s ordinance. Similarly, the district attorney defended the city’s right to more severely punish theft under its inherent authority.

“Theft in Westminster happens in Westminster. Theft in Westminster affects Westminster retailers. When Westminster retailers are affected, they have trouble doing business in Westminster,” the city attorney’s office argued. “So it’s a local concern to address this criminal behavior.”

Judge Rebekah B. Watadah declined to rule the ordinance unconstitutional, holding that a locality’s sentencing scheme should not be consistent with the state’s.

The camp appealed to the Supreme Court, arguing that municipalities are undermining the legislature’s effort to impose statewide uniformity in criminal sentencing and to give officers unreviewed discretion as to where to charge defendants.

The Supreme Court ordered a response to Camp’s petition and invited the attorney general’s office, the criminal defense bar and the Colorado Municipal League to intervene.

The case is People v. Camp.