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Colorado Sex Offender Probation – A Judge May Reject Unfair Probation Terms

By H. Michael Steinberg Colorado Sex Crimes Criminal Defense Lawyer – Attorney

Colorado Sex Offender Probation – A Judge May Reject Unfair Probation Terms -While other articles i have written address the right of Colorado sex offenders to be with their own children – this article addresses the issue of the rights of convicted sex offenders to see their grandchildren and the right of a Colorado Trial Judge to set the conditions of ALL types of probation including sex offender probation.

A recent unpublished Colorado appellate decision analyzes the right of a Colorado convicted sex offender to be with their grandchildren. The case analysis demonstrates that there ARE limits on the rights of a probation department and/or the Colorado sex offender treatment provider to set probation conditons under Colorado’s SOMB (Sex Offender Management Board) Standards.

Denying A Colorado Convicted Sex Offender The Right To Be With Her Grandchildren

In the recent Colorado decision mentioned above, the Defendant objected to any condition of probation that would prohibit her from contact with children because it would result in no contact with her two grandchildren, (ages 3 yrs and 3 months) who lived next door to her.

On the issue of removing the no contact order with her children (and therefore the grandchildren), the lower court held that “it would not be a danger to public safety to permit (the Defendant) to have contact with her . . . grandchildren” even though such a requirement was mandated under Colorado’s Sex Offender Intensive Supervision Probation (SOMB – SOISP) guidelines.

Understanding this issue, the Trial Judge fashioned an Order to read as follows:

“You shall not have contact with any children under the age of 18, except for family members and as approved by the SOMB treatment provider.”

In light of this Court Order, the sex offender treatment providers consulted in this case ALL refused to treat this Defendant because it was in violation of the SOMB guidelines – even though the Judge permitted her to have contact with her children and grandchildren.

The Court reasoned that the relevant part of the SOMB standards that permitted the treatment providers to “veto contact” with the Defendant’s grandchildren was invalid because that condition of probation not “was (under the specific facts of this case) not reasonably related to the purposes of rehabilitation and deterring future criminality.

Why The Ruling? The Reasoning…

The lower Court found that the Defendant was low risk for sexual recidivism., her victims were adult males and there was no indication that she could not be safely around children, particularly within her family. Furthermore, the Court reasoned that having contact with her grandchildren might help he get through probation and have a better result in treatment.

It is the law in Colorado – whether the sentence to probation is Sex Offender Intensive Supervision Probation or just standard probation – that ANY condition of probation must reasonably be linked to the purposes of advancing a defendant’s rehabilitation or protecting the public, the enforcement of such a condition.

The Constitutional Right To Parent Your Own Children

In another article I addressed the 2014, the Tenth Circuit U.S. Court of Appeals case of United States v. Burns (No 13-5045). This important case held that restricting contact with the offender’s own children is a violation of the constitutional right of parenting.

The Tenth Circuit U.S. Court of Appeals specifically held that an offender’s access to his/her own children may not be restricted as a universal condition of supervision.

A Colorado sex offender conviction alone does NOT meet the criteria for compelling evidence to restrain a parent’s constitutional right to parental association.

Aftter the case was decided, SOMB guidelines were amended to require that findings identified as “risk factors” are addressed at the time of sentencing by the Judge concerning a convicted offender’s contact with his/her own children.

The Presumption Of Risk is Reversed – Now Benefits The Parents

The previous approach – Pre- Burns – was premised on the presumption that offenders should be barred from seeing their own children – even when they had not been victimized. The offender had to prove he was safe. The system now presumes that sex offenders should parent their children unless a judge or parole board find compelling evidence the children are in danger.

A well known and very well respected expert lawyer in this area, Laurie Kepros, sums up this issue as follows:

“The more we isolate and stigmatize people and remove them from their structures and their stability, the more we increase risk,” said Kepros, who stressed that judges still can bar offenders from their children in extreme cases, such as incest.

In the 2004 Colorado Court Of Appeals, People v. Valenzuela, the trial court made the finding that probation conditions prohibiting defendant’s contact with his children were “utterly senseless, would provide the community with no meaningfully increased protection and would · decrease · the chances that · Defendant will be successful on probation.”

The CSOMB Standards and Guidelines should be read closely in light of these recent Colorado cases – here is a link to the standards – particularly § 5.00 and the guidelines that follow.

The Relevant Background

In Colorado, when a sex offender is sentenced to probation, he is sentenced to SOISP.

Section 18-1.3-1007, C.R.S. – a very intensive form of probation for sex offenders. Part of the sentence requires that the treatment component be provided by an approved sex offender treatment program.

The licensed providers who make this list agree that their treatment adhere to CSOMB Standards and Guidelines.

But the CSOMB standards are NOT the final word. Colorado’s Judges have always had wide discretion to impose conditions of probation – that authority now applies to Colorado Sex Offender Intensive Supervision Probation cases – at least where contact with the offender’s children are concerned.

Summary And Conclusion – Colorado Sex Offender Probation – A Judge May Reject Unfair Probation Terms

Colorado’s SOMB committee is studying how to balance the Burns case with the other SOMB standards. What is at issue is how to reconcile the SOMB standards and the constitutional rights of parents who have been convicted of Colorado sexual offenses.

The language “except for the immediate family members…” now includes this a footnote:

“Immediate family member is defined as siblings, grandchildren, persons to whom the offender stands in loco parentis, and persons living in the offender’s household and related by blood or marriage.”

Colorado’s SOMB Standards and Guidelines restrict sex offenders’ contact with anyone which under the age of 18. Of course this includes their own children. The SOMB now provides for a “variance” that the therapist or the sex offender can apply for and receive, which waives this restriction from treatment.

Ultimately the right to appeal the refusal of probation officer and or the treatment provider to allow for contact with the children or grandchildren of Colorado sex offenders lies with the Judge who always retains jurisdiction to control the conditions of probation – even sex offender intensive supervision probation (SOISP).

Colorado Sex Offender Probation – A Judge May Reject Unfair Probation Terms

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

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Summary

Article Name

Colorado Sex Offender Probation - A Judge May Reject Unfair Probation Terms

Description

While other articles i have written address the right of Colorado sex offenders to be with their own children - this article addresses the issue of the rights of convicted sex offenders to see their grandchildren and the right of a Colorado Trial Judge to set the conditions of ALL types of probation including sex offender probation

Author

H. Michael Steinberg