Colorado voters earlier this month approved a ballot measure that increases the amount of time an individual convicted of certain violent crimes must serve before being eligible for parole and removes parole eligibility for those with two previous violent crime convictions.

Proposition 128 passed with over 62% of the vote, which proponents said reflects Coloradans’ desire for increased public safety measures. 

Legal experts said the measure will benefit crime victims and defendants alike, as it will provide a more accurate estimation of how much time someone will actually spend in jail, a luxury that, they said, is rarely afforded under the current system.

Some argued however, that broader changes are needed to the state’s sentencing guidelines, some of which haven’t been reviewed in over three decades. 

‘Certainty in sentencing’

Advance Colorado, the organization behind Proposition 128, called it a “truth in sentencing” measure, while Boulder County District Attorney Michael Dougherty said it’s more about certainty in sentencing.

Certainty in sentencing ensures a clearer, more accurate understanding of how long a jail sentence will be, according to Dougherty. For example, just because an individual is sentenced to 20 years doesn’t mean that person will actually spend 20 years behind bars, as that time may be reduced due to several factors, such as reaching a plea bargain or being released on parole. 

“Whether you talk to prosecutors or the public defender’s office, I think both sides will say the same thing — it is difficult at the moment for a prosecutor to explain to a victim, ‘Okay, it’s a 10-year sentence, but we think this defendant may be eligible for parole and on the street in X number of years,'” Dougherty said. “It’s a difficult calculation that lacks in certainty.”

Essentially, he said, the closer an individual’s sentencing requirement before parole is to 100%, the more accurately you can predict the actual time the person will spend in jail. 

District Attorney John Kellner of the 18th Judicial District referred specifically to a case involving defendant Jonathan Bell, who was arrested in 2015 for robbing an Aurora payday loan business at gunpoint. Bell was sentenced to 16 years, but only served eight years. In 2022, Bell while on parole, was charged with committing another five burglaries, including one that ended with him shooting at the police in a Target parking lot. 

Kellner told Colorado Politics that under the current system, Bell served only 46% of his original sentence. 

“From my perspective, had Proposition 128 been in effect, he wouldn’t have been released,” Kellner said. “He would still be in prison at this point rather than out causing havoc and creating a dozen more victims and putting peoples’ lives at risk.”

Dougherty said he sees the proposition as an attempt to tackle two separate issues currently facing the criminal justice system in Colorado: certainty in sentencing and public safety worries. 

Dougherty served on the state’s Sentencing Reform Task Force within the now-defunct Commission on Criminal and Juvenile Justice, which sought to introduce more consistent sentencing guidelines for misdemeanors and jail sentences. He said everyone involved in the criminal justice system, from defense attorneys to prosecutors to defendants and victims, wants to see more certainty in sentencing. 

“Right now in Colorado, when someone receives a prison sentence, it’s really difficult, if not impossible, to predict how much time they’re actually going to serve in prison,” he said. “To me, that’s unfair to victims, offenders, and the community.”

Voters, legislators may be at odds

According to Dougherty, the state’s sentencing guidelines haven’t received a comprehensive review since 1985.

Tom Raynes, executive director of the Colorado District Attorneys Council, said he believes it’s possible that the state legislature may call for a review after Proposition 128 goes into effect, as it could possibly result in changes to how certain crimes are sentenced or disproportionately increase sentencing lengths.

“I would imagine that legislators would want to honor the will of the voters, but I do believe that there’s room for sentencing reform that does not jeopardize public safety, and the legislature may choose to engage in that effort just more globally and generally,” he said, adding that the proposition’s estimated cost to implement will be between $12 to $40 million.

That cost, Rayne said, could move lawmakers to make some adjustments.  

Ultimately, Raynes said, it will take some time before the effects of Proposition 128 can be assessed, especially the financial ones, which may take up to two decades to be felt in full.

Achieving an even higher level of certainty in sentencing is possible, Dougherty added, but not without substantial changes to the state’s sentencing statutes.

“I think there’s a way to build more certainty in without extending sentences, but it would require us to change the ranges we have under the law,” he said. 

To Kellner, the fact that the measure received 62% of the vote communicates a very clear message.

“People in the state of Colorado want to see tougher on crime outcomes than some of the soft-on-crime approaches we’ve seen from the legislature,” he said.

Kellner noted that in 2019, lawmakers enacted House Bill 1263, which lowered the penalty for possession of certain controlled substances, such as fentanyl and heroin, from a felony to a misdemeanor. Critics argued the bill, which was ultimately signed into law, would lead to even more fentanyl overdoses at a time when the state was already seeing some of the highest overdose rates in the nation.

Under pressure from several quarters — including the governor, lawmakers reversed course in 2020, passing House Bill 1236, which heightened felony charges for possession of 1 to 4 grams of any substance containing fentanyl. 

To Raynes, the dichotomy between recent legislation and what voters approved offers and “an interesting conundrum.”

“I think we’re pitting the legislature’s movement toward reform versus what the voters decided they wanted,” he said. “In some ways, I see (Proposition 128) as a provision where the voters said, ‘Hey, we might be concerned about moving too far too fast, so let’s put the brakes on overly-aggressive reform.'” 

Kellner, who called Proposition 128 “a change we need,” said he’s confident the longer sentences will be effective in reducing rates of violent crime and recidivism, while providing both victims and defendants some reassurance regarding sentencing. 

“For the first time in a very long time, you’re gonna have real honesty and truth in sentencing,” he said. “We’ll be able to treat people with respect and dignity and give them an honest answer about what the justice system is gonna be able to deliver for them in terms of the sentence.”