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Colorado Domestic Violence Fast Track Programs

First Some Definitions Bear Repeating:

Domestic violence, as defined in C.R.S. § 18-6-800.3(1), is “an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. ”“Domestic violence” also includes any other crime against a person or against property or any municipal ordinance violation against a person OR against property, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the
actor is or has been involved in an intimate relationship.”

C.R.S. § 18-6-800.3(2) defines an“intimate relationship” as a “relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.”

Colorado statutes also call for a mandatory restraining order against any person charged with a domestic violence violation. C.R.S. § 18-1-1001(1) requires that the order “remain in effect from the time that the person is advised of his or her rights at arraignment or the person’s first appearance before the court and informed of such order until final disposition of the action.” The statute goes on to mandate that defendants released on bail in cases involving domestic
violence are provided with the terms of the restraining order on the record. The court is required to acknowledge the restraining order as a condition of any bond for the release of the defendant.

Under state law, domestic violence is not a statutory crime; it is a sentencing enhancement.

The preferred sentence is participation and completion of an approved intervention program. Under C.R.S. § 18-6-801.1, all domestic violence offenders are subjected to an intake evaluation conducted by a certified treatment provider. The Defendant is sent back to court for an alternative disposition if the evaluator deems that sentencing to a treatment program would be inappropriate.

Mutual arrests.

C.R.S. § 18-6-803.6(2) states:

If a peace officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine if a crime has been committed by one or more persons. In determining whether a crime has been committed by one or more persons, the officer shall consider: (1) any prior complaints of domestic violence; (2) the relative severity of the injuries inflicted on each person; (3) the likelihood of future injury to each person; and (4) the possibility that one of the persons acted in self defense.

Fast Track Prosecution

Fast track prosecution of domestic violence cases occurs in several districts in the state of Colorado and continues to expand. Fast track is not unusual and it is used in other contexts, most commonly drug courts.

In traditional first appearance hearings, defendants appear before a magistrate or judge at which time they are informed of specific charges and their constitutional rights, and bail or other conditions of pretrial release are determined. In minor cases, the court may accept a plea at the first appearance. If there is no plea, the case will then proceed to preliminary hearing. Felony arraignment and trial may follow.

Fast track is applied to first-time misdemeanor domestic violence cases only. Under this program, the emphasis in the first appearance hearing is on the plea. Since local judges have not implemented a “no bond” policy, most defendants are not in custody at the first appearance.

Typically, the defendants have been released under no contact orders. Under state law, the defendants may plead guilty without benefit of counsel where the District Attorney stipulates to the court that there is no intent to seek a jail sentence. Without such a stipulation, there is a constitutional right to an attorney in cases where a jail sentence may result.

According to C.R.S. § 16-5-501, the prosecuting attorney may state in writing whether or not he will seek incarceration as part of the penalty upon conviction of an offense for which the defendant has been charged.

Notice to Appear

Under fast track, when law enforcement officers make an arrest at the incident scene, they present the victim with a ‘Notice to Appear.’ Although the ‘Notice to Appear’ has no potential legal ramifications, it clearly states: You are hereby notified to appear. Failure to appear may result in disposition of the case without your presence or may result in prolonged court proceedings and personal service of process upon you.

The ‘Notice to Appear’ instructs victims to appear at the District Attorney’s Office at a designated time on the first business day following arrest to meet with two advocates: a court advocate employed by the District Attorney’s Victim Advocate Program meets with them.

The notice also includes advocate contact information, should the victim prefer to contact the advocate by telephone rather than in person.

Defendants appear in front of the magistrate where they are advised of their rights. The domestic violence prosecutor meets with defendants after they have been advised by the magistrate. After the magistrate has advised the defendant and explained the role of the District Attorney as a prosecutor for the state rather than defense counsel, the magistrate orders the case to be reset, usually the same day and sets up a meeting with the prosecutor.

While the victim advocates speak to the so called victims, the domestic violence prosecutor meets with defendants in the courtroom, informs them of their right to counsel, reviews the incident reports with them, and offers a plea. Defendants then appear in front of the magistrate.

In general, defendants do not have lawyers present during plea negotiations, and most defendants mistakenly waive their right to counsel to expedite their case. Defendants who accept the plea are routinely sentenced to the domestic violence intervention program and one year probation. Convictions appear on their criminal history and they lose their rights under Federal Law to bear arms.

Controversy

The implementation of fast track has several disadvantages, including the following:

1. The process raises serious constitutional issues.

2. The system tests the integrity of the entire criminal justice system.

3. Fast track disadvantages those who cannot afford counsel, and quite possibly,
women defendants.

4. Fast track prosecution does not allow for alternative sentencing.

Constitutionality Issues.

Defense attorneys have raised concerns regarding the constitutionality of fast track. Of key concern is the lack of counsel during plea negotiations—state law provides that indigents are not entitled to counsel at the state’s expense where incarceration will not be sought. Even in those cases where jail is sought, indigent defendants are extremely unlikely to secure the services of a public defender.

Defense attorneys also point out that defendants may feel coerced into pleading guilty in the belief that it will eliminate future court hearings and the need to take time from work to attend court. Under C.R.S. § 16-5-501, indigent defendants are not entitled to a public defender “if the prosecuting attorney does not seek incarceration as part of such penalty.”

According to the public defender’s office, high caseloads and insufficient funding logistically result in the denial of legal representation to defendants accused of misdemeanor charges. Statewide, the public defender’s office prioritizes representation for defendants charged with felony-level crimes. Consequently, virtually no fast track indigent defendants will obtain the services of a public defender.

Constitutional problems can also arise when defendants are placed on probation and subject to jail time if they violate the terms and conditions of probation.

System Integrity.

Fast track prosecution depends on the integrity of the entire criminal justice system. Law enforcement often makes arrests without adequate documentation; the prosecutor must decide which cases to prosecute based on the evidence, and the magistrate must ensure that defendants are notified of their rights and understand the nature of the charges.

Since fast track increases the number of guilty pleas, and hence, the District Attorney’s
conviction rates, there may be an unstated incentive to prosecute borderline cases. There is evidence that police are making too many mutual arrests and arrests of self defending
victims.

By law, officers are required to conduct a primary aggressor analysis. Yet mutual arrests occur and both the victim and the abuser enter the fast track system where the prosecutor must determine the merit of charges against both parties. Fast track makes it easier to convict both parties, especially since the District Attorney’s Office does not have an explicit policy on handling mutual arrest cases.

System Bias.

Fast track disadvantages those who cannot afford counsel and may also disadvantage women defendants. In the criminal justice system, research has noted the strong relationship between social class and the likelihood of arrest and conviction. In fast track, the social class issue becomes even more troublesome as so few defendants have resources to hire an attorney and, being first time offenders, do not have an understanding of the criminal justice system.

Defendants who can obtain an attorney and postpone court proceedings are advantaged not only by counsel, but also by the fact that the victim is likely to recant over time. Such cases are less likely to result in prosecution and conviction. In addition to social class biases, some local observers believe that fast track disproportionately disadvantages female defendants, some of whom may be self-defending victims.

The trauma of jail, combined with the strong desire to quickly close the case to be home with children, may impact women differently than men. The prosecutor’s promise prior to sentencing that no jail will be imposed as part of the agreement is not binding at probation revocation proceedings. Furthermore, defendants are protected in the context of potential revocation because they are again formally advised of their rights to counsel.

Records indicate that many of these convicted women were self-defending victims of domestic violence. furthermore fast track prosecution may be inappropriately convicting self-defenders.

Alternative Sentencing.

Fast track does not allow for any intensive assessment prior to the plea agreement. Because first-time domestic violence defendants prosecuted under fast track are not subject to jail time, all offenders are sentenced to treatment regardless of the level of danger they present to the victim and the community.