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Opinion Columns

Silverman: The criminal justice pendulum is swinging the other direction in Colorado

Jared Polis is no John Hickenlooper. When it comes to criminal justice, Gov. Polis is way less cautious and far more progressive. 

An outspoken critic of the War on Drugs, Polis was also at the forefront of cannabis legalization while Hick always seemed conflicted.  

What penalty fits what crime? Colorado’s view on proportionality has swung wildly over time, and with election results.

Craig Silverman

Two days before last Christmas, and on the first day of Hanukkah, Polis, exercising his executive power, let loose lots of convicted felons. Some had sentences commuted, others got pardons. 

Included for pardon was Ingrid Encalada LaTorre, a Peruvian national who came to this country illegally and has long lived in Colorado. The federal government ordered her deported after she was convicted of Criminal Impersonation, Colorado’s lowest level felony. 

LaTorre had stolen an American’s Social Security number. To avoid her ordered deportation, she spent years in sanctuary churches. LaTorre’s loud plea for pardon was rejected in 2018 by Hickenlooper.  

Not that Hick rejected all pleas for mercy. On his way out in 2018, he granted clemency to first-degree murderer Nathan Ybanez. 

On June 5, 1998, Highlands Ranch mother Julie Ybanez was beaten and strangled to death by Nathan, her 16-year-old son.  Nathan’s friend, Erik Jensen, 17, was also charged and convicted as an accomplice, but the main perpetrator was Nathan. Hick rather inexplicably left Jensen’s life sentence alone. Polis just commuted Jensen’s life sentence.

READ: Colorado Sun opinion columnists.

The Pendulum Foundation, which advocates leniency toward juveniles convicted of adult crimes, was started by Jensen’s parents. 

Life sentences in Colorado meant only 10 years behind bars until 1977, when the Colorado General Assembly, led by Rep. Anne Gorsuch, doubled it to 20 calendar years before parole eligibility.

In 1985, it was doubled again to 40 years, and in 1990, Colorado law was further toughened to make a life sentence mean actual life without possibility of parole. In 2012, the U.S. Supreme Court ruled that over 40 years imprisonment was unconstitutionally harsh as applied to children convicted of murder. 

One of the first life sentences in which I got involved was prosecuting habitual criminal Sammy Abeyta in 1983. He’d committed a home invasion armed robbery of Helen Flores

We threw the book at Sammy Abeyta. We used Colorado’s toughest habitual criminal law, based on Abeyta’s numerous prior felonies, many of which were related to dangerous drugs.  

Daril Cinquanta, author of The Blue Chameleon, The Life of a Supercop, remembers Sammy Abeyta better than I do. As one of Denver’s hardest charging detectives, Cinquanta had many encounters with Abeyta in the 1970s, and their animosity was mutual. When Sammy Abeyta got shot at 5th and Santa Fe, he blamed his nemesis cop, Cinquanta. But Daril denies it, and Abeyta was not a believable accuser.  

In his fascinating memoir, Cinquanta reminisces fondly about working on DPD’s Special Crime Attack Team. SCAT decided daily which career criminals to surveil and catch in the act. Cinquanta told me last week, “We followed them until we shot them or arrested them.” 

Calling career criminals “creatures of habit,” with “dope as the common denominator,” former Detective Cinquanta declared, “I don’t believe in rehabilitation, I believe in recidivism.”

Late last year, in a series of habitual criminal case appeals, the Colorado Supreme Court adjusted the way trial courts must assess lengthy habitual criminal sentences. Justice Carlos Samour, appointed by Hick in 2018, wrote the majority opinion in the Belinda May Wells-Yates case. 

As of June 2012, Wells-Yates was stealing property from cars. She sold an undercover cop a birth certificate, a Social Security card and a New Mexico driver’s license. Wells-Yates discussed the prospect of future transactions, including the sale of opioids and guns.

Several days later, as Colorado’s Waldo Canyon Fire exploded, Wells-Yates confided to the cop she was “chasing the fire,” stealing property from evacuated houses.

The undercover officer set another meeting with her during which she sold him stolen property, including jewelry, coins, musical instruments, power tools, electronics and business checks. After that meeting, Wells-Yates was arrested. 

Searches of Wells-Yates and her property revealed methamphetamine, scales and other stolen stuff. Belinda had several prior felonies for meth possession crimes in the late 1990s. A huge sentence was imposed, but three Colorado Supreme Court justices said not so fast or, more precisely, not so long.

The case was sent back to El Paso County District Court to conduct a proportionality review based on the way Colorado now regards drug crimes.

Habitual criminal sentences, without analysis of proportionality based on new sensibilities, is now considered “cruel and unusual punishment” under the Eighth Amendment to the United States Constitution, and Article II, section 20 of the Colorado Constitution.

Colorado’s sentencing pendulum is also influenced by national criminal justice attitudes. Major presidential candidate Pete Buttigieg favors decriminalizing all drugs, eliminating incarceration as an option for drug possession. 

President Trump’s First Step Act has dramatically reduced sentences for thousands of federal prisoners. California is reevaluating all its life sentences.

Look for lots more leniency toward convicts in 2020. Even though Colorado voters favor capital punishment, dominant Dem legislators don’t. Polis made clear his opposition to the death penalty before he was elected.

Criminal sentences will be further reduced. The pendulum that once swung as hard as a slammed shut prison door against Colorado criminals is swinging the other way now. 

Craig Silverman is a former Denver Chief Deputy DA who also has worked in the media for decades. Craig is columnist at large for The Colorado Sun. He practices law at the Denver law firm of Springer & Steinberg, P.C.