Is Colorado Revised Statutes Section 14-2-205 Still Good Law?

Wife's land subject to judgment. When any woman against whom liability exists marries and has or acquires lands, judgment on such liability may be rendered against her and her husband jointly, to be levied on such lands only.

- Section 14-2-205, Colorado Revised Statutes.

The statute above, part of the Married Women's Property Act passed very early on in Colorado's history (actually a few years before its admission to statehood when it was under the territorial legislature rather than the state legislature), remains on the books exactly as it read when it was enacted in the late 1800s as part of a general package of legislation that reformed the common law rule that a married woman was subsumed as one person with her husband who was vested with all of her property, upon marrying and ceased to have an of the legal rights of an adult person. Most of the sections of the act had that effect.

But, this section, by its terms (despite the fact that the heading for the section doesn't give a clue that this is the case), this section would suggest that if a woman had an unpaid debt from before the marriage, married, and then, for example, acquired a home which she and her husband co-owned, that both the half of the home owned by her, and the half of the home owned by him would be subject to liquidation for payment of the debt, despite the fact that it was her sole pre-marital debt that he wouldn't otherwise have any personal liability upon, and that the reverse (in the case of a man with premarital debts) would not be true. This gives creditors access to more assets than they would otherwise have available to them from which to collect debts of recently married women.

While some debts contracted for "necessities" by a married person in a single spouse's name may be the responsibility of the other spouse, and a spouse may be responsible for the other spouse's automobile accident liability under the "family car doctrine," the general rule is that a spouse is never legally responsible for the other spouse's sole debts and that one spouse's interest in land cannot be seized for the other spouse's debts in the absence of a fraudulent transfer.

The statute surely violates the intermediate scrutiny test for gender distinctions under the 14th Amendment's equal protection clause, but normally the remedy would be simply to say that wives who co-own real estate with their husbands have responsibility for their husbands' pre-marital debts just as husbands do for their wives under this statute.

This is the standard way that statutes that use masculine language only are interpreted and the reverse ought to be true, even though this is a case where the original intent of the statute (enacted when the 14th Amendment didn't apply, interestingly) was probably not to do so, because it was enacted in response to previously unequal treatment of the pre-marital debts of husbands and wives.

The law in Colorado's case, however, probably due to wholesale copying from the laws of some other state, corrected a problem that Colorado didn't have. Unlike some states in the Eastern United States, Colorado has never had the doctrine of tenancies by the entireties that prohibited judgment liens against a single spouse from attaching to a single spouse's interest in real property co-owned by a husband and wife. So, a husband and wife purchasing real property as co-owners does not impair the ability of a wife's pre-marital creditors to collect from her as it would, for example, in Boston where the tenancies by the entireties doctrines survives.

But, there is no obvious constitutional principle that would prohibit the law from making all of real estate jointly owned by spouses subject to the pre-marital claims of one of the spouses, and the general rule is that statutes are given effect according to their plain language. In order to escape the claim of a creditor that this expands their collection rights, a debtor husband would have to argue that the law doesn't really mean what it seems to say on its face, given the larger intent of the Married Women's Property Acts to simply treat married women the same way that unmarried women are treated in private law. This argument could be made, and its disuse suggests that there are widespread assumptions that creditors don't have this right, but such an argument would hardly be a slam dunk. Moreover, most individual consumer debt collection defendants (and some of the lawyers who represent them) aren't legally sophisticated enough to make that kind of argument.

Interestingly, there is not a single reported case that has ever discussed this statute in the entire history of Colorado, despite the fact that this would be a rule that would seem to favor creditors in debt-collection actions that could benefit that class of creditors thousands of times per year. The leading treatise on debt collection law in Colorado, by Stephen W. Siefert, "Colorado Creditors' Remedies - Debtors' Relief," doesn't ever mention the statute once. Neither does the treatise, "Colorado Family Law and Practice," by Frank L. McGuane, Jr. and Kathleen A. Hogan. While this could simply be a function of the law being unambiguous, the more likely reality is that it is forgotten and not utilized because it doesn't make logical sense in the context of the contemporary was that we think about the property rights of married people. Most lawyers don't expect it to be there and therefore don't look for it, and don't expect it to work, in the rare cases where they do know about it and it does apply by its terms to a case.

READ MORE - Is Colorado Revised Statutes Section 14-2-205 Still Good Law?

What Drives Court Dockets In Colorado?

The 2010 Annual Report of Colorado's Judicial Branch, as usual, is one of the best empircal descriptions of what is going on in the state courts. This year is notable for including beter data about hearings, as well as "trials" than previous years.

Overview

Colorado's superior jurisdiction judicial branch courts are its District Courts, which are unified in most of the state, but in Denver are divided between the District Court, the Denver Probate Court and the Denver Juvenile Court. The Denver District Court also has a number of special responsibilities that do not involve a separate court as the venue for cases involving state government that are localized to the capital. Seven district courts have divisions that double as "water courts."

Colorado's primary inferior judicial branch courts are its County Courts. Outside Denver, these are identifical, but in Denver the County Court also doubles as a municipal court where ordinances are enforced. Small claims court is a division of the County Courts. All of these courts, except for the Denver County Court, are part of the state judicial system with judges appointed by the Governor. Denver County Court has a hybrid city and state status.

Crimes other than ordinance violations are prosecuted by District Attorneys, who are locally funded and elected from a judicial district but are formally considered to be state employees.

Ordinance violations at the county level are generally prosecuted in county court by country attorneys (a position distinct from the District Attorney that mostly is responsibile for representing county government as in house counsel in civil matters).

Ordinance vilations at the city level are generally prosecuted in municipal courts that municipalities may established by city attorneys. Municipal courts are regulated by state law, by have judges appointed by the city, are administered by the city and are not part of the comprehensive state record keeping system in place for state courts. In practice, it is common for the same person to be a municipal judge for multiple municipalities, and/or to be both a part-time county court judge in a rural county and a municipal judge at the same time. State law limits the magnitude of the criminal sanctions that can be imposed for ordinance violations (basically limiting the punishment to that available for less serious state misdemeanors) and provides for the appeal of municipal court judgments to the state courts, in a manner typical to that of other appeals for courts of record with lawyer judges, and with a trial de novo in the case of municipal courts not of record. There are 273 municipalities in the State, but not all of them have municipal courts and very few of them have a full time municipal judge. The lion's share of municipal court cases concern traffic violations prosecuted via municipal ordinances, although they also include a smattering of ordinance violation cases.

Non-lawyer judges are permitted in rural county courts and in municipal courts not of record, but in practice, there are no more than four non-lawyer judges in the state courts and very few who preside over municipal courts.

Trials, Hearings and ADR

There were 1399 jury trials in District Court in Colorado in fiscal year 2010: 1,059 in criminal cases, 306 in civil cases, and 34 in juvenile cases (generally only termination of parental rights cases give rise to a right to a jury trial in juvenile cases). I know from other data that approximately 75% of general jurisdiction civil jury trials are personal injury cases.

There were also 763 bench trials in District Court: 53 in criminal cases, 368 in civil cases, and 342 in juvenile cases (many of which are quasi-criminal juvenile delinquency cases).

There were 13,860 domestic relations hearings in District Court: 13,487 permanent orders hearings in dissolution of marriage cases, 202 legal separation hearings, and 171 invalidity of marriage hearings. Note that almost every dissolution of marriage or legal separation of invalidity of marriage case must be concluded with a hearing (including every case where children are involved) even if the cases are uncontested. So this doesn't necessary capture the full number of active litigations in these cases.

There were 183 mental health hearings in District Court: 49 for involuntary committment for alcohol treatment, 78 long term certification hearings, and 56 short term certification hearings.

There were 2,729 probate hearings: 430 for combined conservatorships and guardianships, 614 for conservatorships without guardianships, 1,517 for guardianships without conservatorships, 137 for the formal probate of a will, 11 for will contests, and 20 hearings related to trusts. Many of the conservatorship, guardianship and formal probate cases are not genuinely contested but do require in court testimony to establish the faces beyond mere affidavits.

In County Court in Colorado, in fiscal year 2010, there were 1,321 jury trials: 821 in misdemeanor cases, 483 in traffic cases, and 17 in civil cases.

In County Court there were 4885 bench trials: 275 in misdemeanor cases, 176 in traffic cases, 1,295 in civil cases other than small claims cases, and 3,139 in small claims cases. There were also 9,053 final hearings in infraction cases.

These figures, naturally, omit, federal court trials and hearings, and hearings in administrative courts (e.g. DMV license revocation hearings). This list also omits parole revocation hearings and many hearings that aren't the moral equivalent of a final bench trial in a case (e.g. schedulinng hearings, motion hearings, temporary orders hearings, contempt hearings, etc.).

Compared To Case Loads

District Court Civil

There were 116,346 civil cases filed in District Court in Colorado in fiscal year 2010, that produced 306 jury trials and 368 bench trials, but not all of those filings are created equal.

Rule 120 hearings filings (a summary hearing, often uncontested and dispensed with after filing for lack of objection, in the non-judicial mortgage foreclosure process) accounted for 39,404 of those cases. The bulk of of the non-judicial foreclosure process is handled by the executive branch public trustee's office, whose duties are ministerial and comparable to those of a sheriff enforcement a judgment rather than by a court imposing one. The court in a rule 120 hearing addressly solely the question of the existence of default justifying foreclosure (in all but rare cases due to non-payment of amounts due on a promissory note), not damages.

Distaint warrant filings (state tax lien filings) accounted for another 45,528 filings and generally don't produce a hearing. A distaint warrant is roughly equivalent proceedurally to the administrative registration of a judgment obtained in another state and does not require proof of the merits before a claim can enforced against property.

These case make up 73% of the district court civil docket, but have a comparatively trivial impact on the court's work load. The 578 foreign judgment filings, 322 out of state subpeonas and 278 name change petitions are also almost purely administrative matters that do not greatly burden the court.

There were 30,236 cases of other types on the District Court civil docket in the state.

About 5,809 are claims that fit in the heartland of tort law: cases involving personal injuries including worker's compensation cases that end up in court) and wrongful deaths, breach of warranty, public nuisance, sexual harassment cases, fraud cases and malpractice cases (of all kinds) as well as motions to approve transfers of structured settlements. These cases make up a greatly disproportionate share of civil jury trials in District Court with about one in thirty-three of them actually proceeding to a jury trial

About 3,527 involve judicial efforts to establish title to or possession of specific pieces of property often in connnection with the collection of a debt. A big portion of the remainder of the cases, 13,165 involve contractual disputes or rights in real estate or other property. The number of jury and bench trials in cases such as these greatly understates the number of actual controversies resolve by the court process, because many "paperwork intensive" cases can be resolved by judges on the merits, or in a manner that makes a determination on the merits largely a foregone conclusion, in motion practice prior to trial.

Many cases involve judicial review of, or action collateral to that of other decision makers: There were 722 appeals from municipal or county courts and 72 cases to confirm arbitration awards. There were 3,820 cases are to seal records or seek habeas corpus relief that is generallly collateral to a criminal case. There were 5 public utility cases, 236 cases reviewing acts by local governments and by government officials, and 31 special district cases. Note also that appeals of municipal or county court cases classified as civil in district court, appear to include cases where the underlying matter appealed from would be a traffic or criminal case, and that it is possible to appeal such cases even in many cases when guilt is not disputed (and hence there was no trial) if there is an alleged error regarding the sentence. The number of civil cases appealed to District Court from county court or a municipal court is probably closer to one or two hundred.

This leaves 2,849 other kinds of cases on the docket. They include: 470 declaratory judgment cases, 583 injunctive relief cases, 1,484 cases classified simply as "other", 29 restraining order cases, and 334 contempt of court cases.

District Court Criminal

There were 36,993 criminal cases in District Court that were resolved with 1,059 jury trials and 53 bench trials (with the balance being resolved by plea bargain or dismissed prior to trial).

Probate Filings

There were 12,189 probate filings in Colorado in fiscal year 2010.

Of these, 5,600 were for the informal probate of a will, 1651 were for informal probate in an intestate estate, 425 were for the formal probate of a will, 225 were for formal probate in an intestate estate, 18 involved appointment of a special administrator where the probate or determination of intestacy was informal, 27 involved the appointment of a special administrator following a formal probate proceeding, 78 were small estates, 103 involved a determination of an heirship, 231 were trust cases, 93 were public administrator statements, and 149 involved "estates." All of these cases combined produced 137 hearings for the formal probate of a will (out of 452 such cases), there were 11 hearings for will contests (out of roughly 6,070+ wills presented for probate), and 20 hearings related to trusts (out of 231 trust cases). Less than two wills presented for probate in a thousand gave rise to a genuine will contest that must be resolved in a hearing in 2010 in the entire state of Colorado.

Denver's Probate Court has only a couple of dozen contested will hearings a decade. In 2010, Denver's Probate judge and her magistrate handled held 342 guardianships and/or conservatorship hearings, 3 contested will hearings, 14 formal probate hearings, and 7 trust hearings. Thus, there were 6 or 7 guardianship or conservativeship hearings in a typical week, and there was two hearing related to the probate of a will or to trusts every month. In addition, official statistics do not reflect, but there probably were, proceedural hearings, hearings on creditor's claims, and hearings related to accountings in probate and guardianship and conservatorship estates.

Of the 8,220 decedents estates that were handled by the courts in Colorado in any capacity in fiscal year 2010, only 45 (about half of one percent) involved the appointment of a special administrator which gives rise to the kind of close court oversight of the estate that is routine in many states such as Florida, New York and Ohio. Slightly more than 90% of primary decedents estates that had any court involvement in Colorado were handled administratively and approved as a matter of course by the Probate Registrar in the clerk of the court's office, rather than by a judge, on the basis of a simple court form. Other parts of the probate docket were also purely administrative and required little or no judicial intervention: 592 were trust registrations, 36 were will transfers (where a will has been lodged and is moved to a new court), 4 were registrations of foreign orders, 449 were ancillary proceedings to a probate elsewhere domesticating a foreign appointment as personal representative, and 1 was a disclaimer filing.

In contrast, there were 192 adult conservatorships, 378 combined conservatorship and guardianship proceedings, 227 conservatorships for a minor, 668 adult guardianships, 560 guardianships of minors, 26 involved approving single fiduciary transactions, and 374 were personal injury settlement approvals. These produced 430 hearings for combined conservatorships and guardianships, 614 hearings for conservatorships without guardianships, 1,517 hearings for guardianships without conservatorships. Thus, almost every guardianship and conservatorship case produces a hearing and some more then one. In most, the key issues are determining the competency of the adult in question (if the case concerns an adult), and determining if the person seeking to be appointed as guardian or conservator is the right person to do so. Frequently, only one of these questsion, or neither of these questions, is at issue.

County Court Civil

County courts in Colorado in civil cases in 2010 had 1,295 in civil cases other than small claims cases and 17 civil jury trials.

This comes from 148,425 money claims, 42,689 eviction cases, 531 cases to repossess personal property, 13,257 restraining order cases, 1,496 name change petitions, 27 purely administrative registrations of foreign judgments, and 529 cases classified as "other." The vast majority of these cases are low stakes cases brough by collections attorneys for businesses in the business of lending money and by professional landlords. Less than 1% of civil cases in county court go to trial and only about 1.2% of trials are jury trials. This is particularly notable given the fact that county court procedure has little or no pre-trial dispositive motion practice. The vast majority of cases either produce default judgments or are resolved in a pre-trial settlement (usually reach in person in the court room at an initial appearance date or, much less frequently, immediately prior to a scheduled trial).

Court Sponsored Mediation

The courts also sponsor mediation (or its close cousins, excluding arbitration) through its ADR programs. There were 7,160 such cases in Colorado in the fiscal year 2010: 5,476 in domestic relations cases, 410 in juvenile dependency and neglect cases, 200 in child support enforcement cases, 172 in juvenile delinquency cases, 8 in probate cases, 283 in district court civil cases, 130 in criminal cases, 435 in county court civil cases, 36 in small claims cases, and 10 in restraining order cases. While court affiliated domestic relations ADR is offered in all judicial districts, other forms are offered only in some judicial districts.

For example, the Fourth Judicial District (El Paso and Teller Counties) is the only one with court affiliated, formally recognized ADR programs for criminal cases and restraining order cases. It also accounts for just under half of the dependency and neglect ADR cases (with all but ten of the rest being in Denver), and 57% of the county court civil ADR cases. All but 7 of the small claims ARD cases are in the 11th Judicial District (Chaffee, Custer, Fremont and Park counties). All but eight of the child support enforcement cases happen in one of four judicial districts in the Denver metro area (the 2nd, 17th, 18th and 19th judicial districts). Most court affiliated ADR programs in Colorado in non-domestic relations cases are effectively pilot programs.

Analysis

On the civil side, courts are primarily institutions in which people invoke their rights and provides a formal forum for official notice and communication between parties involved in a claim; court imposed dispute resolution in civil cases is by comparison almost a side proposition, particularly in cases where the gravamen of the action is to secure compulory means by which to collect a contractual or quasi-contractual or government agency imposed debt.

Cases involving bona fide disputes over liability in civil cases, the analysis of which makes up the bulk of the training of new lawyers, makes up a very modest share of the litigation docket. Moreover, a very large share of all of those litigated cases with disputed liability involve extremely ordinary contract terms and claims and defenses, or tort suits for simple negligence in utterly pedestrian fact scenarios (e.g. car accidents and slip and falls).

Lenders, landlords and government agencies make up the vast majority of plaintiffs, and a very large share of the rest of the cases are domestic or quasi-domestic in nature.

Where there are bona fide disputes, they frequently involve cases where the existence of an event giving rise to liability is not seriously contested, but there is legitimate dispute over the appropriate remedy, mostly because the facts are muddy and the law (e.g. in domestic relations cases or in non-economic damages cases) does not provide a definitive answer even in cases where the facts are known with absolute certainty.

Courts, of course, have authority to adjudicate a far, far wider range of disputes, but the exceptions make up a surprisingly small share of the docket relative to the bread and butter component of the docket.

READ MORE - What Drives Court Dockets In Colorado?

Square State Corporate Law

If I were advising a company about to go public on whether it should choose Colorado's corporate law, rather than say, Delaware's corporate law, would I do so?

Probably not. Why?

It isn't because Delaware corporate law is motivated by director primacy. My reasoning would be more mundane.

One of the biggest concerns for counsel seeking to incorporate outside Delaware or New York is that there simply isn't much modern corporate law precedent in any given non-Delaware, non-New York State jurisdiction on a great many issue of concern to publicly held corporation lawyers. Few states besides these states have any significant trial court reporting of corporate law rulings.

By my count, for example, which almost certainly double or triple counts a few cases, Colorado has fewer than 57 cases (state appellate and federal trial court and appellate) decided in 1980 or later (the last thirty-one years) interpreting its corporate code, some of which have been superceded by subsequent legislation (e.g. a line of cases concerning the duties of directors of insolvent corporations to creditors), and others of which deal with issues that only come up for "amateurs" and closely held corporations (e.g. the effect of failing to file a certificate of incorporation and the state's alter ego cases), rather than the kinds of issues (e.g. director obligations in regard to poison pills) that matter to large publicly held corporations with reasonably competent counsel. In state court, a significant share of those cases would also be federal court cases that are only persuasive authority (and a fair number of the Colorado precedents in the state reverse prior federal court holdings on corporate law issues in the state), and on any given issue, only a handful would be relevant.

For example, there are just three reported cases in the history of the state on indemnification of officers and directors, and just two on director conflicts of interest. Just one case in the history of the state addresses the business judgment rule or a director's duty of loyalty. There are two reported cases in the history of the state on derivative actions. The last time there was a reported decision on a proxy fight in Colorado was in 1956.

Delaware law and New York law, because each has quite different statutory language, often does not offer very persuasive precedent on Colorado corporate law issues.

Colorado's corporation code is well written and regularly updated to address the concerns raised by the bar. But, frequently, a lawyer forced to take a position on the meaning of the law when a corporate law issue presents itself must rely on the text of the statute, a decade old bar journal article, and equally thin precedents from other states with similar statutes, which makes for very thin (or very fat and not very definitive) legal briefs and memorandums of law. This is quite an uncomfortable position for a lawyer in a case where hundreds of millions of dollars may be at stake.

Again, to be clear, there is very little, if anything, wrong with the substance of Colorado's corporate law statutes. Indeed, on the merits, I probably would usually find Colorado's rule to be superior to that of Delaware when there is a clear difference, such as the arguably excessive ability of Delaware directors and officers to reduce their legal liabilities to shareholders relative to officers and directors in Colorado corporations. But, in a great many situations there is considerable ambiguity concerning what the statute requires when it comes to making a nitty-gritty line drawing legal judgment about what Colorado corporate law requires, since courts have particularly great latitude to decide cases of first impression.

The heavily litigated points of corporate law in Delaware are far less useful to closely held firms, and Colorado has more depth in its case law on issues of special relevance to closely held firms. Also, Colorado law, because it is not embellished with many layers of case law doctrine, provides few instances of laws that don't mean what they appear to mean for corporate officers and directors who, despite my best efforts, are determined to try to figure out the law for themselves, rather than consulting a lawyer.

Delaware's edge is also far narrower in the case of "uncorporations," such as limited liability companies, where no state has a long tradition of case law and individually drafted operating agreements matter more than express statutory rules.

As unfair as it is that the elected representatives of the state of Delaware should get to decide how corporate law is made for the vast majority of large publicly held corporations in the United States, for the foreseeable future, deficiencies in Delaware's corporate laws are more effectively addressed through federal law than through efforts to get corporations to incorporate in the states where they actually have their headquarters.

READ MORE - Square State Corporate Law

Does Recidivist Sentencing Work?

Making the length of a prison sentence conditional on an individual’s offense history is shown to be a powerful way of preventing crime. Under a law adopted in the Netherlands in 2001, prolific offenders could be sentenced to a prison term that was some ten times longer than usual. We exploit quasi-experimental variation in the moment of introduction and the frequency of application across 12 urban areas to identify the effect. We find the sentence enhancements to have dramatically reduced theft rates. The size of the crime-reducing effect is found to be subject to sharply diminishing returns.

From the abstract to Preventing Crime Through Selective Incapacitation by Ben Vollaard.

Some highlights:

[J]udges almost exclusively sentenced drug-using, older individuals under the law for whom there was thought to be no hope of preventing high-rate offending by any other means than incapacitation. Most of the convicted offenders were not able to maintain a normal life style. They were out of work and did not have stable housing. They committed theft for a living, collecting a daily income of some 50 to 100 euro ($70-130) to be able to maintain their habit, which implies stealing property valuing some 300 to 600 euro ($400-800) on a daily basis. By 2001, many of these highly prolific offenders were aged 40 or over: they had fallen victim of the heroin epidemic that swept Europe back in the 1980s. The offenders spent some three to four months in prison each year in absence of the new law, and some had as many as 300 offenses on their criminal record. On average, offenders had been convicted 31 times prior to being sentenced under the habitual offender law. The enhanced prison sentence was not only meant to reduce crime through incapacitation but to provide a window for coercive treatment as well. Incarceration was often combined with drug treatment and other rehabilitative services, such as social skills training. Evaluations of the law suggest the treatment programs had little effect on recidivism. . . .

The offense data show that 85 percent of all offenses known to the police were committed within the urban area an offender has been assigned to. The other 15 percent of offenses were mostly committed in smaller communities directly bordering the urban area. . . .

[T]he rate of theft is some 30 to 40 percent lower as a result of selective incapacitation of prolific offenders. The size of the drop in crime corresponds with the results of some back-of-the-envelope calculations. If 1,200 offenders are responsible for 70 percent of crime, as we argued above, then the close to 700 offenders serving time under the law by mid-2007 are responsible for 40 percent of crime. . . . The crime-reducing effect of the law is smaller than this percentage share, however, since some of the offenders would have been doing time also in absence of the law. Assuming 8 additional months of incarceration per year as a result of the law, the drop in crime can be put at some 30 percent, which is close to what we find. . . . under the assumption that the affected offenders spend 8 additional months in prison per year, the law prevents some 80 thefts from car and 9 domestic burglaries annually per long term incapacitated offender. That implies that the costs per crime prevented are equal to some 600 euros. In other words, if the social costs of a domestic burglary and a theft from car are higher than 600 euros, then the policy is welfare improving. Estimates of the costs of crime are surrounded by controversy. Ex post approaches estimate the cost of crime that has already occurred to identifiable victims. Based on jury awards, Roman (2009) estimates the average costs of a burglary to be $4,444 (3,300 euro). Accounting for all of the costs that are known to be related to crime, including damage and the costs of use of the criminal justice system, the Home Office produces a somewhat higher estimate of the costs of a burglary of 4,600 euro ($6,000) per incident. A separate estimate for the cost of a theft from car is only available from the Home Office study, which puts it at 1,200 euro ($1,600) per incident. . . .

A habitual offender law adopted in the Netherlands in 2001 allowed for a two to three year prison sentence for offenders with ten or more offenses on their criminal record. Although the group of offenders sentenced under the law accounted for only 5 percent of the prison population six years after its introduction, the sentencing policy lowered the rate of burglary and theft from car by an estimated 40 percent through the incapacitation effect alone. The estimated impact of the law is large, but in line with self-reported crime. In addition, police counts of active prolific offenders are found to go down proportionally with the number of prolific offenders serving extra time in prison as a result of the law. . . .

Even for this highly selective sentencing policy that only affected 1,400 offenders in the period 2001-2007 we find evidence for rapidly decreasing returns to scale. The marginal crime-reducing effect of incapacitating another prolific offender declines by more than half from the lowest to the highest rate of application of the law. The benefit-cost ratio drops sharply when more offenders are serving time under the habitual offender law. The social returns to selective incarceration remain positive over the whole range of application of the policy, however. . . .

The incapacitation effect may be particularly large in the case of the Netherlands as the habitual offender law primarily affected offenders that were addicted to drugs, heroin in particular. These offenders tend to have an age-crime curve that is flatter than that of other groups of offenders – even other prolific offenders. Possible negative effects of longer prison sentences on the life of offenders such as disruption of employment, relationships and housing were limited as most of the affected offenders were out of work and did not have stable housing.

The Dutch policy of selective incapacitation started from a low base. The rate of incarceration in the Netherlands around 2001 was similar to the rate in the beginning of the 1970s in the US, for instance. Enhancing prison sentences of a few weeks or months to three years is likely to have a greater payoff in terms of preventing crime than enhancing prison sentences that are already many years long. To compare: an enhanced prison sentence for burglary of 2 to 3 years based on the Dutch habitual offender law is comparable to the default sentence for burglary in the United States. Our finding that the habitual offender law adopted in the Netherlands had a large incapacitation effect should therefore not be interpreted as evidence that all policies of selective incapacitation are likely to have a similarly favorable cost-benefit ratio. Given the rapidly diminishing returns to incarceration, the high costs of the enhanced prison sentences may soon exceed the benefits of crime prevented.

The delicacy with which the Dutch approach a very modest habitual offender law that applies only to those with ten previous offenses (although many of those would be misdemeanors under U.S. law and generally not within habitual offender provisions except under laws that allow aggravation of multiple theft amounts into a single felony theft prosecution), is itself fascinating. Habitual non-violent felony property crime defendants in Colorado and most U.S. states receive sentences many times as long.

Also, the fact that someone in the Dutch public policy process is even seriously trying to quantify the cost-benefit ratio of incarcerating habitual thieves for long periods of time, and considering even the economic impact of the sentence on the thieves themselves, is itself interesting. So too is the fact that somebody in the Dutch criminal justice policy making world finds bicycle thefts, larcenies from cars, and non-violent burglaries of unoccupied dwellings worth of interest at all. By comparison, most American criminal justice policymakers are so interested in reducing violent crime that any other objective is virtually irrelevant.

Felony Sentencing In The United States

A link to the latest data on felony sentencing in the United State can be found here (almost no state or national level statistics are kept on misdemeanor sentencing apart from overall jail incarceration rates, records of court cases commenced, and sometimes a distinction between the share of those in jail who are awaiting trial and those who are actually convicted). This year's highlights:

* In 2006 an estimated 69% of all persons convicted of a felony in state courts were sentenced to a period of confinement--41% to state prison and 28% to local jails.
* State prison sentences averaged 4 years and 11 months in 2006.
* Men (83%) accounted for a larger percentage of persons convicted of a felony, compared to their percentage (49%) of the adult population.
* Most (94%) felony offenders sentenced in 2006 pleaded guilty.

Jury trial rates do not exceed 5% for any category of crimes other than serious violent crimes. Even 61% of murder convictions are the result of guilty pleas.

The average burglary sentence in the U.S. in 2006 was 44 months of incarceration where incarceration is imposed (median 24 months), and the average larceny sentence was 22 months (median 12 months) of incarceration where incarceration is imposed. Of course, many and probably most of those sentences don't involve recidivist offenders.

Life sentences are imposed in the U.S. in about 25% of murders, 5% of rapes, 1.5% of robberies, 0.8% of non-rape sexual assault cases, 0.6% of aggravated assaults, 0.4% of other violent crimes, and 0.1% of non-violent crimes for which incarceration in prison is imposed as a sentence.

Surprisingly, no fine is imposed in 55% or more of cases for every particular kind of felony. Overall, fines are not imposed 62% of the time.

Colorado Sentencing in 2009

In Colorado, there were 42 habitual offender commitments to prison in fiscal year 2009 (see page 23 of the pdf), compared to 26-66 per year in years since 2005. These included a 40 year sentence for forgery, a 25 year sentence for burglary, four cases with an average 36 year sentence for burglary, three theft sentences of an average of 18 years each, four for trespassing or criminal mischief for an average of 11 years each, a 6 year forgery sentence, a 6 year perjury sentence, and an 11 year trespassing/criminal mischief sentence. Three habitual offender sentences were for escape, fourteen were for violent or weapon related crimes, six were for drug crimes, and two were for a felony traffic offense. All but one of the 42 habitual offenders were men and the trigger for habitual offender sentencing is two or three prior felonies of the relevant type under each habitual offender statute (there are several). While these terms are long, they are far more lenient in most cases than under California's controversial three strikes law. The average Colorado prisoner serves about half their full sentence due to good time and other considerations.

About 3% of offenders in Colorado prisons were sentenced under habitual criminal statutes. In all there were 22,961 people in Colorado prisons as of June 30, 2009. Another 12,773 were on parole.

The "need assessments" of Colorado prisoners is always notable.

Educationally, just 1% of those admitted to prison had an associates degree or more education although about 11% have some college, while 37% lacked a high school diploma with 36% being at least functionally illiterates who needed adult basic education instruction, rather than high school level GED instruction which would be too advanced for them. About two-thirds of those with either a high school diploma or GED had a GED rather than a high school diploma. So, less than a quarter of Colorado prison inmates graduated from high school in the ordinary course. In Colorado as a whole, 11% lack a high school diploma or GED, 89% of the age 25+ population has at least a high school diploma or GED, 65% have at least some college, 43% have an associates degree or higher degree, and 33% have a bachelor's degree.

About 8% had an IQ of under 81. A moderate to severe mental health problem is an issue for 30%. A moderate to severe substance abuse problem is an issue for 79%. A moderate to severe medical problem is present in 15%. Sex offenders make up 11% with another 5% suspected of having sex offense histories who are not convicted. An absence of adequate skills to get a job is a factor for 42%. Mental health needs differed considerably based on gender. A moderate to severe mental health problem was an issue for 22% of men and 55% of women.

The DOC doesn't include crosstabs in its annual report or relate needs data to recidivism data, although some data along that line are collected in a separate report and here. Offenders with mental health issues are slightly more likely to lack of high school diploma or GED (31%-32% v. 28%), to lack job skills (94% v. 91%), to be sex offenders (22%-24% v. 18%), to have substance abuse problems (80%-83% v. 78%) and to have anger issues (40%-41% v. 39%) than other inmates. They are much more likely to have medical problems (25%-28% depending on severity v. 16%), to have IQ below 81 (about 8% v. 4%), and to have suicidality issues (about 21% to 30% depending on severity v. 9%). Only 30% of inmates without a substance abuse problem have a high school diploma and 24% have neither that nor a GED.

Some mental health data don't make much sense. Those who were classified as having mental health issues often had prior psychiatric hospitalization (18%-24% depending on severity) and out patient mental health treatment (42%-47% depending on severity), but among those not classified as having mental health issues, 5% had prior psychiatriic hospitalization and 27% had prior outpatient mental health treatment, suggesting significant underdiagnosis of mental health issues by the DOC. Among those with mental health issues 23%-34% had a history of psychotropic medications, but so did 4% of those not so classified. Notably, less than 1% of inmates with mental health issues had a prior not guilty by reason of insanity case.

The most common mental health conditions were drug addiction, depression, bipolar disorder, anxiety disorders, alcoholism, schitzophrenia and psychotic disorders, dsythmic disorders, "disorders usually diagnosed in childhood" like ADHD, and "sexual and gender identity disorders" 1%. In all 34% of disciplinary violations were attributed to the 25% of inmates classified as having mental health issues in the detailed study on the issue, and these inmates were much more likely to be in solitary confinement or "close" supervision than other inmmates (23%-24% v. 11%), despite generally similar offense severity.

The overall percentage of inmates with moderate to severe needs in some category other than job skills (which almost all inmates seem to lack) is probably in excess of 90%, and once job skills are considered is probably in excess of 95%.

The DOC also doesn't detail good time forfeitures or gang crime connections in its annual report, although it tracks both. About 7% of Colorado inmates are eligible for deportation upon release because they are not U.S. citizens. About 9% are foreign born (the same as the 9% of the general Colorado population that is foreign born foreign born), but the remainder are U.S. citizens not eligible for deportation. Colorado's inmates are 45% Anglo, 32% Hispanic, 20% African American, 3% Native American and 1% Asian. Colorado as a whole is 71% Anglo, 20% Hispanic, 4% African American, 1% Native American and 3% Asian.

For prisoners released in 2005 and for prisoners released in 2006, the three year return to prison rate was 53.2% (a little higher for men, a little lower for women). The largest proportions of returns to prison are for technical violations of parole. For example, looking at the cohort released in 2004, the percentage of the cohort commiting ofirst time technical violations or new crimes by number of years from release is as follows:

---------------New Crime----------Technical Violation
Year 1----------8.8%------------------24.1%
Year 2----------6.2%-------------------7.8%
Year 3----------3.6%-------------------1.9%
Year 4----------2.3%-------------------0.4%
Year 5----------1.8%-------------------0.3%

Even a 1.8% crime conviction rate per year is huge compared to the general population. But, inmates in Colorado prisons are highly atypical of the general population in a variety of "needs" categories as well as in having a history of having seriously violated the law. About 43%, however, will go five years from release from prison without a single technical violation forcing their return to prison or new crime, and about 77% will not be returned to prison for a new crime in that five year time period.

Recidivism rates are higher for those with moderate mental health issues than those with none or those with severe mental health issues.

The average annual cost of incarcerating an inmate in Colorado was $32,338 in fiscal year 2009. The state has 23 prisons. None of them was under 100% of capacity. Twelve were over 100% of capacity, in one case at 186% of capacity (Skyline Correctional Center). The state prison system employs more than 6,000 people full time. State prison populations did almost hold steady in 2009 (increasing by only 189 inmates), however, after many years of steady and rapid prison population growth due to both decreased admissions and increased releases. New crime convictions leading to prison sentences declined, while technical parole violations rose.

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