H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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New 2011 State Law Increases Pre-sentence Investigative Report Requirements Before a Judge Passes a Colorado Sentence

With an Effective Date of August 10, 2011 this new law will require probation officers across the state to provide additional information to sentencing judges before these judges make sentencing decisions.

Summary of The New Law

This new law expands the existing statutory requirements for presentence investigation reports (PSIRs) that are completed by probation departments.

The PSIR report must, as a result of this new law, include the following sections:

• an assessment of the offender’s criminological risks and needs;

• an analysis, based on previously mentioned risk-needs assessment, of which sentencing option is most likely to reduce recidivism by the offender;

• sufficient data to allow the court to determine: whether the offender is suitable for one or more containment options that do not entail incarceration; and the form and appropriate conditions of probation, if appropriate;
and

• a description of the rates of recidivism and projected costs, if known, associated with each sentencing option available to the court.

The present state of the law includes four specified purposes of sentencing.

This new law adds MUCH NEEDED additional purposes, which will assist the Colorado sentencing judge to select a sentence alternative, a sentence length, and a level of supervision that addresses the offender’s individual characteristics and reduces potential recidivism by that offender.

The sentencing court is required, before sentencing an offender to a period of incarceration, to review the purposes of sentencing and determine which sentencing option will best achieve such purposes.


H. Michael’s Take

While this determination is not required to be a part of the court record, nor is it to be used as the basis for challenging any sentence issued by the court, it will assist criminal defense lawyers and formulating arguments to persuade judges NOT TO INCARCERATE individuals if there are other – more humanistic and compassionate – alternatives.

The goal of the process is to provide the court with all available relevant information so the court can determine the best sentencing option for the defendant. The PSIR currently includes a risk-needs assessment and a list of conditions under which a defendant can be safely managed in the community should the court choose to sentence the defendant to probation.

Here is the new section:

16-11-102. PRESENTENCE OR PROBATION INVESTIGATION.

(1.9) EACH PRESENTENCE REPORT SHALL ALSO:

(a) INCLUDE THE RESULTS OF AN ACTUARIAL ASSESSMENT OF THE OFFENDER’S CRIMINOLOGICAL RISKS AND NEEDS;

(b) PROVIDE SUFFICIENT INFORMATION TO ALLOW THE COURT TO CONSIDER:

(I) WHETHER THE OFFENDER IS A SUITABLE CANDIDATE FOR A SENTENCING OPTION THAT DOES NOT INVOLVE INCARCERATION OR A COMBINATION OF SENTENCING OPTIONS THAT DOES NOT INVOLVE INCARCERATION; AND
(II) THE APPROPRIATE CONDITIONS TO IMPOSE IF A DEFENDANT IS SENTENCED TO PROBATION;

(c) DESCRIBE THE PROJECTED COSTS, IF KNOWN, THAT ARE ASSOCIATED WITH EACH SENTENCING OPTION THAT IS AVAILABLE TO THE COURT; AND
(d) SET FORTH THE PURPOSES OF TITLE 18, C.R.S., WITH RESPECT TO SENTENCING, AS SUCH PURPOSES ARE DESCRIBED IN SECTION 18-1-102.5,
C.R.S.