Colorado § 16-13-216 - Powers and duties of the board.

§ 16-13-216. Powers and duties of the board.

(1) (a) Within six months after a person is committed pursuant to section 18-1.3-904, C.R.S., and at least once during each twelve months thereafter, the board shall review all reports, records, and information concerning said person, for the purpose of determining whether said person shall be paroled.

(b) The board shall, in each instance, make a written ruling and shall serve a copy of the ruling upon the said person.

(2) The board is authorized and it is its duty to order the transfer of any person committed pursuant to section 18-1.3-904, C.R.S., if the board deems it to be in the best interests of said person and the public, to any facility under the jurisdiction of the department or to the department of human services subject to the availability of staff and housing.

(3) The board is granted exclusive control over the parole and reparole of all persons committed pursuant to section 18-1.3-904, C.R.S., regardless of the facility in which those persons are confined.

(4) The board is authorized to parole and reparole, and to commit and recommit for violation of parole, any person committed pursuant to section 18-1.3-904, C.R.S.

(5) The board is authorized to issue an absolute release to any person committed pursuant to section 18-1.3-904, C.R.S., if the board deems it in the best interests of that person and the public and that the person, if at large, would not constitute a threat of bodily harm to members of the public.

(6) Except as otherwise provided in this part 2, the board has all the powers conferred and duties imposed upon it with respect to the parole of prisoners generally, in the parole and supervision of persons committed pursuant to section 18-1.3-904, C.R.S.

Source: L. 72: R&RE, p. 259, § 1. C.R.S. 1963: § 39-13-216. L. 80: (2) amended, p. 524, § 1, effective March 25. L. 94: (2) amended, p. 2652, § 128, effective July 1. L. 2002: Entire section amended, p. 1498, § 152, effective October 1.

Cross references: (1) For liability for the costs of the care and treatment of persons transferred to a facility under the jurisdiction of the department of human services pursuant to this section, see § 27-92-101.

(2) For the legislative declaration contained in the 1994 act amending subsection (2), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2002 act amending this section, see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Annotator's note. Since § 16-13-216 is similar to repealed § 39-19-6, CRS 53, a relevant case construing that provision has been included in the annotations to this section.

This section does not confer judicial or sentencing powers on board. Section 16-13-203 providing for commitment to a state institution of not less than one day nor more than life, and subsection (2) of this section authorizing the parole board to transfer such persons after sentence to other institutions to effectuate purposes of act, do not confer judicial powers on the parole board or involve the sentencing authority of the court. Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655 (1961).

Purpose of section. The sex offenders act is concerned with the more efficient control, treatment, and rehabilitation of persons convicted of sex offenses. Control of the person must be assured before treatment and rehabilitation is undertaken; this may require incarceration in the penitentiary. Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655 (1961).

It empowers the parole board to transfer persons sentenced under this act among institutions when deemed appropriate to effectuate purposes of act. Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655 (1961).

Habeas corpus is not the remedy to rectify failure of the parole board to perform its duty to transfer prisoners under this section. Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655 (1961).

Parole is a mere matter of privilege, grace, or favor and a prisoner is not entitled thereto as a matter of right. Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655 (1961).

If a parole board determines an inmate is in need of further treatment, it can condition parole upon participation in a sex offender treatment program. Christensen v. People, 869 P.2d 1256 (Colo. 1994).

Once a sex offender is sentenced to an indeterminate term under the sex offenders act, the authority to make parole or release decisions rests with the parole board. Because sex offender's habeas corpus petition did not set forth facts which, if proven, would entitle him to immediate release and he alleged no facts showing that the parole board's denial of parole or release was unconstitutional, defendant's petition must be dismissed. Christensen v. People, 869 P.2d 1256 (Colo. 1994).

The provisions of subsection (1) granting yearly parole consideration for persons sentenced to an indeterminate term pursuant to § 16-13-203 conflict with the provisions of § 17-2-201 (4)(a), which allow the parole board to consider parole for sex offenders every three years. Since § 17-2-201 (4)(a) is the later enacted statute, the provisions of that section prevail. A person sentenced to an indeterminate sentence pursuant to § 16-13-203 is entitled to parole consideration only every three years. White v. Van Pelt, 55 P.3d 823 (Colo. App. 2002).

Review satisfies procedural due process. The mandated review by the board of parole within six months after the individual is committed and every year thereafter satisfies continuing procedural due process requirements. People v. White, 656 P.2d 690 (Colo. 1983); People v. Kibel, 701 P.2d 37 (Colo. 1985).

An order of mandamus to require the parole board to place the defendant in a facility where he had access to sex offender treatment was properly denied. This section gives the parole board discretion as to whether to order a transfer based upon the best interests of the inmate and public. Since an order of mandamus may only issue where the plaintiff establishes both a clear right to the relief sought and a clear duty on the part of the defendant to act, the court will not issue an order for relief that lies within the statutory discretion of the parole board. White v. Van Pelt, 55 P.3d 823 (Colo. App. 2002).

PART 3

ABATEMENT OF PUBLIC NUISANCE

Law reviews: For article, "Using Local Police Powers to Protect the Environment", see 24 Colo. Law. 1063 (1995).