Colorado § 17-22.5-104 - Parole - regulations.

§ 17-22.5-104. Parole - regulations.

(1) Any inmate in the custody of the department may be allowed to go on parole in accordance with section 17-22.5-403, subject to the provisions and conditions contained in this article and article 2 of this title.

(2) (a) No inmate imprisoned under a life sentence for a crime committed before July 1, 1977, shall be paroled until such inmate has served at least ten calendar years, and no application for parole shall be made or considered during such period of ten years.

(b) No inmate imprisoned under a life sentence for a crime committed on or after July 1, 1977, but before July 1, 1985, shall be paroled until such inmate has served at least twenty calendar years, and no application for parole shall be made or considered during such period of twenty years.

(c) (I) Except as described in section 18-1.3-401 (4)(c), C.R.S., and in subparagraphs (IV) and (V) of paragraph (d) of this subsection (2), no inmate imprisoned under a life sentence for a crime committed on or after July 1, 1985, shall be paroled until such inmate has served at least forty calendar years, and no application for parole shall be made or considered during such period of forty years.

(II) Subparagraph (I) of this paragraph (c) does not apply to an inmate sentenced pursuant to section 16-13-101 (2), C.R.S., as it existed prior to July 1, 1993, for any crime committed on or after July 1, 1985, and the inmate shall be eligible for parole after the inmate has served forty calendar years less any time authorized pursuant to section 17-22.5-405.

(d) (I) No inmate imprisoned under a life sentence for a class 1 felony committed on or after July 1, 1990, shall be eligible for parole.

(II) This paragraph (d) shall not apply to any inmate sentenced pursuant to section 18-1.3-801 (2), C.R.S., for any crime committed on or after July 1, 1993, and any such inmate shall be eligible for parole in accordance with section 17-22.5-403.

(III) No inmate imprisoned under a life sentence pursuant to section 18-1.3-801 (2.5), C.R.S., and no inmate imprisoned under a life sentence pursuant to section 18-1.3-801 (1), C.R.S., on and after July 1, 1994, for a crime committed on and after that date, shall be paroled until such inmate has served at least forty calendar years, and no application for parole shall be made or considered during such period of forty years.

(IV) Notwithstanding subsection (2)(d)(I) of this section, an inmate imprisoned to a life sentence for a class 1 felony committed before July 1, 1990, or on or after July 1, 2006, who was convicted as an adult following direct filing of an information or indictment in the district court pursuant to section 19-2.5-801 or transfer of proceedings to the district court pursuant to section 19-2.5-802, may be eligible for parole after the inmate has served at least forty years, less any earned time granted pursuant to section 17-22.5-405. An application for parole may not be made or considered during this period.

(V) Notwithstanding subsection (2)(d)(I) of this section, an inmate sentenced to life imprisonment for a class 1 felony committed on or after July 1, 1990, and before July 1, 2006, who was convicted as an adult following direct filing of an information or indictment in the district court pursuant to section 19-2.5-801, or transfer of proceedings to the district court pursuant to section 19-2.5-802, or pursuant to either of these sections as they existed prior to their repeal and reenactment, with amendments, by House Bill 96-1005, may be eligible for parole after serving forty years, less any earned time granted pursuant to section 17-22.5-405.

(3) Repealed.

Source: L. 84: Entire article R&RE, p. 518, § 1, effective July 1. L. 85: (2)(b) amended and (2)(c) added, p. 648, § 3, effective July 1; (2)(b) amended and (2)(c) added, p. 657, § 5, effective July 1. L. 87: (3) added, p. 654, § 9, effective July 1. L. 90: (1) amended, p. 954, § 24, effective July 1; (2)(d) added, p. 928, § 3, effective July 1. L. 91: (2)(d) amended, p. 404, § 4, effective June 6. L. 93: (1) and (2) amended, p. 1977, § 3, effective July 1. L. 94: (2)(d)(III) amended, p. 1472, § 2, effective May 31. L. 2002: (2)(d)(II) and (2)(d)(III) amended, p. 1501, § 162, effective October 1. L. 2006: (2)(d)(IV) added, p. 1052, § 3, effective May 25. L. 2015: (2)(c) and (2)(d)(I) amended, (HB 15-1203), ch. 154, p. 461, § 1, effective August 5. L. 2016: (2)(c)(I) and (2)(d)(IV) amended and (2)(d)(V) added, (SB 16-181), ch. 353, p. 1449, § 2, effective June 10. L. 2021: (2)(d)(IV) and (2)(d)(V) amended, (SB 21-059), ch. 136, p. 716, § 33, effective October 1.

Editor's note: (1) Subsection (3)(b) provided for the repeal of subsection (3), effective July 1, 1990. (See L. 87, p. 654.)

(2) Section 2 of chapter 154 (HB 15-1203), Session Laws of Colorado 2015, provides that the act amending subsections (2)(c) and (2)(d)(I) applies to an inmate sentenced pursuant to section 16-13-101 (2), Colorado Revised Statutes, as it existed prior to July 1, 1993, for any crime committed on or after July 1, 1985.

Cross references: (1) For other provisions concerning parole regulations, see § 17-2-207.

(2) For the legislative declaration contained in the 2002 act amending subsections (2)(d)(II) and (2)(d)(III), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2006 act enacting subsection (2)(d)(IV), see section 1 of chapter 228, Session Laws of Colorado 2006.

ANNOTATION

Law reviews. For article, "Life after Miller and Montgomery: Colorado's (Revised) Solution for Unconstitutional Juvenile Sentences", see 45 Colo. Law. 31 (Mar. 2016).

The U.S. supreme court concluded in Miller v. Alabama, 567 U.S. 46 (2012), that the eighth amendment prohibits a mandatory life sentence without the possibility of parole for juvenile offenders. People v. Banks, 2012 COA 157, 412 P.3d 417, aff'd in part, rev'd in part on other grounds sub nom. People v. Tate, 2015 CO 42, 352 P.3d 959.

Because defendant was a minor when the trial court mandatorily sentenced him to life imprisonment without the possibility of parole, and because defendant's case was still pending on direct review when the U.S. supreme court decided Miller, the no-parole provisions contained in subsection (2)(d)(I) of this section and § 18-1.3-401 (4)(a) are unconstitutional as applied to defendant in that they deny defendant the opportunity of parole. People v. Banks, 2012 COA 157, 412 P.3d 417, aff'd in part, rev'd in part on other grounds sub nom. People v. Tate, 2015 CO 42, 352 P.3d 959.

The U.S. supreme court's decision in Miller v. Alabama renders a mandatory life without the possibility of parole sentence for juveniles convicted between 1990 and 2006 unconstitutional. For cases on direct appeal, the remedy for those sentenced to mandatory life without parole is a remand to determine through an individual consideration of the defendant's youth and attendant circumstances whether a sentence of life without parole is appropriate. If the sentencing court on remand determines that life without parole is not warranted, then the appropriate sentence, absent legislative action, is life in prison with the possibility of parole after forty years. People v. Tate, 2015 CO 42, 352 P.3d 959; People v. Ellis, 2015 COA 108, 425 P.3d 1140.

The new rule announced in Miller is procedural rather than substantive in nature; therefore it does not apply retroactively to cases on collateral review of final judgments. People v. Tate, 2015 CO 42, 352 P.3d 959; People v. Vigil, 2015 CO 43, 372 P.3d 1045.

Prisoners who received life sentences for crimes committed before July 1, 1977, are not entitled to parole consideration until ten calendar years have passed from the date the sentence was imposed. Derrick v. Colo. Bd. of Parole, 747 P.2d 696 (Colo. App. 1987).

Prisoners who received life sentences for crimes committed on or after July 1, 1977, but before July 1, 1985, are not entitled to parole consideration until 20 calendar years have passed from the date the sentence was imposed. People v. Payseno, 954 P.2d 631 (Colo. App. 1997).

Since § 16-11-802 (1)(b) (now § 18-1.3-1302 (1)(b)) has a later effective date, was later enacted, and operates in an ameliorative manner for criminal defendants, it controls, and that portion of § 18-1-105 (4) (now § 18-1.3-401 (4)) which provides for no possibility of parole for persons sentenced to life imprisonment following conviction for class 1 felony offenses occurring during the period from July 1, 1990, until September 19, 1991, is abrogated by this later enactment. Thus, § 16-11-103 (1)(b) (now § 18-1.3-1201 (1)(b)), as amended by House Bill 91S-1001, controls parole eligibility for convictions and sentences to life imprisonment based on class 1 felony offenses occurring on or after September 20, 1991, and § 16-11-802 (1)(b) (now § 18-1.3-1302 (1)(b)) controls parole eligibility for class 1 felony offenses occurring during the period from July 1, 1990 until September 19, 1991. People v. District Court, 834 P.2d 236 (Colo. 1992).

Prisoner's parole eligibility date is determined by the date on which the prisoner's felony was committed rather than the date of adjudication as an habitual offender. Collins v. Gunter, 834 P.2d 1283 (Colo. 1992).

This section does not mandate that a prisoner be deemed to have been paroled ten years after the date of sentencing for a crime committed prior to July 1, 1979, if a parole hearing is not held on that date. For crimes committed prior to July 1, 1979, parole of prisoners from correctional institutions is a matter within the sole discretion of the parole board. Martinez v. Furlong, 893 P.2d 130 (Colo. 1995).

Under the plain meaning of this section and § 16-11-306, prisoners are entitled to credit against their life sentences for time spent in presentence confinement. Inmate, therefore, was entitled to a parole eligibility date that was calculated to include 329 days of presentence confinement credit. Fields v. Suthers, 984 P.2d 1167 (Colo. 1999).