If you have been convicted of a crime in Colorado, you can apply to commute your sentence. If successful, this would modify the sentence you received with your conviction. However, commuting a criminal sentence in Colorado is rare. Many people are not even eligible for this type of relief.
To help you understand how you can apply to commute your sentence, our Denver Colorado criminal defense attorneys will discuss the following.
- 1. What is a commuted sentence in Colorado?
- 2. How is a pardon different?
- 3. Does a commuted sentence expunge my criminal record?
- 4. Who is eligible for a commuted sentence?
- 5. How do I apply?
- 6. Can I reapply after I get denied?
- 7. How often are sentences commuted?
If you have been convicted of a crime in Colorado, you can apply to commute your sentence.
1. What is a commuted sentence in Colorado?
A commuted sentence shortens the amount of time served in jail. A commutation modifies the criminal penalties after it is issued to reduce the amount of time an inmate has to serve.
If you are convicted of a crime in Colorado, the next step is a sentencing hearing. At this point, the judge will determine what the punishment will be for your conviction. Once the judge decides, you will have to serve that amount of time in prison.
Commuting your sentence means applying to reduce the amount of time in a correctional facility after the judge’s sentencing ruling.
Example: John is arrested after beating his neighbor with a golf club. John gets charged and convicted of criminal extortion under Colorado Revised Statutes 18-3-207. The judge hands down a ruling of 5 years in prison.
After 2 years in jail, John is eligible to have his sentence commuted. John can apply for a commutation to be released before the end of serving his time in jail.
Who Has the Power to Commute a Sentence in Colorado?
The power to commute a criminal sentence is established in the Colorado Constitution.1 The provision of the Colorado Constitution that provides this power gives it to the state’s governor. The governor, however, needs to have the Colorado Legislature approve of his or her decision to commute a sentence.
This power to commute a sentence is not absolute. The governor cannot commute certain types of criminal convictions, including a conviction for:
- Treason (a class 1 felony in Colorado), or
- A violent crime against a police officer.2
The governor does not wield this power on his or her own. The Executive Clemency Advisory Board helps the governor make clemency decisions. This board receives any applications to commute a sentence and screens them for the governor. The Board then makes advisory recommendations.
The Board has three members, one each to represent:
- The Department of Corrections,
- The Department of Public Safety, and
- Victims of crime.3
How can I benefit from having my sentence commuted in Colorado?
You can benefit from having your sentence commuted by reducing the amount of time spent in a correctional facility.
If your application to have your incarceration commuted is successful, you stand to get out of jail quicker. This means you can resume your life quicker than you would have if you had not applied for this type of relief.
Example: Anthony is in jail serving a 6-year prison term for vehicular homicide while driving under the influence of alcohol. After 2 years, Anthony applies to have his incarceration term reduced. Anthony is surprised to learn that his application was granted, and he is released after spending less than 3 years. As a result of applying to have his jail term reduced, Anthony was able to return to his life with his family almost 3 years earlier than expected.
2. How is a pardon different?
A pardon and a commuted sentence are legally different. These terms can be confused but they mean different things.
A governor’s pardon in Colorado can only happen after the criminal sentence has been completed. It is an official apology and public forgiveness for a crime that can only be granted after you have finished serving time in jail.
A commuted sentence modifies a criminal sentence that is currently ongoing.4
Example: John has served 2 years in his 5 year stretch in jail for beating his neighbor with a golf club. He can apply to reduce his time in jail because he is still serving time. John cannot apply for a pardon because his sentence has not been completed.
10 years later, John has completed his stint for second-degree assault, which is a felony in Colorado. He can apply for a pardon, but cannot apply for a commutation of his sentence because he already served his time in jail.
For more insight into the parole process, please see our articles on application interviews with the Colorado State Board of Parole and recission hearings in Colorado parole cases.
3. Does a commuted sentence expunge my criminal record?
When you get convicted of a crime, the conviction will be noted on your criminal record. This blemish on your criminal record can impact your life in a variety of ways. It can:
- Make it difficult to get a job,
- Prevent you from renting an apartment, and even
- Impact your right to own a firearm.
Wiping a conviction off of your criminal record is called expungement.
Unfortunately, expunging your criminal record in Colorado and commuting a criminal sentence are different things. If you are successful in getting your criminal punishment commuted, it will not expunge your criminal record. You will still have the conviction on your criminal history. It will still appear in background checks.
For a discussion of the related concept of sealing records, please see our page on how to seal criminal records in Colorado.
4. Who is eligible for a commuted sentence?
Not everyone who has been convicted of a crime is eligible to have their sentence commuted. There are both positive requirements and negative requirements to be eligible for a commuted sentence.
Positive Eligibility Requirements for a Commuted Sentence in Colorado
Some things make you eligible to have your criminal penalties commuted in Colorado. These are positive eligibility requirements. Positive eligibility requirements are:
- Currently in confinement; and
- Served a portion of the sentence.
To be eligible to have your incarceration term reduced, you must be in jail. Once you are released from prison, you cannot apply for this type of post-conviction relief.
Additionally, to be eligible for a commuted sentence, you need to have served at least a portion of your jail time. The minimum amount of time required depends on the criminal sentence:
- For life sentences, you need to have served either 10 full years in jail, or 1/3rd of the time before you are eligible for parole;
- For consecutive life terms, you need to have served 10 full years;
- For all other criminal sentences in Colorado, you need to have served either 1/3rd of the time, or ten full years.
Negative Eligibility Requirements for a Commuted Sentence in Colorado
Even if you satisfy all of the positive requirements, several things can make you ineligible for a commuted sentence. These negative eligibility factors include the following.
- The criminal conviction cannot be for treason or assaulting a peace officer.
- The prison term was not punishment for a crime that was committed while you were on probation.
- You cannot have a pending criminal charge at the time of your application for a commuted sentence.
- You cannot have an appeal pending for the conviction related to the application.
- There cannot be a judicial remedy available for the punishment you want to be commuted.
- You cannot be participating in an intensive supervision program.
- You cannot be on parole, or be within 15 months of eligibility for parole.
- You have not violated parole by being charged with or convicted of a new crime.
- You cannot be housed in Administrative Segregation.
- You have not been convicted for any Class I or II violation of the Code of Penal Discipline in the past 2 years.
The presence of any of these negative requirements can make you ineligible to receive a commuted sentence in Colorado.
What does the board consider in my request for a commuted sentence?
The board considers a number of factors when reviewing an application for a commuted sentence, including the following.
- Exemplary rehabilitation and institutional behavior.
- Offenders who may be suffering from a catastrophic or terminal mental, medical, or physical condition.
- Acts of heroism by inmates who prevent risk or injury to staff, citizens, or other inmates.
- Victim impact.
- Sentencing disparities or inequities within the Colorado criminal justice system.
- Any other relevant factor.5
5. How do I apply?
If you are eligible to have your prison term reduced, then you can pursue one by completing the application process. This process frequently takes more than 6 months to complete. Applications that have been pending for more than 1 year are terminated.
The process to apply for a commuted sentence involves
- Obtain an Executive Clemency Application
- Complete the Executive Clemency Application
- Confinement Facility Initial Application Review
- The Executive Clemency Advisory Board Reviews the Application
- Colorado Governor Decides Commuted Sentence Application
Obtain an Executive Clemency Application
The first thing you will need to do if you want to apply to have your jail term reduced is to obtain an Executive Clemency Application.6 This application form is also used for Executive Pardons.
Those who are applying for a commuted sentence are required to obtain and fill out the Executive Clemency Application with the help of their case manager. This case manager is there to explain the application and clemency process, the criteria that the Executive Clemency Advisory Board uses, and to help complete and submit the application.
Complete the Executive Clemency Application
With the help of your case manager and your lawyer, you can then fill out the Executive Clemency Application. This includes providing personal details and information about
- Your conviction;
- Your confinement; and
- Whether you want your right to own firearms restored.
In addition to the application form, you will also need to include the following documents:
- A personal letter to the governor about why you should have your term of incarceration reduced;
- The results from your Level of Service Inventory (LSI) assessment;
- The results from your Colorado Actuarial Risk Assessment Scale (CARAS) test;
- An Admission Data Summary (ADS);
- Current psychological, psychiatric, and medical reports;
- Reports of any disciplinary actions and sanctions during your confinement;
- Investigation and offense reports from before your sentencing;
- Relevant law enforcement communications that concern your case; and
- A certificate of your good character.7
The Initial Application Review
Once you have completed the Executive Clemency Application, the first stage of review is conducted by your confinement facility. This level of review is to make sure you are eligible for a reduced jail term and to see that all of the parts of the application are included and finished.
If you are eligible for a commuted sentence and the application is complete, the facility forwards your application on to the Executive Clemency Advisory Board.
The Executive Clemency Advisory Board Reviews the Application
The Executive Clemency Advisory Board (ECAB) is a group of seven volunteers that the governor of Colorado appoints. Their job is to review Executive Clemency Applications and make a recommendation to the governor.
When the ECAB receives your application for a commuted sentence, they will send copies of the application to:
- The judge who issued the sentencing;
- The prosecutor in the district where you were convicted; and
- Victims associated with the crime.
This is because Colorado law requires these three parties to have an input in whether you should have your prison term reduced.8
The ECAB then decides on whether they think you should receive a commuted sentence. They will pass their recommendation on to the governor of Colorado.
The Governor Decides Whether to Commute Your Sentence
Finally, the governor of Colorado decides whether to grant your application and commute your prison term. The governor can either:
- Grant your application and alter the punishment that you received;
- Deny your application and let the prison term stand; or
- Table your application and wait.
In any case, you will be notified by the governor’s Clemency Coordinator of the governor’s final decision.
6. Can I reapply after I get denied?
If the governor denies your application for a commuted sentence, you can reapply later. However, four years need to have passed between receiving the official notification of denial and the new application for a commuted sentence.
7. How often are sentences commuted?
Getting a sentence commuted in this state is rare. The governor typically stays away from decisions that judges and the rest of the Colorado judiciary make. Asking the executive branch to cancel the remainder of the criminal sentencing is something that the governor is typically not willing to do.
The governor may also decide to commute multiple sentences for policy reasons. For example, a number of inmates are imprisoned on drug charges related to marijuana in Colorado, including possession of drug paraphernalia, or trafficking of a controlled substance. Given our state’s recent legalization of marijuana for medical and recreational purposes, the governor may decide to commute some individuals convicted of marijuana crimes to reduce prison crowding.
However, even though it is rare, requesting the governor to reduce your prison term can still be worth pursuing. This is especially true considering the fact that there is no law for which sentences can be commuted, and which cannot. Instead, the Colorado governor is expected to use his or her authority to make a decision. This can help you if your prison term sentencing was within the recommended guidelines but unfair.
Legal References
- Colorado Constitution, Article IV, Section 7 (“The governor shall have the power to grant reprieves, commutations and pardons after conviction for all offenses except treason, and except in case of impeachment, subject to such regulations as may be prescribed by law relative to the manner of applying for pardons, but he shall in every case where he may exercise this power, send to the general assembly at its first session thereafter, a transcript of the petition, all proceedings, and reasons for his action.”)
- Same.
- Colorado Executive Order B 2012 003 (“2. Membership, C. The Board members shall include but are not limited to: a. The Executive Director of the Department of Corrections; b. The Executive Director of the Department of Public Safety; c. At least one member who is a crime victim or represents victims of crime.”)
- 16-17-102 C.R.S. (“After a conviction, all applications for commutation of sentence or pardon for crimes committed shall be accompanied by a certificate of the respective superintendent of the correctional facility, showing the conduct of an applicant during his or her confinement in the correctional facility, together with such evidences of former good character as the applicant may be able to produce… Good character previous to conviction, good conduct during confinement in the correctional facility, the statements of the sentencing judge and the district attorneys, if any, and any other material concerning the merits of the application shall be given such weight as to the governor may seem just and proper, in view of the circumstances of each particular case, a due regard being had to the reformation of the accused. The governor shall have sole discretion in evaluating said comments and in soliciting other comments he or she deems appropriate.”)
- Executive Order B 2012 003, 4. Scope of Authority.
- See State of Colorado Executive Clemency Application.
- 16-17-102 C.R.S., see footnote 4 above.
- 16-17-202 C.R.S. (“Before the governor approves such application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his or her action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than fourteen days, to comment on such applications. The requirements of this section shall be deemed to have been met if the persons to whom the application is submitted for comment do not comment within fourteen days after their receipt of the application or within such other reasonable time in excess of fourteen days as specified by the governor, or if the sentencing judge or prosecuting attorney cannot be located, are incapacitated, or are otherwise unavailable for comment despite the good-faith efforts of the governor to obtain their comments.”)