2021 Leg Session, Ari Armstrong, Criminal Justice, Exclusives, Legal

Armstrong: The Goldilocks approach to criminal justice

Call it the Goldilocks approach to criminal justice. Government should neither treat all criminals extremely and unforgivingly harshly, regardless of the nature of the crime; nor should it coddle criminals to the detriment of their victims. Rather, government should pursue a “just right” approach that protects the innocent while giving most criminal offenders an opportunity to get their lives together.

I see the Goldilocks approach as common-sense. However, it often puts me at odds both with “law and order” conservatives, who often want ever harsher treatment of criminals and practically unlimited power for police and prosecutors, and with utopian leftists, who often see criminals as victims of circumstance who will reform if only we offer them forgiveness and aid. An Oingo Boingo song satirizes this latter view: “You really can’t blame him; society made him.” We do not have to discount the formative role of circumstances to recognize the importance of people’s choices.

In short, one approach is too harsh, one too lenient, one just right. And I worry that Colorado politicians do not always work together to strike the right balance. Just now I’m thinking of two legislative bills in particular, one on so-called felony murder (Senate Bill 124), and one on limiting arrests (Senate Bill 62).

Senate Bill 124

I regard “felony murder” in many cases as a form of judicial fraud. The relevant statute basically says that someone can “murder” a person without actually wanting, planning, or doing the killing. Which is ridiculous. This statute can result in unjust outcomes, such as sentencing a young foolish getaway driver as harshly as someone who stabs people to death. The Denver Post reviews some examples. So I definitely want to see reform here. At the same time, I want to keep life sentences on the table for especially heinous crimes even that don’t involve premeditated murder.

Colorado’s “felony murder” provision is included under the first-degree murder statute, 18-3-102. It says someone can be convicted of first-degree murder, the worst crime, in these circumstances: “Acting either alone or with one or more persons, he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault [etc.], and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone.”

Rather than pretend that someone can commit a murder without actually killing anyone, Colorado statutes should accurately describe and define various crimes and account for severity in sentencing. I don’t think the existing statute does this, but neither am I convinced the reform bill takes the right approach.

Michael Allen, the district attorney for El Paso and Teller Counties, takes issue with the reform bill. He points to a crime that I agree warrants life in prison. Robert Baillie raped and killed Janet Conrad in 1976 and finally, in 2014, was sentenced to life in prison for this. The Gazette reviews the horrific details: “Conrad’s body was found in a linen closet on the 10th floor of [a] hotel, naked from the waist down with her hands bound by a vacuum cleaner cord and her mouth gagged with a washcloth.”

Allen states, “Due to the passage of time the only charge Baillie faced at trial was Felony Murder, a class 1 felony.” I don’t know exactly the thinking of the DA here, but presumably an issue is whether this brutal killing was premeditated. I agree that, even if Baillie didn’t commit the crime with the prior intention of killing the victim, he should be held fully responsible for her death and spend the rest of his life in prison. I have no problem with the part of the first-degree murder statute covering a death due to “universal malice manifesting extreme indifference to the value of human life.”

Yet, at least in this particular statement, Allen presumes that the only way to address such crimes is through the existing felony murder statute. To me, the obvious answer is to dump that section of statute, which also is used to overpunish less-culpable offenders, and ensure that the statutes account for the heinousness of a crime, even if a murder is not premeditated. Politicians and officials should work across party lines to support sensible reforms.

Senate Bill 62

Regarding SB 62, former DA George Brauchler has convinced me that this particular measure goes way too far in letting criminals who harm people or their property off the hook. At the same time, I am sympathetic with the aim of limiting arrests to cases where the arrest actually increases public safety, rather than needlessly damages the alleged offender’s life. I don’t know how to draft a Goldilocks policy here, but I refuse to believe that it’s impossible.

What I’d like to see from “law and order” types such as Allen and Brauchler is a greater effort to recognize and remedy existing flaws in the legal system that result in overly harsh treatment of many suspects and criminals. And I’d like to see a greater effort among reformers to account for the harm to victims. In general, I’d like to see politicians from both parties (I think Republicans tend to be the bigger offenders here) refrain from using the issue of criminal justice as a political bludgeon.

And, by the way, people like Goldilocks should remember not only that breaking into people’s houses is a serious crime but that Colorado is a “make my day” state in which homeowners retain the right to shoot intruders. We can maintain the right to self-defense even as we seek sensible criminal justice reforms.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism.  He can be reached at ari at ariarmstrong dot com.

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