To keep ju­ve­niles be­hind bars for life, Brauch­ler aban­dons rule of law

The Denver Post - - PERSPECTIVE - By Sean Con­nelly

Last Tues­day, I had the honor of rep­re­sent­ing a con­victed felony mur­derer be­fore the Colorado Supreme Court. He is guilty as charged, and an in­no­cent man is dead. But there is so much more to the story.

In 1995, Cur­tis Brooks, a 15-year-old new to the Den­ver area and left home­less by a drug-ad­dicted mother, did the worst thing of his life; he did not in­tend to and did not per­son­ally kill any­one, but he joined a rob­bery that led to a “felony mur­der” con­vic­tion. Sen­tenced to life with­out pa­role, our sys­tem un­con­sti­tu­tion­ally told this teenager he would die in prison.

Cur­tis re­fused to give up hope. He grew into a model adult who has learned for­eign lan­guages and is tak­ing college cour­ses. He has earned the sup­port of ev­ery­one who has got­ten to know him in­clud­ing: a ju­ror who con­victed him, the in­ves­ti­gat­ing de­tec­tive, and the orig­i­nal sen­tenc­ing judge. His lead­ing ad­vo­cate is his for­mer ele­men­tary school prin­ci­pal who now is a Mary­land state sen­a­tor.

Un­der a 2016 Colorado law passed after the U.S. Supreme Court in­val­i­dated ju­ve­nile manda­tory life with­out pa­role sen­tences, ju­ve­nile of­fend­ers like Cur­tis now are el­i­gi­ble to be sen- tenced a max­i­mum of 30 to 50 years’ im­pris­on­ment if there are ex­tra­or­di­nary mit­i­gat­ing cir­cum­stances. This law, harsher than many other states’ ju­ve­nile sen­tenc­ing laws, is noth­ing spe­cial; it sim­ply cures Colorado’s prior un­con­sti­tu­tional sen­tenc­ing of ju­ve­niles.

Ara­pa­hoe County Dis­trict At­tor­ney Ge­orge Brauch­ler, de­fy­ing the Colorado Gen­eral Assem­bly, is strug­gling to in­val­i­date this cu­ra­tive Colorado law as “spe­cial” leg­is­la­tion un­der a rarely-ap­plied pro­vi­sion of our 1876 state con­sti­tu­tion. That mis­guided at­tack is ably re­futed by briefs filed by le­gal schol­ars ex­pert in that dusty old pro­vi­sion and by Den­ver Dis­trict At­tor­ney Beth Mccann and her se­nior chief deputy Bob Rus­sel, who coura­geously have bro­ken ranks with other pros­e­cu­tors.

Where is At­tor­ney Gen­eral Cyn­thia Coff­man, whose of­fice must de­fend laws en­acted by our leg­is­la­ture? She’s of­fi­cially sit­ting this one out, even though the Brauch­ler at­tack would have per­ni­cious ef­fects on fu­ture Colorado laws that must be de­fended by the of­fice that she holds and that Brauch­ler will seek in the Novem­ber elec­tion.

This sorry episode is rem­i­nis­cent of the Trump Jus­tice De­part­ment. At­tor­ney Gen­eral Jeff Ses­sions, hop­ing to pla­cate a boss an­gered by a spe­cial coun­sel in­ves­ti­ga­tion, is at­tack­ing rather than en­forc­ing fed­eral law: the Af­ford­able Care Act (aka “Oba­macare”). Some loved that law, oth­ers hated it, but the cur­rent Congress kept it alive with a weak­ened in­di­vid­ual man­date. Un­able to re­peal and re­place it de­spite a Repub­li­can-con­trolled Congress, the Trump Ad­min­is­tra­tion wants fed­eral courts to strike down the leg­isla­tive com­pro­mise.

Like their Trump Ad­min­is­tra­tion coun­ter­parts, the Brauch­ler/coff­man team el­e­vated their pre­ferred poli­cies over the rule of law. Rather than per­form the ex­ec­u­tive du­ties as­signed to their of­fices, those two of­fi­cials de­cided they knew bet­ter than Colorado’s Gen­eral Assem­bly.

A pre-trump prece­dent for the ex­ec­u­tive branch at­tack­ing rather than de­fend­ing en­acted laws is the Obama Ad­min­is­tra­tion’s con­sti­tu­tional chal­lenge to the so-called De­fense of Mar­riage Act. That chal­lenge en­gen­dered con­ser­va­tive out­cry — how dare an at­tor­ney gen­eral not de­fend a law! — and even thought­ful ob­servers ac­knowl­edged the com­pet­ing con­cerns. But there, un­like here, fun­da­men­tal con­sti­tu­tional rights were at stake.

The pros­e­cu­tion at­tack on Colorado ju­ve­nile sen­tenc­ing law and the Jus­tice De­part­ment at­tack on fed­eral health care law are un­jus­ti­fi­able be­cause they raise no tran­scen­dent prin­ci­ples of fun­da­men­tal con­sti­tu­tional law. Rather, they raise ab­struse arguments for over­turn­ing a law that ex­ec­u­tive branch of­fi­cials wish had not been en­acted.

Cur­tis Brooks is in his third decade of serv­ing an un­con­sti­tu­tional sen­tence while pros­e­cu­tors at­tack a cu­ra­tive Colorado law. Oth­er­wise, he al­ready would have been re­sen­tenced by re­cently-pro­moted judge-now-jus­tice Car­los Samour.

The Colorado Supreme Court should up­hold the Colorado ju­ve­nile sen­tenc­ing re­forms. And Colorado’s chief ex­ec­u­tive, Gov. John Hick­en­looper, has un­der con­sid­er­a­tion a well-de­served clemency pe­ti­tion that could re­sult in Cur­tis’s re­lease. While jus­tice is be­ing de­layed, it should not ul­ti­mately be de­nied to Cur­tis.

Even so, our sys­tem is harmed by ex­ec­u­tive branch of­fi­cials who do not en­force our laws. Those who oc­cupy or seek the of­fice of at­tor­ney gen­eral should put the rule of law above their own policy pref­er­ences.

Sean Con­nelly, a for­mer U.S. Jus­tice De­part­ment at­tor­ney and judge on the Colorado Court of Ap­peals, is in pri­vate prac­tice in Den­ver.

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