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