The Denver Post

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

- 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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