Jerry Kopel

Diving into suspicious business records and making up for errors by the prosecution are part of the new criminal laws of 2003.

Every year, the Colorado District Attorneys Council provides bills to the legislature on substantive criminal law and procedure. The chairs of House and Senate Judiciary committees usually sponsor the bills, and have done so for many decades. The bill language is often used to overturn court decisions that law enforcement is not happy with.

One section of HB 1236 takes away a court's sentencing discretion when there are several statutes covering the same crime. The previous law stated "Nothing in this section shall preclude the court from imposing a greater sentence set forth in any other statute. In other words, the judge had the "discretion" to impose or not impose a greater penalty.

That has been changed to: "If a defendant who is subject to the provisions of this section is subject to a greater sentence pursuant to the provisions of another statute, the court shall impose sentence pursuant to that statute. The prosecution shall not be forced to elect under which statute to proceed."

The section relates to heavier sentences for certain drug crimes. No one is arguing against the need for imprisonment. But this is "lazy law".

Why? Because district attorneys are supposed to prosecute under a statute that fits the facts, which means he or she has to actually read the criminal statutes. Suppose defendant agrees to a plea bargain under a similar statute with a lesser penalty. Does the court have to ignore the "bargain" and sentence the defendant under the greater penalty?

I'm not sure what will happen if the court finds that a greater penalty statute exists only AFTER imposing sentence. Does he or she bring the defendant back before the court and impose the greater sentence? I have no idea. But this change in law must have come about because some prosecutor didn't do his or her homework.

SB 147 strengthens Colorado's criminal procedures in 18-1-606. I happen to like what they did regarding business entities, after all the fraud and corruption written about in the press.

From 1971 until now, other than where humans were charged, this criminal law section dealt only with corporations. Before 1971, it dealt with all types of business groups, but for some reason the 1971 statute narrowed it to corporations. Now this section will apply to crimes committed by any business entity, such as a limited liability company, a sole proprietorship, and of course, a corporation.

There is one puzzling concern. The section following 18-1-606 discusses criminal liability of an individual for corporate conduct. Why wasn't "corporation" changed to "business entity" ?

In another new section, business entities of all types must produce records under order of court that might well lead to criminal prosecutions. If they don't, they face prosecution under a separate law. Of course, non-human business entities never serve time in prison. But they are liable to very large fines.

There is an exception for records privileged under another statute that covers relationships such as husband-wife, or physician-patient.

Sponsors of the two new laws, which this column discussed earlier this year, are Sen. Jim Dyer (R) and Rep. Lola Hefley (R).

(Jerry Kopel served 22 years in the Colorado House.)

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