Several weeks ago we posted an article on the blog detailing a troubling situation in the State of Colorado. That is: any charge of Second Degree Assault is automatically met with a mandatory prison sentence (read Part I of this post HERE).
In some cases, a mandatory prison sentence is warranted. For instance, if a police officer or prison guard is seriously injured and there was a clear intent on the part of the perpetrator to do bodily harm.
However, as is often the case, the District Attorney will leverage the threat of mandatory prison in order to coerce the person to accept a less-than-satisfactory plea deal. For example, many jurisdictions will charge a “hands on the throat” as a Second Degree Assault because they will classify hands as a “deadly weapon”. Do you think the Legislature intended for an unarmed person with no martial arts training to be determined to have a deadly weapon because he has hands? Once Second Degree Assault with a deadly weapon is charged, it activates the mandatory prison sentence penalty.
(If you are facing Second Degree Assault charges, be sure to educate yourself and prepare yourself as best as you can. Don’t hesitate to call our office at (720) 999-9506 to set up a free consultation).
Example #2: An Accidental Injury has Serious Repercussions
(Example #1 can be found in Part I of this blog article series).
A woman in her early twenties with a history of mental health issues broke up with her boyfriend several years ago. This woman had no criminal history, but she had harmed herself in years past, including cutting herself.
Her ex-boyfriend knew this. After they separated, they continued to exchange text messages and phone calls and considered getting back together. She still had a key to the apartment and was on the lease, so one day she let herself in only to find the ex-boyfriend with another woman.
In an emotional moment, the young woman picked up a knife and threatened to hurt herself. Knowing her history, the boyfriend jumped in to intervene, and when the girl pulled back, she accidentally gave him a superficial cut with the knife.
Although the boyfriend wrote multiple letters to the DA, saying things like, “I’ve had cat scratches worse than this, I want the charges dropped because it was an accident,” the District Attorney persisted in pursuing Second Degree Assault with a deadly weapon charges, which would have resulted in a mandatory prison sentence for this young woman.
Of course, the young woman didn’t want to go to prison, so she accepted a terrible offer from the DA. She understood she had a strong case, but there is always a chance of a conviction. Even though the Judge, probation, the D.A., her family and I all knew prison wasn’t appropriate and, with her mental health issues, she likely would not have survived, she would have received a prison sentence if convicted.
Now, she will have trouble for many years getting a job, taking out a loan and generally be forced to jump through more hoops than she would have otherwise because of the disposition she felt she was forced to take. If sentencing was left to the Judge, she would have gone to trial because she would have known that, even if convicted, she likely wouldn’t have necessarily gone to prison. The Judge would have had the discretion to impose the appropriate sentence.
Attempting to Remedy the Situation
The Office of Barre Sakol is currently working with an organization to reassess this law and hopefully make changes so that the penalty for Second Degree Assault better fits the individual crime committed. While it will be difficult to address attacks on law enforcement because of public opinion, changes are being proposed to other Second Degree Assault charges.
If you are facing Second Degree charges, it is very important that you fully understand the situation and the possible outcomes that could come to pass.