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The Issue of Mandatory Prison for Second Degree Assault – Part I

In the State of Colorado, Second Degree Assault under certain circumstances has a penalty of mandatory prison attached to it. In general, Second Degree Assault includes assault on a police officer, fireman or prison guard and assault with a deadly weapon (there are several other nuances to this law.

Mandatory sentences were very big in the past when political candidates relied on a “law and order” agenda to get elected. Now that our prisons are filled beyond capacity, our budgets are strained as a result of the cost of housing so many prisoners, and as a result of seeing the inequity these mandatory sentences can cause, many States, including Colorado, are reconsidering these mandatory sentences.

There is no cookie-cutter “solution” or repercussion that could possibly address the incredible variation to each situation; every case is very different. However, mandatory sentence statutes treat everyone the same.

In Colorado, we’re seeing a current trend when it comes to Second Degree Assault. Prosecutors frequently “stretch” the facts to charge Second Degree Assault. They then use the threat of a mandatory prison sentence to coerce a person to accept an unfavorable plea bargain. If a person feels he is unjustly charged, he/she can exercise his/her right to go to trial. However, if the person is told that, regardless of the strength of his/her case, regardless of the fact that he/she has no prior criminal history, despite the fact that his/her conduct is not particularly egregious, etc., he/she can go to prison if he/she elects to go to trial and is convicted, there is substantial pressure to accept an offer.

Not every situation is the same, and not every situation should face the same penalty.

Example #1: Pushing a Police Officer Leads to Prison Time

Several years ago an African American man who ended up being a client of ours spent a few hours at his local sports bar, which happened to be in a very conservative part of town. This man knew the bartender. He was also the only black person in the bar.

That night, the bartender was having some trouble with another patron at the bar that was causing problems. She called the police, but before they had time to respond, our client stepped in to calm down the situation. He walked the troubled bar patron outside and came back into the bar a moment later feeling good that he remedied the situation.

Moments later the police arrived. They saw the only black man in the bar and asked him to step outside. He tried to explain to the officers that he was the person who calmed down the situation, he was not the problem!

As the officers got more aggressive in attempting to get him outside instead of verifying that he was the solution not the problem, one of the officers pushed him towards the door. He pushed back. The officer stumbled and almost immediately, the African American man was tackled by several other cops and charged with Second Degree Assault. Witnesses at the bar who never saw our client before described the situation as a “Rodney King”-like an event.

The Repercussions

Thanks to the threat of mandatory prison, the District Attorney was able to coerce my client into taking a plea deal, although a very favorable one. His options looked like this: either go to trial and run the risk of having a permanent felony conviction on his record and spending about 5 years in prison or take a plea deal to a misdemeanor under a deferred sentence.

This was like a twisted game of “Deal or No Deal.”

My client was a family man with a new baby on the way. He did end up taking the plea deal, but it bothered him for the rest of his life. In fact, about a year later, our office received a call from his wife sharing the news that he had taken his life. Obviously, he had other issues, but the fact that he had to plead to something he didn’t feel he did cause a real moral dilemma.

It’s Time to Revisit this Law and Trust Our Judges

Our judges will always have the ability to sentence someone to prison when the facts justify it. However, they should also have the discretion to not sentence someone to prison if they don’t think it’s justified.

The Law Offices of Barre Sakol have joined an organization that is working to change the mandatory prison sentence for Second Degree Assault cases in certain situations. We believe it is important to make sure that our prisons aren’t filled with people who just happened to be in the wrong place at the wrong time.

If you are facing Second Degree Assault charges and need legal counsel, call our office at (720) 999-9506 to set up a free consultation.