BRUCE E. WIMBERLY, Petitioner - Appellant, v. DEAN WILLIAMS, Respondent - Appellee.
No. 20-1128
United States Court of Appeals for the Tenth Circuit
September 29, 2021
PUBLISH
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-00968-MEH)
Kathleen Shen, Assistant Federal Public Defender, Districts of Colorado and Wyoming, Denver, Colorado (Virginia L. Grady, Federal Public Defender, Denver, Colorado, with her on the briefs), on behalf of the Petitioner-Appellant.
Ann Stanton, Assistant Attorney General (Phillip J. Weiser, Colorado Attorney General, and Ann Luvera, Assistant Attorney General, with her on the brief), Colorado Department of Law, Denver, Colorado, on behalf of the Respondent-Appellee.
Before BACHARACH, EBEL, and McHUGH, Circuit Judges.
In 1984, Mr. Bruce E. Wimberly pleaded guilty to first-degree sexual assault. The Colorado trial court accepted his plea and considered the sentencing options. One option was a conventional sentence: a determinate prison term up to 24 years. But the Colorado Sex Offenders Act of 1968 provided a second option: an indeterminate term of confinement lasting anywhere from one day to life imprisonment. The court chose the second option, made additional findings required by the statute, and imposed an indeterminate term of confinement ranging from one day to life imprisonment.
More than 24 years have passed. With passage of this time, Mr. Wimberly argues that the Constitution requires his release because he didn‘t receive a new hearing at the end of the 24-year determinate term (that the trial court chose not to impose). Without a new hearing, Mr. Wimberly claims that his continued confinement violates his rights to equal protection and due process.
1. Based on the conviction, the state trial court imposes an indeterminate term of one day to life.
Mr. Wimberly‘s indeterminate term was authorized by the Colorado Sex Offenders Act of 1968,
- Mr. Wimberly was a “sex offender,” see
Colo. Rev. Stat. § 16–13–202(4)–(5) (1986) , and - his release would create “a threat of bodily harm to members of the public,”
Colo. Rev. Stat. § 16–13–211(2) (1986) ; see also People v. Kibel, 701 P.2d 37, 40 (Colo. 1985) (explaining the procedures required to commit a defendant under the Sex Offenders Act).
Mr. Wimberly continues to serve the indeterminate term, and the Colorado Board of Parole has denied his multiple requests for release.
2. The federal district court denies habeas relief.
In federal district court, Mr. Wimberly applied for habeas relief, invoking
3. The maximum of the indeterminate term of confinement is life imprisonment, not 24 years.
The availability of habeas relief turns on the adequacy of process when the trial court ordered confinement, and the adequacy of process turns on whether Mr. Wimberly began a new term once he had served 24 years in prison. If he had not yet served the “maximum sentence” for his crime, no new process was necessary. See Specht v. Patterson, 386 U.S. 605 (1967); Humphrey v. Cady, 405 U.S. 504 (1972).
Mr. Wimberly contends that he has already served the maximum sentence, defining it as the longest possible determinate term: 24 years’ imprisonment.2 The district court rejected this assumption,
Because determination of the maximum sentence is a legal conclusion, we conduct de novo review. Leatherwood v. Allbaugh, 861 F.3d 1034, 1042 (10th Cir. 2017). Conducting this review, we agree with the district court. Mr. Wimberly‘s claim assumes that the maximum sentence was 24 years rather than life imprisonment. But this assumption lacks support in the Sex Offenders Act, Colorado Supreme Court opinions interpreting the statute, or the judgment of conviction.
When Mr. Wimberly was sentenced for first-degree sexual assault, the Sex Offenders Act allowed the state trial court to commit a sex offender to the custody of the Colorado Department of Corrections for an indeterminate term from one day to life “in lieu of the sentence otherwise provided by law.”
By using the term “in lieu of,” the Colorado legislature allowed the trial court to impose either a determinate sentence or the indeterminate sentence—but not both for the same offense. The Colorado Supreme Court has prohibited hybrid sentences incorporating both determinate and indeterminate sentencing options. This prohibition is reflected in People v. Sanchez, 520 P.2d 751 (Colo. 1974), where the sentencing court had imposed a sentence of both a range of years and an indeterminate term of one day to life. Id. at 751. The Colorado Supreme Court held that the sentencing court had erred by imposing both alternatives. Id.
The Colorado Supreme Court explained that the sentencing court could commit the defendant to an indeterminate term of confinement, adding that “[i]f [the sentencing court] elects to exercise this option, it must do so in lieu of the sentence otherwise provided by law.” Id. at 753 (internal quotation marks omitted). Given the indeterminate term, the sentencing court could not impose a “concurrent term for the underlying offense.” Id.; see also People v. Lyons, 521 P.2d 1265, 1267 (Colo. 1974) (stating that Sanchez “established that the district courts could not give a defendant . . . a sentence of commitment and a sentence of imprisonment“) (cleaned up); People v. Ingram, 582 P.2d 689, 691 (Colo. App. 1978) (“As Sanchez and Lyons recognize, concomitant to such power to commit a defendant as a sexual offender is the duty to elect between the sentencing option [of an indeterminate commitment as a sex offender] or a term of imprisonment.“) (cleaned up).
In Mr. Wimberly‘s case, the trial court viewed an indeterminate term of confinement and a specific prison term as discrete sentencing options. The court chose a different option for each count of conviction. For the second count, the written judgment imposed an indeterminate sentence ranging from one day to life:
It is now the Judgment and Sentence of the Court that the Defendant be sentenced to the custody of the Executive Director of the Department of Corrections . . . for a term of from 1 day to life pursuant to sex offenders act, C.R.S. 1973 16-13-102 plus 1 year parole.
R. at 23 (emphasis added; capitalization altered).
Two months earlier, the court had chosen a different sentencing option for Mr. Wimberly on a separate charge of sexual assault. That time, the judgment had specified “a term of 24 years plus 1 year parole.” Id. at 22 (capitalization altered). The court had not mentioned an indeterminate term. Id.
Despite the wording of the newer judgment, Mr. Wimberly resists characterizing
But Mr. Wimberly misinterprets the statutory term “commitment.” Colorado courts regularly interpret the statutory option of indeterminate commitment under the Sex Offenders Act as a
- “sentencing option[],” People v. White, 656 P.2d 690, 694 n.3 (Colo. 1983), or
- “sentence.” People v. Kibel, 701 P.2d 37, 40 (Colo. 1985); People v. Medina, 564 P.2d 119, 121 (Colo. 1977); People v. Breazeale, 544 P.2d 970, 976 (Colo. 1975).
And when imposing a sentence, courts typically “commit” the defendant to custody. For example, federal district courts routinely impose sentences by using a form that commits the defendant to the custody of the Bureau of Prisons: “The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of . . . .” Administrative Office of the United States Courts, Form 245B, Judgment in Criminal Case (eff. Sept. 1, 2019) (emphasis added).3
The dissent likens the indeterminate term of confinement to a form of civil commitment. But civil commitment does not serve as punishment for a criminal conviction. See Poree v. Collins, 866 F.3d 235, 245 (5th Cir. 2017) (“Civil commitment is not criminal commitment; unlike a criminal sentence, civil commitment is not a sentence of punishment.“); see also Addington v. Texas, 441 U.S. 418, 428 (1979) (“In a civil commitment
state power is not exercised in a punitive sense” and “can in no sense be equated to a criminal prosecution“).
Nor does the statutory scheme fit the meaning of a “criminal commitment.” The term “criminal commitment” generally refers to commitment of defendants after their acquittal by reason of insanity. Christopher Slobogin, Dangerousness & Expertise, 133 U. Penn. L. Rev. 97, 100–01, 153 n.196 (1984).
Mr. Wimberly was subject to an indeterminate term of confinement because
- he was convicted of a crime (sexual assault) and
- the trial court made the additional findings that he was a sex offender whose release would create a threat of harm to the public.
See pp. 3, 5–6 above; see also Specht v. Patterson, 386 U.S. 605, 608–09 (1967) (“The punishment under [a prior version of the Act] is criminal punishment . . . .“). Calling the order a “criminal commitment” doesn‘t alter the reason for Mr. Wimberly‘s confinement: He was confined in order to punish
But it doesn‘t matter whether we call this a sentence or a criminal commitment. Either way, Mr. Wimberly was ordered in 1984 to remain in “the custody of the . . . Department of Corrections” for a period lasting between one day and the remainder of his lifetime as a punishment for his crime. R. at 23. Nothing new was necessary after 24 years to trigger Mr. Wimberly‘s continued confinement.
4. Specht v. Patterson does not reduce the maximum term of confinement to 24 years.
In arguing that the maximum sentence was 24 years, Mr. Wimberly relies on Specht v. Patterson, 386 U.S. 605 (1967). In Specht, the Supreme Court held that an earlier version of the Colorado Sex Offenders Act had violated a defendant‘s right to due process. Id. at 610–11.
Like the current version of the Sex Offenders Act, the earlier version had allowed an indeterminate term of confinement lasting from one day to life imprisonment upon a finding that the defendant
- posed “a threat of bodily harm to members of the public” or
- was a “habitual offender and mentally ill.”
Id. at 607. But this earlier version had allowed the indefinite term of confinement based on undisclosed evidence and did not require a hearing. Id. at 608. The Supreme Court held that
[d]ue process . . . requires that [the defendant] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed.
Id. at 610.
We have interpreted Specht to bear on proceedings that are “a kind of a halfway house” “between” a determination of guilt and a “normal sentencing proceeding.” United States v. Schell, 692 F.2d 672, 676 (10th Cir. 1982). In these proceedings, trial courts may make findings that allow longer sentences than would otherwise be authorized by the statute of conviction. Id. For the longer sentences, however, courts must afford defendants “greater procedural protections than those normally afforded defendants in sentencing proceedings.” Id.
For example, in United States v. Schell, we considered a statute that allowed a longer sentence if the court made additional findings. Id. at 674 (discussing
Like the defendant in Schell, Mr. Wimberly was sentenced under a statute that permits a longer sentence after post-trial findings. These findings came only after the court had provided all of the required procedural protections to Mr. Wimberly. See
Mr. Wimberly points out that in Specht, the Supreme Court observed that the conviction had triggered another proceeding
This argument relies on a misinterpretation of Specht. There the Supreme Court “went out of its way to distinguish the [prior version of the] Colorado statute from the general run of indeterminate sentencing provisions.” Alan M. Dershowitz, Indeterminate Confinement: Letting the Therapy Fit the Harm, 123 U. Penn. L. Rev. 297, 324 (1974). So Specht has little to say about the procedures required for the current version of the Colorado statute, which authorizes the court to impose an indeterminate term from the outset. See id. at 325 (“[U]nless the Court extends the reasoning of Specht to indeterminate sentences in general, the effect of the case will be quite limited.“).
But even if we were to characterize Mr. Wimberly‘s confinement as a “criminal commitment,” it would
- last for Mr. Wimberly‘s lifetime (unless he were to obtain parole) and
- constitute a punishment.
See Parts 1–3, above. So Specht wouldn‘t affect the length of confinement that the trial court could order for Mr. Wimberly‘s conviction.
Specht simply requires procedural protections for a defendant who faces increased punishment following a conviction. See United States v. Schell, 692 F.2d 672, 676–77 (10th Cir. 1982); see also United States v. Davis, 710 F.2d 104, 106 (3d Cir. 1983) (stating that in Specht, the Supreme Court “required additional procedural protections . . . when a convicted individual is sentenced to a longer term of imprisonment pursuant to a statute which requires additional fact-finding by the sentencing judge“); Hollis v. Smith, 571 F.2d 685, 693 (2d Cir. 1978) (stating that Specht provides that “where a higher sentence requires proof of a fact not established in the criminal trial . . . [,] the sentencing is subject to certain due process guarantees with respect to proof of the critical fact“).
In Specht, the Court held only that the state‘s earlier procedures had been inadequate to justify indefinite confinement under the Fourteenth Amendment‘s Due Process Clause. Specht v. Patterson, 386 U.S. 605, 610–11 (1967); see, e.g., Camillo v. Armontrout, 938 F.2d 879, 881 (8th Cir. 1991) (discussing the Supreme Court‘s direction in Specht that “in the
context of enhanced sentencing for prior criminal conduct, due process requires the defendant to be ‘present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own‘” (quoting Specht, 386 U.S. at 610)); United States ex rel. Stachulak v. Coughlin, 520 F.2d 931, 935 (7th Cir. 1975) (“In Specht the Court held that an individual could not be sentenced under the Colorado Sex Offenders Act, a statute similar in purpose to the one before us, unless he was accorded the fundamental protections of due process.“). To reach this holding, the Court held that the criminal punishment had triggered the Fourteenth Amendment‘s Due Process Clause. Specht, 386 U.S. at 608.
In its discussion, the Court stated that it would apply the Due Process Clause regardless of whether the “commitment proceedings” are “denominated civil or criminal.” Id. Based on this wording, Mr. Wimberly and the dissent argue that the Supreme Court was characterizing the Colorado scheme as something other than a sentence imposed as punishment for a crime. The Court wasn‘t and couldn‘t: The
Specht held only that the defendant had inadequate procedural safeguards for the post-trial findings. Id. at 610–11. But here, Mr.
Wimberly obtained all of the required safeguards in 1984 (when the state trial court ordered his indeterminate confinement). With those safeguards, Mr. Wimberly might have spent just one day in confinement. Or he might need to spend the rest of his life there. Either way his status wouldn‘t change, so the Constitution didn‘t require new procedural safeguards while Mr. Wimberly continued to serve his indeterminate term.
* * *
Mr. Wimberly doesn‘t argue that the state trial court ordered indefinite commitment without providing the procedural protections required under Specht. So his maximum term of confinement was life imprisonment, not 24 years.
5. Because Mr. Wimberly did not get a determinate sentence, his maximum sentence was life imprisonment (not 24 years) and his continued confinement does not violate his right to equal protection or due process.
According to Mr. Wimberly, the State violated his rights to equal protection and due process by
- giving a hearing to civilly committed individuals before they were committed and
- denying judicial review to Mr. Wimberly before continuing his custody after 24 years of imprisonment.
We disagree.
A. Right to Equal Protection
Without a fundamental right or suspect class, the Fourteenth Amendment‘s Equal Protection Clause requires only a rational basis to give greater safeguards to civil committees than to individuals sentenced under the Sex Offenders Act. Okla. Educ. Ass‘n v. Alcoholic Beverage Laws Enf‘t Comm‘n, 889 F.2d 929, 932 (10th Cir. 1989).
Mr. Wimberly claims a fundamental right to freedom from bodily restraint. But his conviction stripped him of this right for the duration of his confinement (regardless of whether we call it a sentence or criminal commitment). See Jones v. N.C. Prisoners Labor Union, Inc., 433 U.S. 119, 129 (1977) (“[T]his Court has repeatedly recognized the need for major restrictions on a prisoner‘s rights.“); People v. White, 656 P.2d 690, 694 n.3 (Colo. 1983) (“Although sentencing options under the [Sex Offenders Act] may involve a deprivation of liberty, one validly convicted of a crime does not have a fundamental right to his unrestricted liberty.“). And he does not allege membership in a suspect class.
So we consider only whether a rational basis exists for the different procedures governing civil committees and individuals punished under the Sex Offenders Act. In determining whether a rational basis exists, we give great deference to the Colorado legislature. City of Herriman v. Bell, 590 F.3d 1176, 1194 (10th Cir. 2010).
Given this deference, we conclude that the Colorado legislature had a rational basis to supply different procedural safeguards for civil committees and individuals punished under the Sex Offenders Act. Individuals punished under the Sex Offenders Act have been convicted of crimes considered particularly heinous; civil committees haven‘t been convicted of anything. See People v. Kibel, 701 P.2d 37, 42 (Colo. 1985) (stating that sex offenders sentenced under the Act have been convicted “of
And indeterminate terms under the Sex Offenders Act are imposed as punishment. See Specht v. Patterson, 386 U.S. 605, 608–09 (1967) (“The punishment under [a prior version of the Colorado Sex Offenders Act] is criminal punishment . . . .“). In contrast, civil commitment isn‘t used as punishment. Compare id., with People v. Dash, 104 P.3d 286, 291 (Colo. Ct. App. 2004) (stating that “‘no penal or punitive considerations underlie the state‘s interest’ in civil commitment, which is designed to address not criminal conduct, but instead the present and future mental health and well-being of the mentally ill individual“) (quoting Gilford v. People, 2 P.3d 120, 125 (Colo. 2000)) (cleaned up). As a result, the State did not
violate Mr. Wimberly‘s right to equal protection by failing to start proceedings for civil commitment 24 years into his indeterminate term. See Gwinn v. Awmiller, 354 F.3d 1211, 1228–29 (10th Cir. 2004) (rejecting an equal-protection claim by a sex offender who had been convicted of robbery because he, “unlike other robbery defendants, had committed a sexual assault” and could rationally be treated differently).
B. Right to Due Process
Nor did the State violate Mr. Wimberly‘s right to due process. When sentenced to an indeterminate term of one day to life, Mr. Wimberly enjoyed the rights to have an evidentiary hearing, to subpoena witnesses, to call witnesses, and to cross-examine adverse witnesses.
6. The Supreme Court‘s opinions in Humphrey and Baxtrom do not change the terms of Mr. Wimberly‘s indeterminate sentence.
Mr. Wimberly and the dissent rely on two Supreme Court opinions involving sentences that lapsed, requiring a new judicial order to continue the confinement: Humphrey v. Cady, 405 U.S. 504 (1972) and Baxtrom v. Herold, 383 U.S. 107 (1966). These opinions shed little light on our issue, for they require new procedures and judicial determinations to keep a person in prison after the sentence has lapsed.
But Mr. Wimberly‘s indeterminate sentence has not lapsed, so no new determinations are necessary. The state district
In Humphrey and Baxtrom, the prisoners received sentences for specific terms. In these cases, the questions concerned the prisoners’ procedural rights after those terms had ended. See Humphrey, 405 U.S. at 506–07; Baxtrom, 383 U.S. at 108, 110. Neither opinion
- involved someone sentenced or criminally committed to an indeterminate term of commitment “in lieu of the sentence
The only issue here is whether the Fourteenth Amendment required a judicial hearing once Mr. Wimberly completed 24 years of his indeterminate term. We express no view as to the possibility of remedies under state law, such as mandamus, for deficiencies in the frequency and adequacy of review for parole.
otherwise provided by law” (
- suggested that a statutory maximum for a determinate term should control when a sentencing court imposes an indeterminate term of confinement after providing the necessary procedural safeguards.
The dissent responds that Humphrey and Baxtrom still apply, citing the Supreme Court‘s subsequent statement in Jackson v. Indiana. Dissent at 33–35. In that case, the Court stated that “[t]he Baxtrom principle also has been extended . . . to commitment in lieu of [a] sentence following conviction as a sex offender.” Jackson v. Indiana, 406 U.S. 715, 724–25 (1972). But Jackson noted that Baxtrom had involved “a state prisoner civilly committed at the end of his prison sentence.” Id. at 723 (emphasis added). And as an example of the “extended” application of “the Baxtrom principle,” Jackson cited Humphrey. See Jackson, 406 U.S. at 724–25.
In Humphrey, the defendant had been committed for one year, the maximum term of imprisonment for the underlying offense. Humphrey v. Cady, 405 U.S. 504, 507 (1972). The trial court extended the commitment for five years without allowing a jury trial that the state had afforded to defendants in other civil commitment proceedings. Id. at 507–08. The Supreme Court concluded that the defendant had stated an equal protection claim “with respect to the subsequent renewal proceedings,” reasoning that the commitment orders had stemmed from “new findings of fact”
unshackled from “the nature of the defendant‘s crime or the maximum sentence authorized for that crime.” Humphrey, 405 U.S. at 511.5 Unlike the commitment orders in Humphrey, Mr. Wimberly‘s indefinite term of confinement stemmed from
- his criminal conviction and
- the trial court‘s finding that he was a sex offender whose release would threaten the safety of the public.
See
Unlike the defendants in Baxtrom and Humphrey, Mr. Wimberly did not obtain a new commitment at the end of a prison sentence. So neither opinion changes the terms of Mr. Wimberly‘s indeterminate confinement—no matter what we call it. Even if we call the order a criminal commitment, it went into effect in 1984 and
7. Conclusion
Mr. Wimberly was sentenced to prison for an indeterminate term between one day and life imprisonment. At sentencing, the trial court provided due process. The court did not need to provide further process when Mr. Wimberly completed 24 years of his indeterminate term of confinement. We thus affirm the denial of relief on Mr. Wimberly‘s claims involving a denial of due process and equal protection.
No. 20-1128, Wimberly v. Williams
EBEL, J., concurring.
I am pleased to join the majority opinion in this case. I agree that Mr. Wimberly cannot make out an equal protection claim because he is not similarly situated to civil committees, who have not been committed as the result of a criminal conviction for a serious sex crime. Mr. Wimberly‘s due process claim also fails because he was given full process and protection when his valid indeterminate sentence, which remains in effect, was first issued. And Mr. Wimberly is not entitled specifically to judicial review of his continued confinement.
I write separately to address a different issue which was not raised in this case, but which creates concern about the fairness of Mr. Wimberly‘s confinement. When Mr. Wimberly and others like him were sentenced to indeterminate commitment under the
The factual record, however, is silent as to whether the periodic parole board evaluations Mr. Wimberly has received contained sufficient analysis of the current threat of bodily harm to the public that he presents to warrant his continued confinement under the indeterminate CSOA sentence. The merits of the previous parole board decisions are not before us. But Mr. Wimberly still has the option of bringing such a claim in state court where he could develop an appropriate record and seek a ruling from the Colorado courts regarding whether he has a right to a periodic review of whether he presents a continuing threat of bodily harm to members of the public.
20-1128, Wimberly v. Williams
McHUGH, Circuit Judge, dissenting:
Petitioner-appellant Bruce E. Wimberly has been imprisoned for over 37 years,
The majority‘s conclusion stems from its premise that “it doesn‘t matter whether we call this a sentence or a criminal commitment.” Maj. Op. at 9. I reject this premise. Mr. Wimberly is presently confined under the
From my premise that Mr. Wimberly is serving a criminal commitment, I further conclude Mr. Wimberly‘s present confinement violates the Equal Protection Clause of the
I. BACKGROUND
A. Factual History
The facts in this appeal are undisputed. Mr. Wimberly pleaded guilty to multiple criminal offenses in Colorado state court in January 1984. First, Mr. Wimberly pleaded guilty to first degree criminal trespass in Arapahoe County District Court Case No. 83CR228. For that crime, he was sentenced to 2 years in state prison. Eight days later, Mr. Wimberly pleaded guilty to two separate counts of first degree sexual assault under
The state trial court set Mr. Wimberly‘s 24-year sentence and his term of commitment imposed for his first degree sexual assault convictions to run concurrently to each other and consecutively to his 2-year sentence for criminal trespass. The court set his 16-year sentence for burglary to run concurrently to his determinate sentences and to his indeterminate term of commitment. As a result, Mr. Wimberly was subject to a maximum period of imprisonment of 26 years under his determinate sentences, as well as to an indeterminate, one-day-to-life period of commitment under the CSOA.
Mr. Wimberly was transferred to the Colorado Department of Corrections to begin serving these terms in March 1984. The parole board began reviewing Mr. Wimberly‘s case in September 1994; the board either deferred or tabled his review on each occasion.
B. Procedural History
In March 2019, Mr. Wimberly filed a petition for a writ of habeas corpus pursuant to
Mr. Wimberly timely filed a notice of appeal. We granted Mr. Wimberly a COA to address whether “his indeterminate commitment beyond the expiration of his maximum underlying criminal sentence violates both the equal protection and due process clauses of the Fourteenth Amendment.” Order at 1–2, July 17, 2020.
II. DISCUSSION
This dissent proceeds in four main parts. I first set forth the appropriate standard of review (Part A) and the general legal standards relevant to my analysis (Part B). In Part C, I analyze whether the CSOA is a scheme of criminal commitment or of criminal sentencing. I believe this constitutes a key threshold question for purposes of our constitutional analysis. Finally, in Part D, I explain why, in my view, Mr. Wimberly‘s present confinement violates his right to equal protection under the
A. Standard of Review
When a state prisoner appeals the denial of a
1. Colorado Sex Offenders Act of 1968
At the time Mr. Wimberly pleaded guilty in 1984 to his various offenses, the CSOA was titled “Indeterminate commitment” and provided:
The district court having jurisdiction may, subject to the requirements of this part 9, in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the [Department of Corrections] for an indeterminate term having a minimum of one day and a maximum of his or her natural life.
The CSOA requires certain proceedings before an individual may be committed under it. These procedural steps were outlined by the Colorado Supreme Court in People v. Kibel:
Upon the motion of the district attorney, the defendant, or the court, within twenty days of conviction, the court must commence CSOA proceedings. The court advises the defendant orally and in writing of certain procedural rights, and commits him for examination by two psychiatrists. The examining psychiatrists submit written reports to the court, setting forth their opinions as to 1) whether the defendant, if at large, poses a threat of bodily harm to members of the public; 2) whether the defendant is “mentally deficient“; 3) whether the defendant could benefit from psychiatric treatment; and 4) whether the defendant could be adequately supervised on probation. The probation department also submits to the court a report on the defendant. After receiving these reports, the court may terminate CSOA proceedings and sentence the defendant for his substantive offense.
If the court proceeds under the CSOA, a hearing is held, at which the court receives evidence concerning the public danger posed by the defendant. The defendant has the right to subpoena and examine witnesses, to receive a list of prosecution witnesses ten days before the hearing, and to cross-examine these witnesses as well as the psychiatrists and probation officers who have submitted reports. The court then may commit the defendant under the CSOA if it finds beyond a reasonable doubt that the defendant poses a threat of bodily harm to members of the public. Six months following this commitment, and every twelve months thereafter, the state parole board (board) must “review all reports, records, and information” concerning the defendant. The board may parole the defendant, or transfer the defendant to “any facility under the jurisdiction of the department, if the board deems it to be in the best interests of said person and the public.” The board must make a written ruling after each review.
701 P.2d 37, 39–40 (Colo. 1985) (citations and footnote omitted) (quoting
The CSOA has since been superseded by the
result, the CSOA applies only to individuals like Mr. Wimberly who were “sentenced
2. Colorado Law on Involuntary Civil Commitments
Under Colorado law, if an individual is in state custody pursuant to a long-term involuntary civil commitment, that commitment is subject to judicial review at six-month intervals.
C. Commitment vs. Sentencing
A critical threshold issue for resolving Mr. Wimberly‘s constitutional claims is whether the CSOA is a scheme of criminal commitment or criminal sentencing. The majority concludes that the distinction between criminal commitment and a criminal sentence “doesn‘t matter” because in either instance Mr. Wimberly‘s confinement is punishment for his crimes. Maj. Op. at 9.
Respectfully, I view this distinction as highly relevant. Unsurprisingly, Mr. Wimberly agrees and contends the distinction is constitutionally significant. But the State also concedes the importance of this distinction. See Oral Arg. at 33:18–53 (agreeing that, if the CSOA provides for commitment rather than sentencing, the analysis for Mr. Wimberly‘s equal protection claim requires comparing how he is treated to how other involuntary committees in Colorado are treated);
Before turning to that issue, however, I first explain why the CSOA is properly understood as providing for criminal commitment rather than criminal sentencing. I begin by considering whether this question is governed by federal constitutional law or Colorado state law. Part II.C.1. I then explain why, under either source of law, the CSOA is properly understood as providing for a commitment. See Part II.C.2 (federal constitutional law); Part II.C.3 (state law).
1. Whether the Commitment-Versus-Sentencing Issue Is One of State Statutory Interpretation or Federal Constitutional Interpretation
The parties first dispute whether the U.S. Supreme Court or the Colorado Supreme Court is the ultimate authority on the issue of whether the CSOA is a commitment or a sentencing scheme. The State argues this is a matter of state statutory interpretation and, as such, this court is bound by the Colorado Supreme Court‘s interpretation of the statute. Mr. Wimberly counters that the issue before this court is what counts as a commitment for purposes of the
I cannot agree. Instead, I agree with Mr. Wimberly that this issue is one of federal constitutional law. To be sure, we would look to Colorado law to resolve issues as to what the CSOA “means” in terms of what procedures it provides and how the legislature intended that it be implemented. See, e.g., Dennis v. Poppel, 222 F.3d 1245, 1257 (10th Cir. 2000) (holding that a federal habeas court is bound to accept a state “court‘s construction of its state statutes“). But those issues are not in dispute here. Rather, the threshold question here is whether the confinement provided for in the CSOA counts as a commitment or sentencing for purposes of our federal constitutional analysis. Accordingly, I look to U.S. Supreme Court caselaw as the ultimate authority to answer this question. See, e.g., James v. City of Boise, 577 U.S. 306, 307 (2016) (explaining that all state and federal courts are “bound by th[e Supreme] Court‘s interpretation of federal law,” for “if state courts were permitted to disregard this Court‘s rulings on federal law, ‘. . . the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states[; t]he public mischiefs that would attend such a state of things would be truly deplorable‘” (quoting Martin v. Hunter‘s Lessee, 14 U.S. (1 Wheat.) 304, 348 (1816)).
The
For these reasons, I agree with Mr. Wimberly that the ultimate source of authority for the commitment-versus-sentencing issue is U.S. Supreme Court caselaw. In the next section, I explain why, under that caselaw, the CSOA provides for commitment rather than sentencing. Even if I were to agree with the majority that state law governs this question, however, I would nevertheless reach the same conclusion. See Part II.C.3, infra.
2. Whether the CSOA Provides for Commitment or Sentencing under U.S. Supreme Court Law
The U.S. Supreme Court has instructed that whether a confinement is an involuntary commitment for purposes of the Equal Protection and Due Process Clauses
a. Requisite proceedings
In Specht v. Patterson, the U.S. Supreme Court considered whether the immediate precursor to Colorado‘s 1968 Sex Offender Act, as interpreted by the Colorado Supreme Court, constituted a commitment or a sentence for purposes of the
materially identical to that in the CSOA and squarely held it was an involuntary commitment for purposes of the Equal Protection and Due Process Clauses. Like the provision at issue in Specht, the CSOA “does not make the commission of a specified crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public.” Id. at 608. Specifically, following a defendant‘s conviction of a specified sex offense, the Act allows the state, the defendant, or the trial court to move for initiation of commitment proceedings.
Post-hearing CSOA proceedings also support that the Act is a commitment scheme. The state parole board can transfer anyone committed under the Act “to any facility under the jurisdiction of the department [of corrections] or to the department of human services subject to the availability of staff and housing.”
b. Nature of factual findings
The nature of the factual findings required to support confinement under the
Mr. Wimberly argues Specht is “squarely on point” and controls the outcome here. Pet‘r Reply at 2; see also
3. Whether the CSOA Provides for Commitment or Sentencing under Colorado State Law
As discussed in Part II.C.1, U.S. Supreme Court caselaw is the appropriate
this court should look to Colorado law instead, however, I would hold this authority, at best, supports a conclusion that the CSOA is ambiguous as to whether it provides for commitment or sentencing. But applying Colorado‘s tools of statutory construction to the CSOA resolves that ambiguity in favor of Mr. Wimberly‘s position that the CSOA provides for a criminal commitment.
Colorado argues the CSOA provides for criminal sentencing, rather than commitment, asserting the state‘s highest court “ha[s] routinely interpreted the CSOA as allowing the imposition of an indeterminate sentence as an alternative to [a] determinate sentence.”
Answer Br. at 11. Colorado cites four cases in purported support of this proposition: Kibel, 701 P.2d 37; People v. White, 656 P.2d 690 (Colo. 1983) (”White“); People v. Medina, 564 P.2d 119 (Colo. 1977); and People v. Breazeale, 544 P.2d 970 (Colo. 1975).11
These cases, however, are more accurately read as interpreting the CSOA to allow for the imposition of indefinite criminal commitment as a “sentencing alternative” to a conventional term of imprisonment under a determinate sentence. See Breazeale, 544 P.2d at 976 (emphasis added); Medina, 564 P.2d at 121 (same). Kibel and White together provide perhaps the Colorado Supreme Court‘s most thorough discussion of the Act. Kibel⸺which followed and interpreted White⸺evinces a clear understanding of commitment and sentencing as distinct concepts, while also making plain that proceedings under the Act fall within the former sphere. Specifically, the Colorado Supreme Court explained that commitment under the CSOA “may be viewed as analogous to other commitments based upon predictions of future harm” and warned such confinement pursuant to the CSOA is “subject to the protection of the state and federal due process clauses.” Kibel, 701 P.2d. at 42 n.8, 43.
Indeed, Colorado state courts—including the Colorado Supreme Court—have repeatedly recognized that the CSOA allows for commitment as a discretionary alternative to conventional criminal sentencing, and they have explicitly distinguished between these two options. See People v. Lyons, 521 P.2d 1265, 1266 (Colo. 1974) (“[W]e hold that under the Act the district court has the option of sentencing or committing a defendant who has been found to be a threat to the public.“); People v. Sanchez, 520 P.2d 751, 753 (Colo. 1974) (agreeing with defendant that “his indeterminate commitment under the [CSOA] is [i]n lieu of his sentence
The distinction drawn by these cases between CSOA commitment and standard criminal sentencing is reinforced by the perceived favorability to the defendant of proceeding under the commitment process of the CSOA in lieu of being sentenced. See Lyons, 521 P.2d at 1267 (holding there to be no “automatic right to commitment” under the CSOA, for the Act vests the district court “with the option of committing or sentencing the defendant“); see also People v. Hall, 619 P.2d 492, 493 (Colo. 1980) (discussing the probation department‘s “statistical conclusion that the average length of commitment under the Sex Offenders Act was 24.7 months” and consequent recommendation that the court “instead[] sentence the defendant for a long term under the penalty range authorized for a class two felony“); Breazeale, 544 P.2d at 976 (reasoning that while the CSOA‘s wording appears to allow a defendant to require initiation of a commitment hearing, there is no constitutional right to proceeding under the Act, which provides trial courts with discretion “similar to the discretion in a court to suspend a sentence or to grant probation“).
It is true the Colorado Supreme Court has at times referred interchangeably to commitment and sentencing when discussing an indeterminate term of confinement imposed under the CSOA. At most, this imprecision in the caselaw suggests the state‘s highest court has deemed the Act ambiguous as to whether the indeterminate confinement of sex offenders is a species of criminal commitment or of criminal sentencing.
When a state statute is ambiguous, “we are permitted to construe . . . and to extrapolate the true meaning of [the] statute[] according to traditional rules of statutory construction.” Phelps v. Hamilton, 59 F.3d 1058, 1070 (10th Cir. 1995). The traditional rules of statutory construction we look to are those of the state. See, e.g., Finstuen v. Crutcher, 496 F.3d 1139, 1148 (10th Cir. 2007) (“[W]e interpret state laws according to state rules of statutory construction.“). “The goal of Colorado courts in ‘interpreting the meaning or scope of any statutory term . . . is to effectuate the intent of the legislature.‘” Citizens for Responsible Gov‘t State Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1190 (10th Cir. 2000) (quoting People v. McCullough, 6 P.3d 774, 778 (Colo. 2000)). “[W]e look first to the language of the statute itself to
Applying these rules of statutory interpretation to the CSOA leads to the conclusion that it provides for commitment, rather than sentencing. Per the Act‘s plain statutory text, the Colorado legislature explicitly differentiated between commitment and sentencing, and it deliberately selected the former option for the CSOA. The CSOA‘s key section is titled “Indeterminate commitment,” and it provides that “[t]he district court having jurisdiction may, . . . in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the department for an indeterminate term having a minimum of one day and a maximum of his or her natural life.”
The majority states: “By using the term ‘in lieu of,’ the Colorado legislature allowed the trial court to impose either a determinate sentence or the indeterminate sentence—but not both for the same offense.” Maj. Op. at 5. As our full quotation of the statute shows, however, the CSOA expressly provides that the court may ”commit a sex offender” ”in lieu of the [determinate] sentence otherwise provided by law,”
In sum, even if Colorado caselaw, rather than decisions of the U.S. Supreme Court, governs, I would reach the same result: the CSOA provides for a scheme of criminal commitment, as an alternative to criminal sentencing.
D. Equal Protection Analysis
Having determined the CSOA provides for commitment as an alternative to sentencing, I now assess whether this distinction carries the constitutional import Mr. Wimberly claims. I would conclude it does, with respect to his equal protection claim.
As discussed below, Supreme Court precedent provides that no rational basis exists to treat an individual subject to criminal commitment in lieu of a criminal sentence differently from an individual subject to civil commitment, once the maximum permissible sentence for his criminal offenses has expired. I therefore agree with Mr. Wimberly that his present commitment violates the Fourteenth Amendment‘s Equal Protection Clause, because Colorado is denying him the procedural protections it affords to civil committees in its custody.15
1. Legal Standards
To establish entitlement to relief under
The Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
a. Standard of scrutiny
If legislation creates “classifications that disadvantage a ‘suspect class,’ or that impinge upon the exercise of a ‘fundamental right,‘” the Equal Protection Clause “requir[es] the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17 (1982) (footnotes omitted). If the legislation does not create classifications that disadvantage a suspect class or impinge upon the exercise of a fundamental right, then the legislation need only be “rationally related to a legitimate state interest.” ACLU of N.M. v. Santillanes, 546 F.3d 1313, 1319 (10th Cir. 2008) (quotation marks omitted).
Mr. Wimberly asserts heightened scrutiny should apply, based on his fundamental right in avoiding bodily restraint. He contends,
b. Differential treatment
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). During the maximum duration of a criminal sentence, those committed under criminal statutes are not similarly situated to those committed under civil statutes—the former are subject to a criminal penalty, while the latter are not. Thus, courts have indicated a rational basis exists for treating criminal committees differently than civil committees during the pendency of the criminal sentence the court might otherwise have imposed. See Humphrey, 405 U.S. at 510-11 (stating the contention that criminal commitment does not require the same procedural safeguards as civil commitment “arguably has force” when a criminal commitment “is limited in duration to the maximum permissible sentence“); Adrian, 701 P.2d at 47 n.5 (“[P]rior to the expiration of a period of confinement equal to the maximum permissible sentence the defendants could have received for their underlying crimes, there exists a rational basis for denying judicial review to sex offenders.“); accord Kibel, 701 P.2d at 41-42; White, 656 P.2d at 694. Prior to the expiration of a criminal sentence, then, the Equal Protection Clause does not require those criminally committed to receive the same procedural protections afforded to those committed under civil statutes.
But the same is not true for criminal committees who have been confined for a period greater than the maximum permissible sentence for their underlying crimes. Rather, following the expiration of the maximum permissible sentence, the state‘s “punitive interest,” as manifested in its power to “imprison convicted criminals for the purposes of deterrence and retribution,” has been eliminated. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992); see also United States ex rel. Hayden v. Zelker, 506 F.2d 1228, 1230 (2d Cir. 1974) (noting that an equal protection challenge to a New York sex-offense commitment scheme functionally identical to the CSOA “may raise substantial constitutional problems“); Kibel, 701 P.2d at 42 n.8 (in the context of the CSOA, stating “[t]he period following the expiration of the maximum permissible sentence arguably is analytically distinct from the initial period of confinement corresponding to the sentence that the defendant otherwise might have received“). Indeed, because CSOA commitment after expiration of a defendant‘s maximum permissible sentence is justified only by a court‘s initial finding of future dangerousness, rather than by any finding of fact tied directly to the underlying crime, “the commitment during this period may be viewed as analogous to other commitments based upon predictions of future harm“—that is, to civil commitments. Kibel, 701 P.2d at 42 n.8; see also Specht, 386 U.S. at 608-09 (stating that CSOA commitment “is designed not so much as retribution as it is to keep individuals from inflicting future harm“).
The Baxstrom Court held both provisions of § 384 violated the Equal Protection Clause. The “petitioner was denied equal protection of the laws by the statutory procedure under which a person may be civilly committed at the expiration of his penal sentence without the jury review available to all other persons civilly committed in New York.” Id. at 110. Having made de novo review by jury trial “generally available” to all others facing commitment, New York could “not, consistent with the Equal Protection Clause of the Fourteenth Amendment, arbitrarily withhold it from some.” Id. at 111. Additionally, “[w]here the State has provided for a judicial proceeding to determine the dangerous propensities of all others civilly committed to an institution of the Department of Correction, [the State] may not deny this right to a person in [petitioner‘s] position solely on the ground that he was nearing the expiration of a prison term.” Id. at 114.
In reaching this holding, the Baxstrom Court rejected New York‘s argument that it had “created a reasonable classification differentiating the civilly insane from the ‘criminally insane,’ which [it] define[d] as those with dangerous or criminal propensities.” Id. at 111. While this classification “may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given,” the Court reasoned, “it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all.” Id. (emphasis added). For purposes of that latter question, “there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.” Id. at 111-12; see also Humphrey, 405 U.S. at 508 (citing Baxstrom as holding that a prisoner‘s criminal record “could not . . . justify depriving him of a jury determination on the basic question [of] whether he was mentally ill and an appropriate subject for some kind of compulsory treatment“); Jones v. United States, 463 U.S. 354, 369 n.19 (1983) (“The Court has held that a convicted prisoner may be treated involuntarily for particular psychiatric problems, but that upon expiration of his prison sentence he may be committed only as would any other candidate for civil commitment.“).
The principle of Baxstrom, the Supreme Court subsequently articulated, is that “criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others.” Jackson, 406 U.S. at 724. And “[the Baxstrom principle also has been extended . . . to commitment in lieu of sentencing following conviction as a sex offender.” Id. at 724-25 (citing Humphrey, 405 U.S. 504); see also Kibel, 701 P.2d at 42 n.8 (“[T]he United States Supreme Court has indicated that the rational basis for distinguishing sex offenders from other persons committed because they constitute a public danger may disappear once the maximum sentence for the underlying crimes has expired.“).16
In Humphrey v. Cady, the Court addressed the Wisconsin Sex Crimes Act. 405 U.S. at 507. This act authorized civil commitment of a criminal defendant, after a discretionary judicial finding that the crime of conviction was sexually motivated, “for treatment in lieu of sentence, for a period equal to the maximum sentence authorized for the defendant‘s crime.” Id. Upon the state‘s request, the Wisconsin state court could authorize a five-year renewal of that commitment period after notice and hearing. Id. Additional five-year renewals could be obtained by the state in the same manner without limitation. Id. The petitioner in Humphrey advanced “substantially the same” argument as the petitioner in Baxstrom— “that commitment for compulsory treatment under the Sex Crimes Act, at least after the expiration of the initial commitment in lieu of sentence [(which was equal to the maximum sentence authorized for the defendant‘s crime)], is essentially equivalent to commitment for compulsory treatment under Wisconsin‘s” civil commitment statute, the Mental Health Act. Id. at 508.
The Humphrey Court remanded for an evidentiary hearing on whether the Sex Crimes Act‘s failure to provide for commitment renewal procedures comporting with the procedures for civil commitment provided under the Mental Health Act violated equal protection. Id. at 506. In the process, it disposed of Wisconsin‘s argument that because commitment under the Sex Crimes Act was “merely an alternative to penal sentencing[,] . . . it does not require the same procedural safeguards afforded in a civil commitment proceeding.” Id. at 510.
That argument arguably has force with respect to an initial commitment under the Sex Crimes Act, which is imposed in lieu of sentence, and is limited in duration to the maximum permissible sentence. The argument can carry little weight, however, with respect to the subsequent renewal proceedings, which result in five-year commitment orders based on new findings of fact, and are in no way limited by the nature of the defendant‘s crime or the maximum sentence authorized for that crime.
Id. at 510-11 (emphasis added) (footnote omitted).
2. Analysis
I would hold that, under Baxstrom and Humphrey, Mr. Wimberly has been denied equal protection of the laws because the State continues to confine him under the CSOA beyond the expiration of the maximum sentence authorized for his criminal offenses, without affording him the procedural safeguards it provides to civil committees.
Colorado‘s statute governing long-term involuntary civil commitment provides for periodic review by a judge or jury at regular intervals.
In contrast, indefinite commitment under the CSOA continues at the sole discretion of the state parole board, see
Colorado has violated the Equal Protection Clause by failing to provide the procedural protections afforded to those confined under its long-term civil commitment statute beginning at the point in 2010 when Mr. Wimberly completed the 26-year determinate sentence imposed for his underlying crimes. That Mr. Wimberly‘s commitment was “triggered by a criminal conviction,” and was “merely an alternative to penal sentencing,” does not permit his continued differential treatment by the State throughout the period of “post-sentence commitment.” Humphrey, 405 U.S. at 510-11. Mr. Wimberly‘s underlying offenses may have justified the denial of “the same procedural safeguards afforded in a civil commitment” with respect to “an initial commitment” that was “imposed in lieu of sentence, and is limited in duration to the maximum permissible sentence.” Id. But it cannot justify the continued denial of those safeguards when
The majority concludes Baxstrom and Humphrey are inapplicable because “[n]either opinion [1] involved someone sentenced or criminally committed to an indeterminate term of commitment ‘in lieu of the sentence otherwise provided by law’ or [2] suggested that a statutory maximum for a determinate term should control when a sentencing court imposes an indeterminate term of confinement after providing the necessary procedural safeguards.” Maj. Op. at 19-20 (quoting
The majority‘s first purported distinction fails, for it overlooks the Supreme Court‘s subsequent statements in Jackson v. Indiana that “[t]he Baxstrom principle17 also has been extended . . . to commitment in lieu of sentencing following conviction as a sex offender.” 406 U.S. at 724-25 (emphasis added) (citing Humphrey, 405 U.S. 504). Thus, contrary to the majority‘s view, the Supreme Court has indicated the reasoning of Baxstrom is directly applicable here, and the State is required to provide Mr. Wimberly the same procedure it provides to civil committees “at the expiration of his penal sentence.” Baxstrom, 383 U.S. at 110.
I also disagree with the majority‘s contention that neither Humphrey nor Baxstrom “suggested that a statutory maximum for a determinate term should control when a sentencing court imposes an indeterminate term . . . .” Maj. Op. at 20. In my view, Humphrey is best read to mandate that any extension of a term of commitment beyond the maximum sentence authorized for the underlying crime is constitutionally equivalent to civil commitment. See Waite v. Jacobs, 475 F.2d 392, 398 (D.C. Cir. 1973) (“It might be argued . . . that Humphrey is directly applicable to the issue of indefinite commitment itself, and that it requires that the initial confinement be limited to the maximum sentence period.“). The Humphrey Court indicated a criminal conviction could justify disparities in commitment procedures only if the commitment was ”limited in duration to the maximum permissible sentence,” and it further stated that a criminal conviction could not justify differential treatment with respect to commitment proceedings that “[were] in no way limited by the nature of the defendant‘s crime or the maximum sentence authorized for that crime.” 405 U.S. at 510-11
Based on this precedent, I would conclude the Equal Protection Clause required Colorado to provide the same procedural rights to Mr. Wimberly that it provides to its civil committees (1) before extending his CSOA commitment beyond the expiration of the maximum sentence applicable to the sexual assault conviction for which he was committed, and (2) throughout the period of his “post-sentence commitment.” Humphrey, 405 U.S. at 511. At no point since 2010, when Mr. Wimberly‘s 26-year determinate sentence expired, has the State granted Mr. Wimberly such protections. That is, Colorado has not provided Mr. Wimberly the rights to: (1) judicial review of his commitment at six-month intervals, (2) his commitment being ended unless there is clear and convincing evidence that he “has a mental health disorder and, as a result of [this] disorder, is a danger to others or to himself . . . or is gravely disabled,” (3) request a jury trial at each hearing, and (4) an appeal of any adverse decision. See
III. CONCLUSION
I respectfully dissent. In my view, federal constitutional law and Colorado state law demonstrate that Mr. Wimberly‘s present confinement under the CSOA is a commitment, not a sentence. Now that Mr. Wimberly has served the maximum penal sentence for his crimes, he is entitled to the same procedural protections Colorado provides its involuntary civil committees. Colorado‘s denial of these protections violates Mr. Wimberly‘s rights to equal protection under the Fourteenth Amendment of the U.S. Constitution, and he is entitled to habeas relief.
Notes
The district court having jurisdiction shall sentence a sex offender to the custody of the department for an indeterminate term for at least the minimum of the presumptive range specified . . . and a maximum of the sex offender‘s natural life.