Fighting Back

Some of the state's cutting-edge science makes sense. Some of it doesn't

Patricia Ann Burns had been dead less than six years when her killer was paroled from prison.

Today, Clarence Burns, who walked out of a state penitentiary on April 2, 1988, is alive and living in Denver. He is 62 years old and reportedly in ill health. Alvin Lichtenstein, the judge who sparked public outrage in 1983 when he initially sentenced Burns to a work-release program for shooting Patricia Ann Burns five times in the face, is deceased.

Colorado has made great strides since the Burns case rocked the city, the state and the nation. But some of the state's efforts have proven as misguided as they were well-intentioned. What Colorado needed when it began its cycle of reforms in the 1970s was a better way to make criminals pay for their crimes. What it ended up doing was legislating into existence a whole new class of criminals, without making provisions for the repeat offenders who always pose the greatest problem. Colorado needed swift justice; it got state-sanctioned talk therapy.

It's not hard to trace this peculiar progression: The domestic-violence movement in the state was driven from the start by the doctrine that batterers are products of a "patriarchal" society and can be rehabilitated by "unlearning abusive behavior." As time has passed, no hard evidence has surfaced to support this wishful contention. But the system has persisted.

As Steve Jackson reported last week, police and prosecutors do overreach in their efforts to crack down on offenders. Especially at the municipal level, questionable cases are filed, raising questions about pre-trial punishment and the strain placed on criminal-justice agencies. However, as Alan Prendergast reveals in this week's issue, most of the problems occur not on the front end, where the changes prompted by the new get-tough approach are most obvious--and where they appear to do the most good--but on the back end, after offenders are funneled into 36-week treatment programs to ponder the evils of patriarchy and to hone their anger-management skills.

Despite the controversy that continues to surround mandatory arrest, that practice is an important tool in defusing potentially deadly situations. But "dual arrest," where victims get hauled in along with their attackers, remains a serious problem--the extent of which was underscored this year when lawmakers passed House Bill 1272, reminding police that, while they must investigate allegations by both parties, they aren't required to arrest both people. In truth, the dual-arrest provisions in HB 1272 weren't necessary; the previous statute was crystal clear on the subject of victim arrests. But change comes slowly--and police must get better training.

As for the practice of holding suspects without bond until they can go before a judge, it does test the concept of punishment before trial. However, it has also saved lives. If and until the legality of the measure is decided in a Colorado court, it should stand as an automatic consequence for offenders--but only in cases involving actual or threatened physical violence and for repeat offenders. For lesser offenses involving first-time offenders, authorities need to apply it judiciously, if at all. Young children shouldn't be carted off to Social Services because their parents had a shouting match and were forced to spend the night in jail.

Fast Track programs such as Jefferson County's are a step in the right direction, as are innovations like the Colorado Judicial Department's effort to more objectively assess offenders' likelihood of reoffense. Moving cases through the system as rapidly as possible to take advantage of the remorseful "hearts and flowers" phase that so many offenders go through makes sense; so does finding out as much as possible about batterers before they go in front of a judge.

But to do their jobs better, these programs demand better resources. Under the present system, where huge numbers of the state's domestic-violence cases are charged as municipal-ordinance violations, getting an accurate look at an offender's criminal record is often impossible. By law, Colorado's 268 municipalities aren't required to report ordinance violations to the Colorado Bureau of Investigation, which compiles the state's criminal records. That means a batterer arrested in Denver and assigned to the city's Fast Track program can be reasonably confident that the prosecutors and the judge will have no idea he's already been arrested three times in Aurora.

Municipal ordinances should be brought into line with state statutes. Cities should be required to report ordinance violations to the CBI. No longer should batterers go free because somebody doesn't want to do paperwork.

Unfortunately, however, it's precisely when offenders are convicted that the system begins to break down. The quality of treatment programs and local methods for measuring the risk posed by offenders both fluctuate wildly. Probation officers are swamped with impossibly high caseloads; in some cases, because probation departments don't give batterers direct referrals to treatment, offenders can "program-shop" among the state's smorgasbord of treatment options. Batterers who avoid or drop out of treatment can often duck consequences for weeks or months--sometimes years. As demonstrated by Christine Brennan's experience, offenders can defy the system with few immediate repercussions. The experience in Colorado's Sixth Judicial District, where only 12 percent of the offenders referred to treatment in 1995 had completed treatment a year later, hints at the scope of the problem.

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