Extreme Indifference Murders Could Soon Be Prosecuted Differently in Colorado

Joseph Koenig was sentenced to life in prison without parole after he hurled a nine-pound rock through the windshield of a moving vehicle, killing the driver, twenty-year-old Alexa Bartell.

During Koenig’s trial, he insisted that he did not intend to hurt Bartell. Then eighteen, Koenig and two other high school seniors had spent the night of April 19, 2023, driving around Jefferson County, throwing rocks at oncoming traffic. The teens struck six vehicles before targeting Bartell’s car. Most of the victims were unharmed, and two reportedly sustained just minor injuries.

In another state, the crime might have landed Koenig a second-degree murder conviction, sparing him from a mandatory life sentence. Second-degree murder is defined as knowingly causing a person’s death, while first-degree murder is intentionally killing a person after deliberation. But Koenig was convicted of first-degree murder under a legal theory that is largely unique to Colorado: murder with extreme indifference, defined as causing a person’s death while engaging in conduct that creates a grave risk to human life with an extreme indifference to the value of human life.

State legislators could soon restrict prosecutions of first-degree extreme indifference murders.

Under House Bill 26-1281, in order for a suspect to be charged with first-degree murder with extreme indifference, they must be accused of either killing more than one person, killing a child under twelve years old, killing an emergency responder on duty, or killing one person and seriously injuring at least two people with a deadly weapon.

So if a person kills just one victim (who is not a child or an emergency responder), they could not be charged with first-degree murder with extreme indifference. Instead, they would be charged with second-degree murder with extreme indifference, which would carry a sentence of 24 to 48 years. That is longer than the typical sentencing range for second-degree murder but shorter than the mandatory life sentence for first-degree murder. However, depending on the circumstances of the crime, they could potentially still be charged with first-degree murder after deliberation.

The sponsors of House Bill 1281, all Democrats, call Colorado’s current extreme indifference statute “one of the most punitive” in the country.

“Colorado is the only state that has extreme indifference as a common-law holdover,” says State Representative Cecelia Espenoza, one of the lead sponsors. “A couple of other states still have the term ‘malignant heart murder,’ but they do not usually have a model penal code. We’re the only state that contains both the original common law and a model penal code statute. Which is why there’s confusion.”

Espenoza, a former judge and law professor, joined forces with Representative Michael Carter, a long-time criminal defense attorney, to sponsor the bill. Though they’re both Democrats, the two lawmakers have markedly different perspectives on the criminal justice system and often find themselves at odds in policy debates.

“She’s a judge. I’m a criminal defense attorney. That’s like the snake and the mongoose,” Carter describes. “One of the biggest pieces of inequity in the law is the extreme indifference portion. …These disparities have been around for a while, and it took a pairing like myself and Representative Espenoza to actually attempt to get something done.”

Though the bill has brought these two together, not everyone is on board. The proposal has received formal opposition from the Colorado District Attorneys’ Council, Colorado Organization for Victim Assistance, Colorado Association of Chiefs of Police, Colorado State Patrol Association and City of Colorado Springs, according to the Colorado Secretary of State’s Office.

The only organization registered in support of the bill as of March 16 was the Colorado Criminal Justice Reform Coalition.

“The bill would have Colorado’s judicial system treat victims differently based on arbitrary categories of age, profession and whether death or injury was suffered by multiple victims, rather than asserting the value of each individual life,” says Robert Fallbeck, executive director of the Colorado Organization for Victim Assistance. “This is neither fair nor just, and it doesn’t align with COVA’s core belief that every victim of a crime deserves justice and equal treatment under the law.”

The bill sponsors say their primary goal is not to change the criminal charges in single-victim cases, but to prevent the stacking of numerous charges in multi-victim cases.

Under current law, if a person fires a gun in a room and kills one person, then the killer would be charged with one murder — but they can also be charged with one count of attempted first-degree extreme indifference murder for each individual present in the room, even if no one else was hurt.

“You already have the option to charge for first-degree homicide if you kill one person. …The situation we’re trying to rectify is overcharging in circumstances where someone is not actually harmed,” Espenoza says. “It’s often unharmed bystanders whom the defendant is being charged for harming. What we’re doing is saying you don’t get multiple life sentences if you kill one person and then do not kill five others, which is how extreme indifference has been used. There shouldn’t be the same charge if the conduct doesn’t result in the same consequence.”

The charge of attempted first-degree extreme indifference murder is often used in instances of public violence or mass attacks. That’s because prosecutors only have to prove the suspect created a grave risk to human life for each victim/bystander. Meanwhile, to charge a suspect with attempted first-degree murder after deliberation, prosecutors have to prove the suspect intended to harm a specific person or group.

Law enforcement officials argue that it is a necessary tool for them, and oppose the limitations that House Bill 1281 would create.

“In crimes like a drive-by shooting or a vehicle driving into a crowd, the bill would significantly reduce potential sentences merely due to potential victims surviving, and not because the offender’s conduct was any less dangerous,” says Tom Raynes, executive director of the Colorado District Attorneys’ Council. “Colorado must maintain strong accountability for any acts that demonstrate such an extreme disregard for human life.”

According to a statement from the Colorado Association of Chiefs of Police: “These crimes involve the most violent and dangerous conduct — actions showing a complete disregard for human life and often putting multiple people at risk, such as with mass shootings, school shootings and other mass casualty events. Colorado already ranks on the lower end compared with many other states for sentencing on serious violent crimes, and reducing penalties further would send the wrong message about accountability for the most dangerous offenders.”

The sponsors argue that carve-outs in their bill would allow attempted extreme indifference murder charges to be utilized in necessary cases, such as when multiple victims are killed or seriously injured.

“The prosecutors will still have all the tools in the toolbox to prosecute any of the horrific crimes that the statute has been used for,” Carter says. “They’ll still have first-degree murder, they’ll still have second-degree murder, they’ll still have attempt. …But instead of them using a blunt force object with extreme indifference, they will have to use the actual statutes that were created for those specific charges.”

Carter introduced a similar proposal last year with House Bill 25-1206, which would have eliminated the charge of attempted extreme indifference murder. That 2025 bill failed in committee as opponents, including Espenoza, argued that it would erase over fifty years of case law.

“I saw the problem but believed we needed to approach it from a different angle. That’s why I got on the bill this year, to maintain case law, but also create a better pathway to situate extreme indifference in between first-degree murder and second-degree murder,” Espenoza says. “This just says there has to be harm to the bystanders before you charge them with extreme indifference.”

The sponsors say they are hopeful their bill will pass the Colorado Legislature, though the bill has not yet been scheduled for its first hearing with the House Judiciary Committee, and it likely faces a tough road ahead.

“I feel more confident about what we’re doing this time,” Carter says in comparison to his 2025 bill. “But it’s still a big bill. It’s still a heavy lift.”