A judge can hit the gavel and impose a sentence, but how long a person actually serves might be up to other laws or conditions. Proposition 128 would require people convicted of certain crimes of violence to serve at least 85% of their sentence.
Perhaps the simplest way to explain Colorado Proposition 128 is that it would require offenders convicted of certain violent crimes to serve at least 85% of their sentence before being eligible for parole. Today, offenders convicted of some of these violent crimes could be eligible for parole after serving 75% of their sentence. The new 85% law would apply to specific crimes committed on or after Jan. 1, 2025, while those convicted of relevant crimes before Jan. 1, 2025, would still be under the old 75% requirement. Below, find probably the most operationally important paragraph in 128, copied verbatim:
ANY PERSON CONVICTED FOR SECOND DEGREE MURDER; FIRST DEGREE ASSAULT; CLASS 2 FELONY KIDNAPPING; SEXUAL ASSAULT UNDER PART 4, ARTICLE 3 OF TITLE 18; FIRST DEGREE ARSON; FIRST DEGREE BURGLARY; OR AGGRAVATED ROBBERY, COMMITTED ON OR AFTER JANUARY 1, 2025, SHALL BE ELIGIBLE FOR PAROLE AFTER SUCH PERSON HAS SERVED EIGHTY -FIVE PERCENT OF THE SENTENCE IMPOSED UPON SUCH PERSON.
It’s important to note here that current law allows offenders who are eligible for parole after serving 75% of their sentence to also qualify for “earned time,” basically a sentence reduction for meeting various behavioral goals, while the paragraph above from Prop 128 language regarding serving 85% of the sentence does not include an allowance for earned time.
Prop 128 is a citizen-initiated ballot measure, once known as Initiative 112, and proponents gathered enough valid petition signatures to put it on the 2024 ballot. It is a statutory measure, not a Constitutional amendment, and would pass with a simple majority vote.
Why Is Prop 128 On The Ballot?
The language in this initiative is basically similar to Colorado House Bill 24-1127, which was introduced in 2024 but defeated in the House Judiciary Committee on a party-line vote with all Democrats voting in opposition. Republican Rep. Mike Lynch was the prime House sponsor, and only other Republicans signed on sponsors or co-sponsors.
The introduced state bill includes a “legislative declaration” briefly explaining the intent for the bill. In short, it claims that Colorado has the 4th-worst recidivism rate in the nation, and states that Colorado’s violent offenders “re-offend at high rates.”
However, there are a number of other states that either already have or have considered 85% laws. That might make one consider whether there is a national organization pushing legislation, and the American Legislative Exchange Council (ALEC) has disseminated a model bill called the “Truth in Sentencing Act” that includes a requirement of serving 85% of sentences without being eligible for early release. The Colorado bill HB 24-1127 is titled “Truth in Sentencing Parole Violent Offenses.”
The phrase “truth in sentencing” goes back a number of decades, and it was used in the federal “Violent Crime Control and Law Enforcement Act of 1994,” which according to a U.S. General Accounting Office report included “incentive grants to states that have, in general, truth-in-sentencing (TIS ) laws requiring violent offenders to serve at least 85 percent of their imposed sentences.”
The conservative organization Advance Colorado is backing Prop 128, and its report titled “Colorado’s Crime Crisis” includes the same citation that Colorado has the nation’s fourth-worst recidivism rate that’s included in HB 24-1127. It also cited a 2024 study from U.S. News and World Report ranking Colorado as the “third-most dangerous state in the country” thanks to its rates of violent crime and property crime per 100,000 residents (though the crimes listed in Prop 128 are mostly violent crimes and not property crimes). The Advance Colorado report includes stories of criminals who were out on parole and re-offended, and outlines a series of recent state bills that might be considered “tough on crime” that failed, along with state bills that might be considered “light on crime” that passed.
According to the state Blue Book, should 128 pass, it’s anticipated that state spending would increase roughly “between $12 million and $28 million per year” after a period of 20 years due to increased periods of incarceration.
How Is Parole Determined in Colorado?
Colorado has a State Board of Parole, and its stated mission is to “increase public safety by evaluating an individual’s potential for successful reintegration to the community through the use of innovative evidence informed practices.” According to the Board’s most recent annual report, it conducted 10,597 total application hearings for parole during FY 2023 – not necessarily for the type of offenders who might be impacted under Prop 128.
Perhaps the quickest and easiest way to understand considerations for parole would be to visit the Board of Parole’s FAQ page and scroll down to the question “What factors do you consider in making parole decisions?” But in very brief, Board members must consider issues including the risk of re-offense, statements from the victim(s) of the crime, and the offender’s conduct during incarceration. There is a great deal of additional information on the Board’s website, including relevant statutes and reports.
Follow The Money
A committee called Coloradans For Smart Justice has formed to oppose both Prop 128 and Prop 130, and it reported $101,000 in total contributions as of Oct. 15. The main donations included $51,000 from the American Civil Liberties Union (ACLU), and $50,000 from the Colorado Criminal Justice Reform Coalition.
While the organization Advance Colorado is supporting Prop 128, the news outlet Colorado Sun has reported the following about Advance’s role in campaign finance:
“Advance Colorado may be spending directly in support of the measure, activity that wouldn’t show up in the state’s campaign finance system. The nonprofit doesn’t disclose its donors.”
Richard’s Take
I will probably vote against Prop 128. While I do not want violent criminals with the potential to re-offend back in society, today’s criminal justice system already has the option to evaluate each situation and decide when offenders should not be let out of incarceration. Increasing the mandatory percentage from 75% to 85% would certainly keep certain offenders off the street longer, but this arbitrary proposal by itself can’t say a person who has served “only” 75% is likely to re-offend, or that a person who has served 85% won’t re-offend.
Incarceration is expensive for the public sector (that’s our tax money), prison beds are not always plentiful or available in certain areas, and prison is not always the best place to be for people who could live a productive lifestyle on the outside. These are among the main general reasons I’ll probably vote against 128, and why I’m more likely to support reducing sentences or using alternative sentencing to save public costs in case of so-called “victimless crimes.”
But violent crime is not victimless.
That’s why even though I’m probably voting against 128, it won’t break my heart if it passes. Our society has experienced far too much violence in recent years, and 128 is specifically about violent crimes that can kill or maim people, or leave victims and their families in precarious mental states.
I can easily understand some arguments favoring limiting incarceration, including that our law enforcement and criminal justice systems can be unfair to marginalized communities. But marginalized or not, violent crimes are not to be tolerated and potential offenders who are not suffering from serious mental health issues should understand this. If there are reasons why people might not understand that violent crime deserves punishment, then maybe we need to have that conversation with our schools, our media, our political organizations and leaders, or our social services organizations.
I can actually see the possibility that if 128 fails and someone is let out of prison after 75% and then commits a high-profile violent crime, someone might decide it’s worth running an 85% measure again and they will have the basis for quite the TV ad. However, I’d still prefer keeping discernment in our system, since an arbitrary number like 85% does not take into account individual circumstances that might lead to proper determinations that a person no longer needs to be incarcerated.
