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October 3, 2021

Split Tenth Circuit panel upholds constitutionality of Colorado's indefinite sentencing of sex offender for 37 years

A helpful reader made sure I did not miss the interesting split panel ruling last week by the Tenth Circuit in Wimberly v. Williams, No. 20-1128 (10th Cir. Sept. 29, 2021) (available here). The majority opinion starts by setting out the essence of the case of the panel's ruling:

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.

The federal district court rejected Mr. Wimberly’s arguments, and so do we.  The state trial court provided adequate procedural safeguards when imposing the indeterminate term of confinement, and that term could last anywhere from a single day to the rest of Mr. Wimberly’s lifetime.  The State thus had no constitutional duty to provide a new round of procedural safeguards 24 years into Mr. Wimberly’s indeterminate term.

Judge McHugh dissents, arguing that Colorado functionally subjected the defendant to an unconstitutional form of civil confinement in an opinion that starts this way:

Petitioner-appellant Bruce E. Wimberly has been imprisoned for over 37 years, which is more than a decade longer than the maximum permissible sentence for his underlying crimes.  Over this past decade, Colorado has denied Mr. Wimberly the procedural protections it affords to civil committees in its custody.  The majority sees no constitutional problem with this; but I do. I therefore respectfully dissent.

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 Colorado Sex Offenders Act of 1968 (“CSOA” or the “Act”), which, in a section titled “Indeterminate commitment,” provides that courts “may, . . . 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.” Colo. Rev. Stat. § 18-1.3-904 (emphasis added). In my view, both U.S. Supreme Court precedent and Colorado state law support the conclusion that the CSOA provides for a scheme of criminal commitment, not sentencing.

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 Fourteenth Amendment.

October 3, 2021 at 03:43 PM | Permalink


When you keep a convict beyond his or her prison sentence, what incentive does that particular inmate have to behave toward corrections officer and staff? What would such an inmate have to lose by attacking or killing his or her jailors? What would be the worst that could happen to a civally committed person who kills a guard or staff member when they are already doing a DE FACTO life sentence? Another life sentence under exactly the same conditions that the person is already serving under civil commitment? I'm surprised that more civally committed detainees have embraced the left-wing radicalism of Black Lives Matter, Antifa, etc.? I am especially that Minneapolis's unrest of 2020 resulting from George Floyd's death has not also rubbed off on civally committed detainees at Minnesota's Moose Lake facility. Maybe a few uprisings by civally committed detainees might finally force states to abolish civil commitment for former sex offenders.

Posted by: William Delzell | Oct 3, 2021 8:01:36 PM

I'm really surprised that this kind of sentence could have been given and even more surprised (as is the defendant) that it was not struck down. It is clearly cruel, it is clearly unusual.

It seems that The Constitution is not enforced if it's a sex crime.These prosecutor and judge devils are willing to violate the Constitution at those times. That's not the ways it's supposed to work.

Posted by: restless94110 | Oct 4, 2021 1:00:37 PM

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