C.R.S.
Section 19-2.5-1118.5
Sentencing
- alternative options for pregnant and postpartum juveniles
- legislative declaration
- definitions
(1)
Intentionally left blank —Ed.(a)
The general assembly finds and declares that:(I)
While no system is perfect in responding to the medical conditions of pregnancy, juvenile facilities are particularly ill-equipped to do so;(II)
During juvenile delinquency cases involving a pregnant or postpartum juvenile, the physical and mental health needs of the pregnant juvenile or postpartum juvenile and newborn must be considered at all stages of the proceeding as a matter of community health and safety;(III)
Timely attention to medical conditions and mental health during the perinatal period can improve health and welfare for multiple generations of a family unit;(IV)
Pregnancy is a time-sensitive process that has many potential outcomes and variations. A pregnant person may feel healthy and experience no complications. A pregnant person may also experience sudden, harmful medical conditions, such as preeclampsia or placental abruption, or develop complex medical conditions that result in the early termination of a pregnancy or threaten the life of the pregnant person, such as an ectopic pregnancy. At any stage of the perinatal period, situations can occur that cause long-term physical and mental health trauma for the pregnant person.(V)
Adjudicatory proceedings are not responsive to the timeline or complexity of the perinatal period;(VI)
When a substance use disorder intersects with a pregnancy, it is best handled as a health condition. Increasing the time a pregnant person with a substance use disorder is in a juvenile facility is counter to public health and may drive the pregnant person away from medical care and support services.(VII)
The end of pregnancy does not immediately terminate the effects of the pregnancy on the person who was pregnant;(VIII)
The postpartum period is an essential time frame for both the person who gave birth and the newborn. It is an opportunity for the newborn:(A)
To develop healthy physiologic responses; and(B)
To benefit from the attachment and bonding that occurs during this period;(IX)
Bonding between a newborn and parent during the postpartum period can improve conditions for other children and care providers in the same family unit and prevent child abuse and neglect; and(X)
Bonding between a newborn and a parent can improve the overall health of the newborn and the parent and may prevent or reduce long-term health risks that may be increased by separating the newborn from the parent. For example:(A)
A postpartum person who does not breastfeed or chestfeed a newborn may have an increased likelihood of premenopausal breast cancer, ovarian cancer, or type 2 diabetes;(B)
A newborn who is not breastfed or chestfed may have an increased likelihood of childhood obesity, asthma, type 1 or type 2 diabetes, leukemia, or sudden infant death syndrome; and(C)
A child who is separated from any parent may experience stress hormones, which may lead to difficulty sleeping, developmental regression, heart disease, hypertension, obesity, diabetes, or decreased life span. A newborn who is separated from a parent may also experience permanent architectural changes in the brain, including a lower intelligence quotient or an increased likelihood of depression, suicidal ideation, or addiction to alcohol or gambling.(b)
The general assembly finds, therefore, that all alternatives to juvenile proceedings, adjudication, and commitment of a pregnant or postpartum juvenile must be considered, including a stay of criminal proceedings or sentencing to reduce the likelihood of negative health and social outcomes for the parent, newborn child, and community.(c)
It is the intent of the general assembly that a person who coerces or extorts a pregnant or postpartum person in the commission of crimes should be subject to being investigated and, as appropriate, prosecuted for a criminal act pursuant to title 18.(2)
As used in this section, unless the context otherwise requires:(a)
“Juvenile” means a person who is under eighteen years of age when the delinquent act is committed and under twenty-one years of age at the time of sentencing.(b)
“Newborn” means a person who has been born and who is less than one year old.(c)
“Postpartum period” means a period of one year after the end of a pregnancy, regardless of whether the pregnancy ends with a live birth.(d)
“Pregnant or postpartum juvenile” means a juvenile who is pregnant or in a postpartum period who has been accused of a delinquent act.(e)
“Stay of execution” means delaying the imposition of a sentence or the commitment portion of the sentence for a pregnant or postpartum juvenile after it is announced by a court.(3)
Intentionally left blank —Ed.(a)
There is a rebuttable presumption against detention and commitment of a pregnant or postpartum juvenile if the juvenile provides the court and district attorney with notice of the juvenile’s status as a pregnant or postpartum juvenile at each applicable stage of the proceedings. Subject to subsection (5) of this section and if the court decides to detain or commit the pregnant or postpartum juvenile after weighing the applicable legal standards and considerations set forth in subsections (3)(a)(I) to (3)(a)(VI) of this section, the court shall make specific findings on the record that the risk to public safety or any other factor the court is required to consider is substantial enough to outweigh the risk of detention or commitment. The court shall apply the rebuttable presumption described in this subsection (3)(a) to a pregnant or postpartum juvenile in determining whether to:(I)
Issue bond pursuant to section 19-2.5-306;(II)
Accept entry into the juvenile diversion program pursuant to section 19-2.5-402;(III)
Accept or continue deferred judgments pursuant to section 18-1.3-102;(IV)
Impose a sentence pursuant to section 19-2.5-1103, including whether to grant juvenile probation pursuant to section 19-2.5-1106;(V)
Impose an alternative sentence pursuant to section 19-2.5-1113; or(VI)
Grant a stay of execution pursuant to this section.(b)
A court shall not use a pregnant or postpartum juvenile’s pregnancy or postpartum period as a basis for imposing a greater restriction on the juvenile’s liberty than a similarly situated juvenile who is not pregnant or postpartum, including circumstances in which a pregnant or postpartum juvenile has a substance use disorder.(4)
Intentionally left blank —Ed.(a)
A juvenile who may be pregnant who is arrested or in custody in a juvenile facility may request a pregnancy test upon or following admission to the juvenile facility. Staff at the juvenile facility shall provide a pregnancy test upon request and allow the juvenile to take the pregnancy test within twenty-four hours after the request.(b)
Requesting a pregnancy test, taking a pregnancy test, and the results of a pregnancy test are confidential medical information. This confidential medical information must not be disclosed to outside parties unless the information is required for the juvenile to receive medical care or to allow staff at the juvenile facility to provide necessary care.(c)
If a juvenile is represented by an attorney in a criminal proceeding and the juvenile facility has a signed medical release from the juvenile, the juvenile facility shall notify the juvenile’s attorney within forty-eight hours, excluding state holidays and weekends, concerning the juvenile’s request for a pregnancy test pursuant to subsection (4)(a) of this section.(5)
Intentionally left blank —Ed.(a)
A pregnant or postpartum juvenile may raise that the juvenile is pregnant or postpartum at any time during adjudicatory proceedings or while serving a sentence. If the pregnancy or postpartum period is raised, the pregnant or postpartum juvenile shall provide notice to the district attorney by providing evidence of the pregnancy or the start of the postpartum period with a limited waiver of privilege. A positive pregnancy test or medical record confirming pregnancy or the end of pregnancy, or a birth certificate of a newborn, is prima facie evidence of pregnancy or the start of the postpartum period.(b)
If the prosecution contests that the juvenile is pregnant or postpartum, the court shall hold a hearing to make a determination as soon as practicable, but no later than fourteen days after the issue is raised, unless the juvenile requests the hearing be held later than fourteen days after the issue is raised. If the juvenile requests a later hearing, the court shall make the determination within the timeline as requested. The court shall hold the hearing immediately if the circumstances of the juvenile or the juvenile’s newborn require it. The juvenile shall prove, by a preponderance of the evidence, that the juvenile is a pregnant or postpartum juvenile.(c)
The court shall protect medical information provided to the court as confidential medical information. A juvenile’s waiver of medical privilege to present medical evidence of pregnancy or the end of a pregnancy in court is limited to information relevant to determine whether the juvenile is or was pregnant and whether the pregnancy has ended.(6)
Intentionally left blank —Ed.(a)
Notwithstanding the provisions of this section, a court shall not:(I)
Set or release the pregnant or postpartum juvenile on bond if the pregnant or postpartum juvenile is ineligible for bond;(II)
Accept or impose an alternative sentence if the pregnant or postpartum juvenile is ineligible for a diversion program, deferred judgment, probationary sentence, or another form of alternative sentence; or(III)
Apply the rebuttable presumption pursuant to this section if a pregnant or postpartum juvenile was adjudicated of a crime of violence, as defined in section 18-1.3-406 (2).(b)
The court shall impose any mandatory sentence required by law on a pregnant or postpartum juvenile, but the court may grant a stay of execution as set forth in subsection (7) of this section.(7)
Intentionally left blank —Ed.(a)
Any pregnant or postpartum juvenile may request a stay of execution by filing a written request to the court if the pregnant or postpartum juvenile is detained or committed in a juvenile facility for any period of time through the end of the pregnancy or the postpartum period.(b)
The court shall hold a hearing to determine the matter as soon as practicable, but no later than fourteen days after the pregnant or postpartum juvenile requests a stay of execution, unless the pregnant or postpartum juvenile requests a later hearing. If the pregnant or postpartum juvenile requests a later hearing, the court shall make the determination within the timeline requested. The court shall hold the hearing immediately if the circumstances of the pregnant or postpartum juvenile or newborn require it. The juvenile shall prove, by a preponderance of the evidence, that the juvenile is a pregnant or postpartum juvenile.(c)
In ruling upon the pregnant or postpartum juvenile’s request pursuant to subsection (7)(b) of this section, the court shall apply the rebuttable presumption set forth in subsection (3)(a) of this section.(d)
The district attorney and the court shall comply with the requirements of the “Victim Rights Act” pursuant to part 3 of article 4.1 of title 24 in any proceeding conducted pursuant to this section.(e)
Following the hearing conducted pursuant to subsection (7)(b) of this section, the court may order a stay of execution of the sentence for any period of time through the end of the pregnancy or the postpartum period. The court shall order a date, time, and place for the juvenile to appear to serve the sentence upon completion of the stay of execution.(f)
If the court grants a stay of execution pursuant to subsection (7)(e) of this section, the court shall order the bond and the conditions of the bond to remain in effect until the date the pregnant or postpartum juvenile is ordered to start serving the juvenile’s sentence.(g)
Notwithstanding this section, a pregnant or postpartum juvenile who is ineligible for bail pursuant to section 19-2.5-306 is not eligible for a stay of execution.(h)
If the pregnant or postpartum juvenile is charged with a new violation or the court receives a verified motion from the district attorney or any agency responsible for supervising the pregnant or postpartum juvenile that establishes a prima facie case that the pregnant or postpartum juvenile has violated the conditions of the stay of execution and presents a substantial risk to public safety, the court shall set a hearing and require the pregnant or postpartum juvenile to appear. After the hearing, the court may end the stay of execution, add new conditions, issue a warrant, or continue the stay of execution.(8)
If a juvenile, who is sentenced to detention or commitment, learns that the juvenile is pregnant following the sentencing hearing, or a postpartum juvenile experiences changes to the juvenile’s postpartum condition following the sentencing hearing, this section does not preclude the pregnant or postpartum juvenile from requesting reduction of the sentence pursuant to rule 35 (b) of the Colorado rules of criminal procedure. During the reconsideration hearing, this section applies.
Source:
Section 19-2.5-1118.5 — Sentencing - alternative options for pregnant and postpartum juveniles - legislative declaration - definitions, https://leg.colorado.gov/sites/default/files/images/olls/crs2023-title-19.pdf (accessed Oct. 20, 2023).
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