I can’t believe we’re having this argument
The theme of this week was to accept nothing as a given. Basic precepts of the rule of law are totally uncertain, now, more than ever. Here are some highlights of our week at Vanguard Justice, April 27-May 1, 2026.
Monday, April 27. We respond to the AG’s Office’s absurdity.
We responded to the Colorado Department of Corrections’ motion to dismiss in Raibon v. Stancil, et al., El Paso County District Court Case No. 2025CV32679. For background, Mr. Raibon has been in jail or prison for about 38 years. He was seventeen at the time that he was charged as an adult with first-degree murder.
In 2016, the Colorado legislature enacted a series of sentencing reforms designed to roll back extremely punitive 1990s era laws prompted by the “super predator” narrative that swept the nation. This narrative described kids—especially Black children—as evil, out of control, and irredeemable.
The 2016 reforms targeted two aspects of juvenile sentencing: First, they converted the sentences of kids who got life without parole sentences between 1990 and 2006, when Colorado made the sentence for a class 1 felony mandatory life without parole. After this legislative change, youths who were serving mandatory life without parole sentences were resentenced to between 30 and 50 years.
Second, the 2016 reforms made it so that every juvenile—even those convicted of a class 1 felony—became eligible for earned time. Earned time is a time of sentence credit for “good” behavior (like making your bed omfg) that reduces the total length of your sentence if it is “determinate,” meaning you were sentenced to a maximum number of years in prison. For both “determinate” and “indeterminate” sentences, earned time also brings down a person’s parole eligibility date, which is the date on which someone is allowed to begin applying for discretionary parole (meaning the parole board doesn’t have to let them out, but they’re allowed to at least ask).
After the 2016 reforms, the Colorado Department of Corrections (“CDOC”) apparently took the position that these earned time reforms were not meant to apply to people whose date of offense was before July 1, 1990, even though the statute literally says:
An inmate imprisoned to a life sentence for a class 1 felony committed before July 1, 1990, or on or after July 1, 2006, who was convicted as an adult...may be eligible for parole after the inmate has served at least forty calendar years, less any earned time granted...
So, the Colorado Criminal Defense Bar asked the Colorado Attorney General’s Office (CDOC’s lawyers) to address the issue. On January 26, 2017, a lawyer for the AG’s Office named Jennifer Kemp issued a memo that concluded, “Pre-July 1, 1990 [people]* sentenced as adults to life imprisonment are eligible for earned time.”
*The legal system is constantly using the word “offenders” to describe people who have been convicted and sentenced. They are in fact people, and so I always change the language to make that clear.
Our client Elliott Raibon (“Javay”) is a “pre-July 1, 1990” person, and so back in 2017, CDOC finally awarded him earned time like the 2016 legislative changes ordered. But, they withheld a number of years of credits that Javay should have gotten (by that point, he’d been in prison almost 30 years), and so he worked with prison staff to try to correct the issue. Not only did they refuse to fix the problem, in retaliation for his complaints, they took every single day of his earned time. This resulted in Javay’s parole eligibility date (again, this is the date he can ask for parole—not the date on which he’d definitively be let out of prison) being pushed back to forty years from the date of his conviction, without any time credits at all.
We filed a lawsuit asking the El Paso County District Court (where CDOC headquarters is located) to order CDOC to award Javay the earned time that the statutes plainly say he’s entitled to, and which the AG’s Office told CDOC to give to Javay and anyone similarly sentenced back in 2017. We also seek compensation for CDOC’s violation of his constitutional rights, causing him to be denied the opportunity to apply for parole after he’s spent almost 4 decades in prison.
I’ll admit that this was the exceptional case where I quite sincerely believed that once a lawyer got involved, we’d get this sorted and settled. Somehow, after all these years of litigating cases against government lawyers who are working on the taxpayer’s dime and know that the courts will always have their backs no matter how lazy, incoherent, and mean they may be, I still thought that with a memo from their own office effectively saying that what CDOC is doing to Javay is wrong, they would not fight us. Let me never cease to be amazed.
Once the AG’s Office got involved in Javay’s case, they filed a motion to dismiss his case saying that only people whose dates offenses were between July 1, 1990, and July 1, 2006 are eligible for earned time. In response to this motion, I had a phone call with the lawyer who’d filed it, Abigail Smith, to make sure that I understood correctly that she was arguing that even though the statute specifically applies to people whose dates of offenses were before July 1, 1990, the AG’s Office’s position now is that the statute only applies to them if their dates of offenses were after July 1, 1990. Abigail responded that I understood the argument exactly.
Then I asked her another question: Why? I specifically wanted to know why they were doing this to Javay. What interest could it possibly serve to make a facially absurd argument to prevent a man who was 17 at the time of an offense he maintains he did not commit and who has spent 38 years incarcerated from seeing the parole board? And then I told Abigail that it is just plain mean to do what they’re doing.
When I said she was mean, Abigail laughed. I know this laugh. This is the laugh of people with power who do not understand that the decisions that they make from the comfort of their offices, and the words that they write on a computer and submit to a court via an electronic filing system, have actual, real consequences for PEOPLE. As a consequence of the decisions that the Abigails, Jennifers, Marks, Evans, Chrises, Nicoles, Jims, Kathryns, and Jacquis of the world make, people become separated from their families, they develop illnesses and injuries (physical and mental), and they sometimes even die. The joke that Abigail expected me to be in on is that the people this happens to are not like “us,” and therefore do not deserve to have someone stand up for them with the sincerity and commitment it requires to actually mean it to call another lawyer cruel.
But I did mean it. This is sadistic. And that’s why I called Abigail’s argument in court absurd. Because it is. I certainly cannot control whether the court will choose to also be absurd, but I can tell the truth like I see it, and so that’s what we did this week, for Javay.
Thursday, April 30. The Colorado Court of Appeals does gymnastics to protect lawbreaking prosecutors.
Last year, we filed a lawsuit asking for a declaratory judgment (a court order finding that someone’s rights were violated) finding that the Denver DA’s Office had violated our client’s rights to due process and separation of powers (between the executive and the judicial branches) when it prosecuted her in violation of the Rules of Criminal Procedure and Colorado’s speedy trial statute. We also asked for an injunction that would prohibit the DA’s Office from continuing to prosecute defendants in accordance with its policy and custom of dismissing and refiling cases outside the bounds of the Rules of Criminal Procedure and in violation of the speedy trial statute.
Substantively, the case has to do with something the DA’s Office routinely does called “down filing” (it also happens in cases the DA’s Office says it “upcharges”), where it dismisses cases it has already filed and then re-charges the defendant in a different court. This process causes severe delays in cases and systematically violates defendants’ rights, including (as is relevant here) the right to speedy trial. It’s an extremely manipulative and sneaky practice that Denver courts routinely let the DA’s Office get away with, and we’re trying to stop that.
Though the case itself is fairly straightforward, the procedural history that led to the court of appeals’ opinion is not. In short, the DA’s Office filed a confusing motion to dismiss, and the district court issued a confusing order granting that confusing motion to dismiss, and that’s what we appealed. After we filed our opening brief in the court of appeals and clearly explained all the mess-ups below, the DA’s office made a completely new set of arguments in its answer brief, totally ignoring (read: conceding) our arguments in our opening brief.
It’s important to know that there is a rule in appellate litigation that says that if a party did not raise an argument “below” (in the trial court/the court with the first crack at the issues), the appellate court is generally prohibited from considering it. This rule protects a couple of fundamental principles in the US legal tradition. First, it ensures that appellate courts do not turn themselves into primary courts. Second, it protects the principle of “party presentation,” which comes from the idea that lawyers for the parties in a case are best informed about which issues need to be decided by the courts, and how. This is critical because when courts start making up legal issues to rule on without the parties having brought up those issues themselves, they are highly likely to get those issues wrong.
Which leads us to the court of appeals’ opinion issued this week. First, the court held that our client doesn’t have “standing” (the legal right to sue) to ask for an injunction because her claims are not “ripe.” The “ripeness” doctrine says that people can’t sue for things that haven’t injured them yet. This is confusing because our client’s rights were actually violated—it wasn’t something that she sued over because she was afraid that she’d be harmed in the future. She was actually harmed in the past, and yet the court found that she is not allowed to request an injunction that would stop the policy that caused her harm because her claims were based on “speculative” future harm.
Second, the court found that it is “implausible” that our client’s due process and separation of powers-based rights were actually violated. This aspect of the court’s opinion is frustrating (to say the least) for two reasons. The first reason is because this part of the opinion comes from arguments that the DA’s Office raised for the first time in its answer brief on appeal. To even consider these arguments violated foundational principles of appellate litigation. Yet, the court did not even explain why it decided it was empowered to consider these arguments.
The second problem with this part of the court’s ruling is the fundamental principle that prosecutors simply do not have to follow the rules like everyone else does. Essentially what the court of appeals is saying is that there are no rules when it comes to the bounds of prosecutorial conduct, and even when prosecutors go outside of the rules, there’s nothing a defendant can do about it.
The court most clearly revealed its opinion in this regard with one sentence in its opinion:
Likewise, as to whether her injury was to a legally protected interest, Aragon does not explain how the Colorado Constitution includes an implied right of action for due process and separation of powers violations.
This is judge speak for: YOU DON’T HAVE ANY CONSTITUTIONAL RIGHTS IN THIS STATE.
We will, obviously, continue to challenge this ruling in all the ways that are procedurally available but meanwhile, we thought it was important to let you know that if the government violates your constitutional rights, according to the Colorado Court of Appeals, don’t ask the courts for help.
The judge that authored this opinion is Neeti Pawar. She was joined in the decision by Judges Sueanna Johnson and Cristina Gomez.