In today’s environment of prison overcrowding and sentencing practices that acknowledge this overcrowding, with growing frequency Colorado judges are sentencing offenders to probation. This trend appears to apply to even those offenders who historically would have justifiably been sentenced to prison.
Colorado Revised Statutes section 18-1-102.5 sets forth the “purposes of [the criminal] code with respect to sentencing.” The Legislature directs courts to consider, among other factors, imposition of a sentence that promotes rehabilitation of the offender and “to prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses.” Additionally, the courts have been legislatively directed to consider the financial cost of imprisonment and to balance this cost against the speculative risk that a defendant, if released to the community on probation, will re-offend. Specifically, the Legislature recently amended Colorado Revised Statutes section 16-11-102 to require:
(1.9) Each presentence report shall also:
(a) include the results of an actuarial assessment of the offender’s criminological risks and needs;
(b) Provide sufficient information to allow the court to consider:
(I) Whether the offender is a suitable candidate for a sentencing option that does not involve incarceration or a combination of sentencing options that does not involve incarceration; and
(II) The appropriate conditions to impose if a defendant is sentenced to probation;
(c) Describe the projected costs, if known, that are associated with each sentencing option that is available to the court; and
(d) Set forth the purposes of title 18, C.R.S. with respect to sentencing, as such purposes are described in section 18-1-102.5, C.R.S.
Given the legislative directive, the Colorado Probation Department now attaches the following table to every felony presentence investigation report:
Annual Cost of Sentencing Options Per Offender (FY2010)
Department of Corrections (DOC)
Clearly, this table of costs is not a subtle reminder to a sentencing court of the alleged fiscal costs of incarceration. Of course, this table does not quantify the physical, financial, or emotional costs and losses a victim suffers; nor does it account for the risks the community. From amended section 16-11-102, it seems clear that, as a potential cost-saving measure, the Legislature intends for sentencing courts to consider the alternative to incarceration–probation.
Since the Colorado Legislature wants more sentences to probation (and not the costly incarceration) and the courts seem inclined to now do so, what can be done to insure appropriate sanctions, community safety, rehabilitation, deterrence, and punishment commensurate with the crime?
Colorado law authorizes the imposition of many different conditions of probation, including: a jail sentence; residence in a treatment facility; payment of child support; probation supervision costs; permission to a probation officer to conduct home visits; and even the restriction of travel outside the jurisdiction. The United States Supreme Court has consistently ruled that in exchange for the privilege of probation, these types of reasonable conditions may be applied to probationers.
Since it is the goal of the Legislature to cut costs, and courts are inclined to place more offenders on probation and into the community, paramount considerations must be community safety and whether a probation condition furthers the goals of Colorado Revised Statutes section 18-1-102.5. Given the apparent trend toward more probation sentences, to insure community safety and rehabilitation, sentencing courts should consider the imposition of search terms as a condition of probation. Indeed, the Legislature should enact a law that specifically requires search terms for all probationers.
Search terms are conditions of probation where the probationer provides advance consent to be subject to reasonable searches by law enforcement. The United States Supreme Court has ruled that such searches are lawful, where a court may order a probationer, as a condition of probation, to “submit his … person, property, place of residence, vehicle, personal effects, to search at anytime [sic], with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.” In Knights, the legislative basis of these terms lay in California Penal Code section 1203.1, which permits a sentencing court to “impose and require any or all of the above-mentioned terms of imprisonment, fine and conditions, and other reasonable conditions as it may determine are fitting and proper to the end that justice may be done… and generally and specifically for the reformation and rehabilitation of the probationer ….” Similarly, search terms have been imposed in other states and they have been approved by the United States Supreme Court as a restriction that does not offend constitutional safeguards.
With increasing sentences to probation, and to assuredly promote many of the goals of sentencing set forth in section 18-1-102.5, Colorado sentencing courts should also impose search terms as a condition of every felony. As stated by the United States Supreme Court, “it must be remembered that ‘the very assumption of the institution of probation’ is that the probationer ‘is more likely than the ordinary citizen to violate the law.’ The recidivism rate of probationers is significantly higher than the general crime rate.” Surely, search terms will deter additional crimes by probationers. Faced with the very real possibility of an immediate search of his person, a probationer would be wise to refrain from possession of contraband and other illegal items, including firearms. As the United States Supreme Court has correctly observed, “probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply.”
The privilege of probation is meant to assist an offender in preventing recidivism; search terms would surely promote that goal. “Recent research suggests that more intensive supervision can reduce recidivism… and the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes….”
Requiring search terms as a condition of probation, instead of the use of search warrants does not “interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires. Moreover, the delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create.” Further, “forewarning of a probation search would drastically undermine the supervisory deterrent effect of such searches, and is therefore not required.”
If the Colorado Legislature wants sentencing courts to make fiscal calculations, then why not also compare of the costs of incarceration to the costs of probation with a condition of search terms. Such a condition of probation would in no way increase the costs to the probationer, law enforcement, or the judiciary, but would deter the probationer from recidivating.
In conclusion, “[t]he State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct that an ordinary member of the community.” Including search terms as a standard condition of all felony sentences to probation can assuage the legitimate fears of victims, the community, and even a sentencing court that a convicted felon who granted was the privilege of probation and returned to the community will re-offend.
 Victoria Sharp is a senior deputy district attorney for the Second Judicial District. She has spent most of her career prosecuting gang-related crimes.
 Colo. Rev. Stat § 18-1-102.5(1)(c) (2012).
 Colo. Rev. Stat § 16-11-102 (1.9) (2012).
 See id.
 See Colo. Rev. Stat. § 18-1.3-204(2)(a)(2012).
 People v. Bravo, 43 Cal.3d 600, 607 (1987); State v. Carr, 53 P.3d 843 (Kan. 2002).
 See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (citing Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).
 Colorado already provides for search terms in a much more general way. Colo. Rev. Stat. § 18-1.3-204(2)(a)(XV) authorizes courts to order the defendant to “[s]atisfy any other conditions reasonably related to the defendant’s rehabilitation and the purposes of probation.” Currently, in some limited cases in Colorado search terms are imposed in some jurisdictions or under certain circumstances. For example, all probationers in the First Judicial District are subject to search terms. All Colorado sex offender probationers agree to search terms as do probationers in Denver under gang supervision. A legislative mandate would promote parity among all probationers in all of Colorado.
 United States v. Knights, 534 U.S. 112, 114 (2001).
 Searches of parolees are even more explicitly outlined: “Any inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Cal. Penal Code § 3067(a). The same governmental interests that apply to parolees apply to probationers in equal measure. People v. McCullough, 6 P.3d 774 (Colo. 2000).
 See e.g., Morrow v. State, 715 S.E.2d 744 (Ga. Ct. App. 2011); Minnesota v. Anderson, 733 N.W.2d 128 (Minn. 2007); North Dakota v. Smith, 589 N.W.2d 546 (N.D. 1999); New Hampshire v. Zeta Chi Fraternity, 696 A.2d 530 (N.H. 1997); Ohio v. Gaona, 2011 WL 4688859 (2011); Nowling v. Indiana, 955 N.E.2d 854 (Ind. Ct. App. 2011). Other states, including Colorado, provide for the search of a probationer upon reasonable suspicion that the offender has violated probation. This provision should be altered to allow any law enforcement officer to conduct any reasonable search which is not harassing.
 See Griffin, 483 U.S. at 868; Knights, 534 U.S. at 512.
 Knights, 534 U.S. at 120.
 People v. Ickler, 877 P.2d 863, 866 (Colo. 1994).
 Griffin, 483 U.S. at 875.
 Id. at 876.
 Zeta Chi Fraternity, 696 A.2d at 541.
 Knights, 534 U.S. at 121-22.