Issue 30: Colorado Supreme Court Makes Complete Mess Of Excessive Sentencing Case

October 9, 2024 By Kyle C. Barry

What you’ll read:

  • Spotlight: Colorado Supreme Court Makes Complete Mess Of Excessive Sentencing Case
  • Roundup: Pending state constitutional challenges to LWOP for youth & emerging adults in NH, WY, & MI
  • Illinois Supreme Court: The odor of burnt cannabis is not probable cause to search a vehicle—and neither is driving on Interstate 80
  • Arizona Court of Appeals: Drivers with THC in their blood must actually be impaired to punish them
  • Vacancies & Elections: calls for professional diversity in ConnecticutArizona’s Democratic governor could get three state supreme court appointments; a career prosecutor is confirmed in New Jersey

Colorado Supreme Court Makes Complete Mess Of Excessive Sentencing Case

There are wrongly decided cases, and then there are wrongly decided cases that are so poorly reasoned they’re embarrassing. The Colorado Supreme Court’s ruling last week in a major sentencing case is the latter. With paper-thin analysis that is at turns lazy, incoherent, and circular, the court rejected a claim that life without parole sentences for felony murder—a crime that punishes people for murders they didn’t commit—violates the state constitution ban on “cruel and unusual punishments.” Rather than join the national trend of expanding state constitutional rights against excessive punishment (or at least acknowledging that such rights exist independent of what the U.S. Supreme Court says about federal law), the court rubber-stamped a draconian sentence and sent a disturbing message that it is indifferent to the rights of people consigned to death behind bars.

Life in prison without the possibility of parole (LWOP) is Colorado’s most severe criminal punishment. But the most severe sentence is not reserved for the most serious offenses. Wayne Sellers is serving LWOP for “felony murder” because he committed a robbery during which an accomplice shot and killed someone. That Sellers did not kill anyone did not matter; under the felony murder rule, he was punished as though he had. 

In 2021, the Colorado legislature recognized this injustice and reduced sentences for felony murder to a range of 16 to 48 years.  “The person who did the murder should do the most time,” Gov. Jared Polis said when he signed the law. But that change was prospective only, and it left people like Sellers, who was convicted in 2018, still permanently imprisoned. Given the inherent cruelty of his sentence and the legislature’s subsequent recognition of that cruelty, Sellers challenged his LWOP sentence as a violation of both the 8th Amendment and Colorado’s own ban on “cruel and unusual punishments” found in article II, Section 20 of the state constitution. But rather than seriously engage with Sellers’s claims, the Colorado Supreme Court washed its hands of them, providing only cursory 8th Amendment review and declining to conduct any independent analysis under the state constitution.

I have previously made the case for why state supreme courts should ban LWOP for felony murder, and therefore why Sellers should have won his appeal. Here, though, I highlight just the court’s most egregious errors—the glaring analytical flaws that suggest Sellers never had a real chance to begin with.

Before diving in, I will give the court credit for one thing: It rightly recognized that Sellers sought a categorical rule that felony murder LWOP is unconstitutional, just like, say, executing children is categorically banned. That’s important, because a long line of both state and federal cases have said that courts should review categorical claims under a more exacting legal standard that draws from “evolving standards of decency” and any emerging social consensus toward leniency. Correctly identifying the nature of Sellers’s claim and matching it to the right legal standard is no major accomplishment—especially when that standard is wholly defanged in its application—but it’s something courts routinely screw up. So credit where it’s due.

But that’s about all the court got right, and things go south when it decides how the relevant “standards of decency” apply to Sellers’s claim.

First, the court “found [no] national consensus that a mandatory sentence of LWOP for felony murder for an adult offender is categorically impermissible.” But this exclusive focus on national consensus is odd when a state constitutional claim is at issue. Indeed, in 2019 the Colorado Supreme Court held that the “most valid indicia of Colorado’s evolving standards of decency” are its state legislative sentencing reforms, and that courts must consider such reforms in their excessive punishment analysis. That is of critical importance here given the 2021 felony murder reform, yet the court left that out of its “consensus” review entirely. The court also ignored empirical evidence showing that Coloradoans overwhelmingly oppose LWOP for felony murder, with public opinion research showing a mean preference for only 6 years in prison.  It might be different if the court took this national-only approach with just the 8th Amendment before moving on to an independent state constitutional analysis, but (as explained more below) that didn’t happen. 

Worse, the court’s national consensus analysis is itself flawed. Here’s the court dismissing Sellers’s evidence that felony murder in other states results in less severe punishment:

The implication is that only court decisions specifically banning LWOP for felony murder are relevant. But that’s not how consensus works. While such decisions would help, the court should have also weighed “the applicable statutes” that do “not allow for the imposition of an LWOP sentence for felony murder.” As it turns out, in 2018 Colorado was one of just 10 states with mandatory LWOP for all felony murder convictions, and after its own reform three years ago we’re down to nine. Yet Colorado’s outlier status at the time of Sellers’s conviction goes unmentioned.

Next, the court had to consider whether, in its own judgment, mandating death in prison for felony murder serves any legitimate penological purpose, such as deterring crime, rehabilitating people, or punishing those who are blameworthy. Here, the court apparently agreed or at least assumed that LWOP is a poor fit with these goals, but then compounded its own errors by invoking its (deeply flawed) consensus analysis to say that it doesn’t matter:

Finally, the court suggests that to conclude otherwise—and specifically to impose a categorical ban on LWOP for felony murder—would be unprecedented because Sellers is an adult who isn’t sentenced to death:

This is a remarkable statement for several reasons. First, it seems to conflate applying the “categorical approach” to review excessive punishment claims with actually concluding that a challenged punishment is categorically unconstitutional. After all, this very opinion (to its credit!) ostensibly takes a categorical approach to Sellers’s claim, it just does so poorly. But more to the point, the statement is flat wrong. Last year, a panel of the federal Fifth Circuit Court of Appeals held that Mississippi’s lifetime voting ban for people with felony convictions categorically violates the 8th Amendment, and this year the Massachusetts Supreme Judicial Court used the categorical approach to hold that all LWOP sentences for people under age 21 (not just “juvenile offenders”) violate its state constitution. Again, it’s not just that the court gets this case wrong, it’s that the opinion is littered with evidence that it barely tried. 

All the court’s analysis is dedicated to the federal 8th Amendment. The state constitution gets only three terse reasons why it doesn’t change anything:

Let’s take each in turn. First, the court said that, “[t]o date … we have not interpreted article II, section 20 of our constitution to provide greater protection than the Eighth Amendment.” That is more of an excuse than an actual reason to not even grapple with Sellers’s claim. It’s also not entirely true. As noted above, the court in 2019 held that sentencing reforms must be considered as evidence of Colorado’s “evolving standards of decency,” creating a state-specific rule that strengthens excessive punishment claims and that does not exist in federal 8th Amendment case law. 

Next the court notes that “we [have not] interpreted article II, section 20 to conclude that an adult’s LWOP sentence for felony murder is categorically unconstitutional”—which, of course they haven’t because that was the very issue in this case. If the court had previously made that ruling then Wayne Sellers would already have a new sentence. It’s completely circular logic with no real analysis. 

Finally, the court leans on “the unambiguous statutory language mandating an LWOP sentence” before the 2021 reform, and elsewhere emphasizes the “clear legislative declaration applying the reclassification of LWOP only” prospectively, to offenses committed after its enactment. Again, this merely begs the question to be answered, as the pre-2021 statute is why this constitutional challenge exists. But much worse, the court was well aware that the reform’s lead sponsor, State Rep. Pete Lee, offered a limited prospective law only because of legal advice warning that a broader bill might intrude on the governor’s clemency power and violate separation of powers.

“Yes, of course I believe the Supreme Court should correct the manifest injustice of the disproportionate sentencing in these cases,” Lee told Colorado Politics. “It was my initial goal to do so. But because of my understanding of the separation of powers doctrine, non-partisan staff wrote the bill to apply the bill prospectively.”

The good news, I suppose, is that the opinion in Sellers is so unpersuasive that other courts are unlikely to follow it. And that’s important, because this very issue is also before the Pennsylvania Supreme Courtwhich hears argument today, October 8, on whether LWOP for felony murder violates its state constitution’s ban on “cruel” punishment. When that court reads Sellers, as it inevitably will, it should immediately file to: “how not to write a judicial opinion.”


Roundup: Pending State Constitutional Challenges To LWOP For Youth & Emerging Adults

In 2001, two teenagers murdered a pair of married Dartmouth professors with the absurd plan to steal their ATM cards, withdraw cash, and start a new life in Australia. They stole $340 and were arrested in Indiana. One of them, age 16, received a 25-year minimum sentence for second degree murder and has since been released on parole. The other, Robert Tulloch, was 17, and he received a mandatory LWOP sentence. At a hearing last month, Tulloch’s lawyers argued that the New Hampshire state constitution’s “cruel or unusual” clause bars all LWOP sentences for youth who are under 18, a categorical prohibition that state courts have applied in WashingtonIowa, and Massachusetts. And at a minimum, they argued, any youth LWOP sentence should require explicit judicial findings that the child is one of the exceedingly rare “incorrigible” people for whom life in prison is necessary—an evidentiary and procedural protection that the Alaska Court of Appeals recently embraced, but that the U.S. Supreme Court rejected under the 8th Amendment. [Concord Monitor | VT Digger]

In Wyoming, the Cowboy State Daily has a feature on Chris Hicks, the now-38-year-old man using the Wyoming state constitution to challenge the life without parole sentence he received at age 19, and his lawyer, University of Wyoming Law Professor Lauren McClane. “McClane’s motion argues that the protections afforded under [to youth] should be extended to people ages 21 and younger given that neuroscience not previously available now shows the age of adult to be much older than originally suggested,” it reports. 

McClane further notes that Wyoming’s Constitution dictates that the penal code be framed around humane principles of reformation and prevention. “Part of what we’re arguing is that none of these justifications are served by sentencing a 19-year-old to life without the possibility of parole, much like they’re not served by sentencing a 17-year-old to life without the possibility of parole,” McLane said.

[Read more about this case in The New Yorker]

The Michigan Supreme Court last month denied review in a case arguing that all youth LWOP violates the state constitution, but other pending cases ask the court to ban LWOP for felony murder convictions, and to extend the state constitutional ban on mandatory LWOP for 18 year olds to people who are age 19 and 20. 


Illinois Supreme Court: The Odor Of Burnt Cannabis Is Not Probable Cause To Search A Vehicle

In light of new laws that decriminalized marijuana possession, the Illinois Supreme Court held under both the state constitution and the federal Fourth Amendment that the smell of burnt cannabis, without more, does not give police officers probable cause to search a car. The court also noted that state supreme courts in other states that have reformed marijuana laws—including Minnesota, Pennsylvania, and Massachusetts—have reached similar holdings:

Also, if you’re not yet convinced that police officers will try to turn anything into evidence of a crime, behold the officer’s attempt to justify his search in this case:

[Full opinion | Chicago Tribune]

Related: The Arizona Court of Appeals ruled last week that drivers must be actually impaired, and not just have THC in their bloodstream, to be punished for DUI. “This reinforces our understanding of the voters’ intent, expressed through their enactment of Proposition 207, that unimpaired driving after consuming marijuana cannot be penalized,” the unanimous three-judge panel wrote. [Full Opinion | AZ Mirror


Vacancies & Elections 

Connecticut: Raheem Mullins is Connecticut’s new chief justice after the legislature’s Judiciary Committee approved his appointment last week. The elevation of Chief Justice Mullins, who has been on the state supreme court since 2017, creates a vacancy for Gov. Ned Lamont to fill. In August, a coalition of state and national organizations called on Lamont to name someone who adds professional diversity to a state bench dominated by corporate lawyers and prosecutors. “When courts do not reflect the diversity of the people they serve and our nation at large, the credibility in our justice system suffers,” they wrote.

New Jersey: The state senate last week unanimously confirmed former state Attorney General and career prosecutor John Jay Hoffman to the state supreme court. Hoffman, a Republican, maintains the court’s tradition of partisan balance, with a one-seat majority for the sitting governor’s party. The court is now 4-3 Democratic. 

Arizona: Democratic Gov. Katie Hobbs could soon have three appointments to Arizona’s conservative, seven-member state supreme court. Justice Robert Brutinel is retiring, and Justices Clint Bolick and Kathryn King face organized opposition to their November retention (“yes or no”) elections for new terms. Both Bolick and King were in the 4-2 majority that upheld Arizona’s 1864 criminal abortion ban[Eastern Arizona Courier]