What You’ll Read:
- The Colorado Supreme Court Is Full Of Prosecutors And It Shows
- Washington Supreme Court reduces public defender caseloads
- Ensuring ‘Felony Murder’ Reform Has Bite, California Supreme Court Orders Resentencing For Accomplice
- ICYMI: The Wyoming Supreme Court suggests “strict scrutiny” should apply to excessive sentencing claims | The nonsense legal standard eroding civil rights in North Carolina
The Colorado Supreme Court Is Full Of Prosecutors And It Shows
The Colorado Supreme Court of late has been a menace to personal liberty and equality, granting more power to police and prosecutors while upholding needlessly cruel criminal punishment. That may be surprising. This isn’t deep red Alabama or Oklahoma. Colorado is a blue state with a seven-member supreme court all appointed by Democratic governors. But mass incarceration has never broken neatly along party lines, and often the better tell is what judges did before they took the bench—the professional experiences and perspectives they acquired as lawyers that they now bring to the cases before them as judges. And in Colorado, five justices are former prosecutors, while all seven are either former prosecutors, corporate lawyers, or both. None is a former public defender.
How this experience translates to judicial outcomes is of course imprecise—though there is empirical evidence that it matters—but consider this string of recent Colorado decisions:
Death-in-prison for “felony murder”: Start with the opinion in October upholding life without parole sentences—Colorado’s most severe criminal penalty—for “felony murder.” That case involved Wayne Sellers, a man convicted of murder because his accomplice during a robbery shot and killed someone; under the state’s then-felony murder doctrine, Sellers was punished as though he pulled the trigger. The legislature has since reduced felony murder’s possible prison terms going forward, but the Colorado Supreme Court allowed previously imposed life terms to stand—failing to enforce the state constitutional ban on “cruel and unusual” punishment. I previously explained how this “embarrassing” and “lazy” decision “sent a disturbing message that [the court] is indifferent to the rights of people consigned to death behind bars.” [People v. Sellers]
Racial discrimination in jury selection: While in theory it is unconstitutional to exclude potential jurors based on race, the U.S. Supreme Court case implementing that rule—Batson v. Kentucky—is largely toothless and does nothing to prevent racial stereotypes and implicit racial bias from infecting jury selection. As a result, some state courts have imposed stricter standards, either through case law or their rulemaking powers. Under a Washington Supreme Court rule, for example, certain reasons for excluding jurors that echo common stereotypes are presumed to be unlawful discrimination, such as that the prospective juror had prior contact with or expressed distrust of law enforcement.
Not so in Colorado. The state supreme court held a public hearing on a similar rule in February 2023, but then did nothing for over two years. On May 29, Justice Carlos Samour finally sent a letter to the court’s Advisory Committee on Rules of Criminal Procedure that largely rejected the rule and instead proclaimed adherence to Batson. “I’m delighted to inform you that we were able to reach consensus,” he wrote, before adding that “we feel duty bound to remain faithful to Batson.” That conclusion is baffling. It is a basic tenet of federalism that state courts are free to impose stronger constitutional rights (or rules of procedure) than what applies nationwide in federal law, yet Justice Samour’s letter reads like the court is wholly unfamiliar with that concept. “We are deeply disappointed by the court’s letter,” said Emma Mclean-Riggs, senior staff attorney with the ACLU of Colorado. “The court can, in fact, approve proposed rules that are more protective of nondiscriminatory jury selection than the federal standard—and it should have done so.” As Colorado Politics noted, the court foreshadowed its conclusion in recent rulings. Last year, the court specifically held that prosecutors could cite jurors’ distrust of police as a “race neutral” to strike them from service. [People v. Johnson | Justice Samour’s Letter]
Search & Seizure: Imagine walking from your parked car to a motel room maybe 60 feet away. With no reason for concern you’re not paying attention to your surroundings, but nearing the door you look up to find a phalanx of police officers in tactical vests. Imagine further that one of these officers asks where you are going, and another asks to pat you down for weapons. Would you feel free to disregard the officers and continue on your way? To say, “nah I’m good,” and turn around to leave? According to the Colorado Supreme Court, any reasonable person would. When Denver police caught Oscar Ganaway in this situation, they found methamphetamine in his pocket. Ganaway later moved to suppress the drugs as the product of an illegal search and seizure, but the state supreme court held that the entire encounter was consensual and therefore no “seizure” occurred. Two justices dissented: “In my view, this was a single encounter in which Ganaway was stopped and searched by the police without reasonable suspicion because he was in the wrong place at the wrong time,” Justice Maria Berkenkotter wrote, joined by Justice Richard Gabriel. “This was a seizure.” [People v. Ganaway]
Parental Rights & Punitive Drug Policy: Drug testing at childbirth comes with myriad pitfalls, from false positives triggered by common foods and medications to stigmatizing parents who struggle with addiction and dissuading them from seeking help. Accordingly, Colorado in 2020 changed its state law so that a “child test[ing] positive” for controlled substances at birth does not automatically trigger a neglect finding—a conclusion that could lead to family separation. Instead, the child must be “affected by alcohol or substance exposure.” The reason for this amendment was clear: “The change in the children’s code is intended to decrease fear and stigma that parents would have in sharing they used substances during their pregnancy, to make it that much easier to get engaged and get involved in the services they’ll need long-term,” Jade Woodard of Illuminate Colorado testified during a legislative hearing. But the Colorado Supreme Court last month turned this new law on its head, finding that “the change in language … reflects a broadening” of the neglect statute (emphasis in the opinion), and holding that a positive drug test is sufficient to find that a child is “born affected by” a controlled substance. Justice Monica Marquez, joined by Justice Samour, dissented. “By deeming exposure alone sufficient to satisfy the affected-by-exposure requirement,” she wrote, “the majority invites the state to intervene in the parent-child relationship—even absent evidence that such exposure has adversely affected the child.” [People in Int. of BCB v. AB & JS]
Wait There’s More: Within the last few weeks, the Colorado Supreme Court also narrowed protections from restitution orders that violate the process and deadlines set forth in state law, and held that people are not entitled to credit for time-served in non-residential community corrections. [Colorado Politics]
Washington Supreme Court reduces public defender caseloads: Speaking of rules from the Washington Supreme Court, the court yesterday issued an interim rule to address the state’s crisis in public defense and substantially lower the caseloads of public defenders. Over 10 years, the rule will lower by two-thirds the number of felony cases that public defenders can carry per year. “The crisis in the provision of indigent criminal defense services throughout our state requires action now to address the crisis and to support quality defense representation at every level,” the court wrote. [Cascade PBS | The full court order]
Ensuring Felony Murder Reform Has Bite, California Supreme Court Orders Resentencing For Accomplice
In 2018, landmark reform legislation substantially narrowed California’s unjust “felony murder” rule. Before then, anyone who committed “an inherently dangerous felony” that resulted in someone’s death could be convicted of first degree murder, even if the person neither killed nor intended to kill anyone. But now if someone is not the actual killer (or an aider and abettor acting with the intent to kill), they must act with “reckless indifference to human life” in order to face first degree murder. This change, the legislature said, serves the “bedrock principle … that a person should be punished for his or her actions according to his or her own level of individual culpability.” The law also applies retroactively, allowing people convicted under the old rule to seek resentencing.
That’s what brought Louis Sanchez Emanuel before the California Supreme Court. In 2012, he and an accomplice set out to rob a marijuana dealer, but during a struggle his accomplice shot and killed their intended victim. Emanuel was unarmed and there was no evidence that he knew his accomplice had a gun. But at the time, Emanuel’s intent to commit robbery was sufficient for a first-degree murder conviction. Challenging his conviction and sentence under California’s felony murder reform, Emanuel argued that the evidence could not support finding that he acted with “reckless indifference to human life.”
Considering “the totality of the circumstances,” the California Supreme Court agreed. Among the relevant factors: Emanuel did not fire or possess a gun; the meetup and robbery occurred in broad daylight on a residential street where witnesses would be present; and Emanuel “attempted to act as a restraining influence,” saying “let’s go” and walking away when the victim initially refused to hand over the marijuana:
The court vacated Emanuel’s murder conviction and remanded for resentencing. And by enforcing the heightened “reckless indifference” standard, the court ensured that the reform law worked as intended and provided a retaining wall against further erosion wrought by prosecutors and lower court judges. [Full Opinion | Cal Matters]
ICYMI
- Wyoming: For the Brennan Center’s State Court Report, I covered oral arguments before the Wyoming Supreme Court in State v. Hicks, a state constitutional challenge to mandatory life without parole sentences for people under age 21. At argument, several justices suggested that rights against excessive prison terms might be “fundamental” and therefore “strict scrutiny”—the most exacting form of judicial review—should apply. [State Court Report | SLRI’s amicus brief in State v. Hicks]
- North Carolina: In Slate and State Court Report, I wrote about the North Carolina Supreme Court’s bizarre use of a strict legal standard to withhold civil rights: requiring claimants to prove that statutes are “unconstitutional beyond a reasonable doubt.” [Slate]