Issue 38: The Lazy “Shortcut” Erasing Civil Rights in Colorado
Plus: Michigan Supreme Court holds that sex offender registration is "punishment"
What You’ll Read:
The Lazy “Shortcut” Erasing Civil Rights in Colorado: Two Justices Finally Question Colorado’s Illogical & Blatantly Unconstitutional Approach To Excessive Sentence Review
Michigan Supreme Court Upholds Sex Offender Registration Law For Now, But Holds It Is “Punishment”
Vacancies & Appointments: Kansas Chief Justice Announces Retirement
The Lazy “Shortcut” Erasing Civil Rights in Colorado
It can be astonishing, and more than a little depressing, to see the lengths some courts go to avoid upholding basic constitutional rights. In June, I wrote about how the North Carolina Supreme Court’s Republican majority dilutes civil rights by requiring claimants to prove that challenged state actions, including discriminatory laws, are “unconstitutional beyond a reasonable doubt.” The problem, as liberal Justice Anita Earls pointed out, is that “either the statute is consistent with the constitution or not,” and the “notion that you have to somehow establish that beyond a reasonable doubt makes no sense”—except, of course, as an excuse to erode civil rights.
Today, I bring your attention to the Colorado Supreme Court, which last week reaffirmed an inexplicable quirk of its excessive sentencing jurisprudence that preemptively extinguishes constitutional rights for entire categories of people. The Court declares certain crimes to be “per se grave or serious,” which in practice means that no one convicted of such crimes can ever challenge their sentence, no matter its severity. The longstanding rule is both wholly illogical and blatantly unconstitutional (in the sense that it erases constitutional rights), but there is some good news: It appears that two justices are finally ready to, in their words, “deep six this concept.”
Colorado’s state constitution prohibits “cruel and unusual” punishment, including excessive or “disproportionate” prison terms. To assess excessive punishment claims, Colorado courts begin by comparing “the gravity or seriousness of the offense to the harshness of the penalty.” Normally, Colorado case law takes a relatively capacious view of how a crime’s “gravity” should be measured. It accounts not just for the offense and its elements but also for potentially mitigating factors such as whether the person “was an accessory, complicitor, or principal,” along with the person’s “culpability and motive.” In theory, this definition captures how personal characteristics (such as youth, disability, or addiction) and other circumstances (such as the role of group dynamics, poverty, or coercive relationships) might reduce someone’s culpability and factor into the constitutional analysis.
But for some offenses, the Colorado Supreme Court—and only the Colorado Supreme Court—has devised what it calls “the ‘per se’ shortcut.” Under this rule, the Court “designate[s] certain crimes ‘per se grave or serious,’” which, the Court says, renders a sentence all but “impervious to attack on proportionality grounds.” In other words, the Court’s justices have decided they will not do their jobs for people who have certain convictions. Rather than actually assess excessive punishment claims in light of all the factors the law requires, they will just assume that these claims fail, giving prosecutors and legislators free rein to pursue the sort of punitive excess that has fueled mass incarceration for decades.
And it’s not like this rule has been reserved for what might intuitively be the most violent, high-culpability crimes. Robbery, for example, remains “per se grave or dangerous” even though the circumstances under which robberies take place vary wildly, as do the characteristics of the people who commit them (more on that below). Even worse, for nearly 30 years Colorado courts put all drug offenses, including mere possession, on this list until a “clarify[ing]” decision in 2019 finally changed that (it took decades for the Colorado Supreme Court to realize that it “makes little sense to automatically treat the sale of a large quantity of cocaine by the leader of a drug cartel as equally grave or serious as the mere possession of a very small quantity of cocaine by a drug addict who is not involved in sale or distribution.”).
The Court concedes that this “shortcut” is “unique to Colorado law” and that it “eliminates a longstanding layer of due process for criminal defendants.” Nonetheless, it remains on the books because it supposedly “saves time” and promotes “consistency.” I would submit that “saving time” is never a good reason to dispense with constitutional rights, but the Court’s claims to efficiency are dubious in any case. Now, instead of properly analyzing its cruel and unusual clause, the Court spends its time hopelessly trying to figure out wtf “per se grave or serious” actually means and what offenses it applies to. With this rule in place, and with prosecutors thirsty to invoke it, the first part of every excessive punishment analysis turns into Tom Cruise cross-examining Jack Nicholson in A Few Good Men: “Q: Grave Danger?” A: [raises eyebrow] “Is there another kind?”
But there is a glimmer of hope. In People v. Kennedy, decided last week, Justices Carlos Samour and Richard Gabriel “specially concurred” to advocate nixing the per se grave or serious shortcut.
In Kennedy, the Court stood by its shortcut and upheld the 24-year prison term at issue. But it also held that vehicular homicide-DUI is not “per se grave or serious” because it is a strict liability crime with no specific intent element. “When a crime requires no proof of mens rea,” the Court said, “it is impossible to evaluate the culpability of defendants convicted of the offense under every factual scenario.”
It is good that the Court declined to expand the shortcut to cover a new offense, but the analytical problem here is that the same reasoning applies to crimes that do require proof of intent. To use an example mentioned above, the Court thinks that people who commit robbery have sufficiently high culpability “under every factual scenario”—a conclusion that can only be understood as the willful ignorance of reality. Just a few other facts one might want to know: How old is the person? Are they a youth or emerging adult under age 25, and therefore more susceptible to peer pressure and impulsive decision-making? Was the person coerced by an abusive partner or authority figure? Did the person use a weapon and if so what kind? Was it a gun that turned out to be fake? Did the person act out of desperation? Was anyone physically harmed? The list goes on. To say that virtually no punishment could be unconstitutionally severe for all robbery convictions across all factual scenarios is absurd.
Justices Samour and Gabriel, at least, have started to push back. They argued that “easier and faster isn’t always better,” and that such “superficial proportionality review” is inappropriate when constitutional rights are at stake. Ultimately, they found “the drawbacks of per se designations far outweigh any purported benefits.”
Of course Samour and Gabriel are right, but I’d add another critique: This constitutional “shortcut” makes absolutely no sense. Recall what it is ostensibly a shortcut to: comparing the gravity and/or seriousness of a criminal offense (including, per Colorado case law, characteristics of the offender) with the severity of the punishment imposed for it. In this context, neither “grave” nor “serious” is a bright-line, binary category. They exist along a spectrum. There is no being “not serious” up to a point before falling over a line into “seriousness.” This isn’t bankruptcy. This is a test about whether certain prison terms are too severe; one would think or at least hope that the Colorado Supreme Court is not perfectly fine with incarceration for wholly unserious crimes. To say that an offense is automatically “serious” or “grave,” therefore, means absolutely nothing, and it certainly doesn’t help understand if the resulting criminal punishment is fair.
What the Court must mean, then, is that some crimes are sufficiently serious, but that only makes sense relative to the punishment imposed—a fact irrelevant to the Court’s per se designation.
Perhaps I am thinking too hard about this. Such an arbitrary, court-created rule—born out of some combination of cowardly deference to extreme punishments and sheer laziness, and that even prosecutors agree is “a weird concept anyway”—doesn’t deserve that much credit. The point is: The Colorado Supreme Court’s rule, it turns out, is less a shortcut and more a barrier to protecting fundamental constitutional rights that should be torn down. [People v. Kennedy]
Michigan Supreme Court Upholds Sex Offender Registration Law, But Holds It Is “Punishment”
In some cases, whether state-imposed sanctions constitute cruel and/or unusual punishment depends on whether courts find that they are “punishment” in the first place. Prosecutors and state legislators have successfully shielded even some of the most onerous and life-altering consequences of criminal convictions from excessive punishment review by claiming that, rather than “punitive,” they are merely “civil” or “regulatory” in nature. These include myriad collateral consequences that exclude people from employment, housing, and voting, along with public criminal registration and even indefinite incarceration.
State courts can do more to prevent this, as the Michigan Supreme Court showed on Friday. In People v. Kardasz, the Court held that Michigan’s Sex Offender Registration Act (SORA)—which in some cases requires lifetime public registration—constitutes punishment and is therefore subject to the state constitution’s relatively expansive limits on “cruel or unusual” punishment. This followed a 2024 decision, People v. Lymon, holding that SORA is unconstitutional cruel or unusual punishment as applied to people without any sex-related convictions (a disturbingly common thing).
While the Court upheld SORA in this case (i.e., declined to find that it is cruel or unusual), Kardasz further erodes the legal fiction that some punishments are in fact not punishments at all, no matter how harsh or cruel. It is also another important example of the Michigan Supreme Court using social science and other empirical evidence to test sanctions against their stated purpose. Here, the Court found that SORA is not reasonably related to its purported “civil” purpose of “preventing and protecting against the commission of future criminal sexual acts.” In other cases, the Court has relied on scientific evidence to, for example, prohibit mandatory LWOP for people under 21. That is a promising trend, and other courts should take note. [Read the Full Opinion in People v. Kardasz | Coverage In State Affairs]
Vacancies & Appointments
Kansas Chief Justice To Retire: Kansas Supreme Court Chief Justice Marla Luckert, who was appointed to the Court by Republican Governor Bill Graves in 2003, will retire early next year. The vacancy gives Democratic Governor Laura Kelly an appointment and will push the Court to a 6-1 Dem-appointed majority. In August, though, Kansas voters will decide whether to maintain the current appointment process or switch to partisan elections.