NACDL - Excessive Sentencing Project - Colorado

Excessive Sentencing Project - Colorado

Policies and rulings on lengthy imprisonment terms in Colorado.

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  • Colorado allows for parole. See C.R.S. 17-22.5-403.
  • Colorado allows for mandatory LWOP. Colorado banned JLWOP in 2006, but the ban did not apply retroactively.  Juveniles with a LWOP sentence may, however apply for parole after serving forty years of their sentence. See C.R.S. 18-1.3-401(4)(b) (2010). 
  • Minimum age for transfer of a juvenile to adult court is age 12.
State Constitution

Colo. Const. Art. II, Section 20 (2012)

Section 20. Excessive bail, fines or punishment - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

NOTE:  Article II, Section 20 is the equivalent of the Eighth Amendment. It is not more expansive.

Sentencing Statutes
  • Sentencing Guidelines System – Colorado does not have sentencing guidelines
  • Habitual Offender Statute – C.R.S. 18-1.3-801 (2012). Punishment for habitual criminals
Case law

State Constitution & Proportionality 

Unless the defendant clearly asserts a violation of Article II, Section 20 of the Colorado Constitution, the court will not address the challenge. SeePeople v. Cisneros, 855 P.2d 822 (Colo. 1993);People v. Gaskins, 825 P.2d 30 (Colo. 1992).

As the Colorado Supreme court has not treated Article II, Section 20 of the Colorado Constitution as more expansive than the Eighth Amendment, Colorado courts should look to federal authority for guidance to determine what constitutes cruel and unusual punishment. Pueblo Sch. Dist. No. 70 v. Toth, 924 P.2d 1094, 1099 (Colo. Ct. App. 1996). 

Although the state constitution may mirror the protections of the federal constitution, this does not abrogate the responsibility of Colorado courts “to engage in an independent analysis of state constitutional principles in resolving a state constitutional question.” People v. Young, 814 P.2d 834, 842 (Colo. 1991); People v. Young, 814 P.2d 834, 842 (Colo. 1991).

The following cases mention both Article II, Section 20 of the Colorado Constitution and the Eighth Amendment, but fail to provide any significant, separate analysis of Section 20:

  • People v. Mershon, 874 P.2d 1025 (Colo. 1994) – The Court refused to consider the Colorado Constitutional claim because it was brought improperly.
  • Juarez v. People, 855 P.2d 818, 820 (Colo. 1993) –
  • People v. Coolidge, 953 P.2d 949, 951 (Colo. Ct. App. 1997) –
  • People v. Coolidge, 953 P.2d 949 (Colo. Ct. App. 1997) –
  • People v. Gaskins, 923 P.2d 292 (Colo. Ct. App. 1996) –
  • People v. Nieto, 715 P.2d 1262 (Colo. Ct. App. 1985) –

A mandatory life sentence is not per se cruel and unusual punishment in violation of Article II, Section 20 of the Colorado Constitution. People v. Gutierrez, 622 P.2d 547, 557 (Colo. 1981).

Where a defendant asserts that his sentence is grossly disproportionate to his crime, a proportionality review is required under Article II, Section 20. People v. Mandez, 997 P.2d 1254 (Colo. Ct. App. 1999) (citing People v. Smith, 848 P.2d 365 (Colo. 1993)).

Colorado’s habitual offender statute may be applied in a way that results in excessive punishment, violating the Eighth Amendment and the Colorado Constitution. The habitual offender statute was held unconstitutional as applied to a defendant who pled guilty to two habitual offender counts and one possession of criminal tools count, and received a twelve to fourteen year sentence. People v. Anaya, 194 Colo. 345, 348 (Colo. 1977). The Colorado Constitution does not require mitigating factors to be considered when sentencing habitual criminals. People v. Gutierrez, 622 P.2d 547 (Colo. 1981).  

In Colorado, “proportionality review requires a comparison of the nature and number of offenses committed with the severity of the punishment inflicted upon the defendant.” People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994) (citing People v. Mershon, 874 P.2d 1025 (Colo. 1994)).

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While conducting a proportionality review, courts “should be guided by objective criteria including the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for the commission of the same crime in other jurisdictions.” People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994) (citing Solem).

A defendant sentenced under the habitual offender statute is entitled to a proportionality review. Alvarez v. People, 797 P.2d 37 (Colo. 1990); People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994).

When the defendant has committed grave or serious offenses supporting a habitual offender sentence, only an abbreviated proportionality review is necessary. SeePeople v. Cisneros, 855 P.2d 822 (Colo. 1993). Similarly, when a defendant challenges a life sentence under the habitual offender statute, the defendant is only entitled to an abbreviated proportionality review. Alvarez v. People, 797 P.2d 37, 40-41 (Colo. 1990).

An abbreviated proportionality review requires “a scrutiny of the offenses in question to determine whether in combination they are so lacking in gravity or seriousness as to suggest that a life sentence is constitutionally disproportionate to the crime.” People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994) (citing People v. Gaskins, 825 P.2d 30 (Colo. 1992)). The need for an extended review is rare; an extended review becomes necessary when the felonies supporting a life sentence under the habitual offender statute are “lacking in inherent gravity.” People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994).

The court may consider a subsequently amended criminal statute when considering the proportionality of a criminal sentence. People v. Anaya, 894 P.2d 28, 32 (Colo. Ct. App. 1994).

Leading Court Discussions of Graham and Miller 

Banks v. People, No. 12SC1022, 2013 WL 3168752 (Colo. June 24, 2013) (remand this issue for consideration whether a sentence of a sentence of mandatory life sentence with the potential for parole after forty years violates Miller; whether the court may severe the parole eligibility in Colorado) 

People v. Tate, No. 12SC932, 2013 WL 3323179 (Colo. July 1, 2013) (whether court should resentence or remand under Miller