One State Supreme Court's Lazy "Shortcut" Erases Civil Rights

"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. 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."

"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."

The Colorado Supreme Court reaffirmed a rule in its excessive-sentencing jurisprudence that preemptively extinguishes constitutional rights for entire categories of people. The court labels certain crimes as per se grave or serious, which prevents anyone convicted of those crimes from challenging the proportionality of their sentences regardless of severity. Colorado's constitution bans cruel and unusual punishment and requires comparison of offense gravity to penalty harshness when evaluating excessiveness claims. The long-standing per se rule is illogical and effectively erases constitutional protections. Two justices appear ready to abandon that rule. A separate trend in North Carolina raises the burden of proof to an unreasonable standard.

Read at Slate Magazine