Colorado Supreme Court Revised Cruel and Unusual Punishment Analysis

The Colorado Supreme Court in lead case Wells-Yates v. People, and companion cases People v. McRae and Melton v. People has substantially revised the framework in which cruel and unusual punishment allegations are evaluated, generally speaking, in the favor of criminal defendants, although not in an unqualified win.

Some people serving long sentences for minor drug crimes in Colorado will probably have those sentences reduced as a result of these decisions.

The practical effect of this is that severe habitual offender sentences, which were once almost never disturbed under the 8th Amendment, especially for drug crimes, may now have some hope of being overturned as disproportionate and cruel and unusual. 

The official syllabus of the lead case is a good starting point:

The court holds that: (1) during an abbreviated proportionality review of a habitual criminal sentence, the court must consider each triggering offense and the predicate offenses together and determine whether, in combination, they are so lacking in gravity or seriousness as to raise an inference that the sentence imposed on that triggering offense is grossly disproportionate; (2) in determining the gravity or seriousness of the triggering offense and the predicate offenses, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively; (3) not all narcotic offenses are per se grave or serious; and (4) the narcotic offenses of possession and possession with intent are not per se grave or serious. 

The most serious drug offenses (sale and distribution) remain per se grave and serious based upon the high intent threshold and high penalties remaining on the books. Theft is also held not to be "per se grave or serious" in the Melton v. People case.

The key facts in the lead case were as follows:

The prosecution charged Wells-Yates in 2012 with second degree burglary, conspiracy to commit second degree burglary, theft, possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), four counts of identity theft, and three habitual criminal counts. In February 2013, a jury found Wells-Yates guilty of all the substantive charges. Following a bench trial in May 2013, the court adjudicated her a habitual criminal based on three predicate offenses: 

• A 1996 conviction for possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), a class 3 felony; 

• a 1997 conviction for possession of 2 grams or less of a schedule II controlled substance (methamphetamine), a class 4 felony; and 

• a 1999 conviction for possession of 2 grams or less of a schedule II controlled substance (methamphetamine), a class 4 felony. 22 

The court subsequently conducted a sentencing hearing. For each of the eight triggering offenses, it imposed the statutorily required prison sentence—four times the maximum prison term in the presumptive range: 

• 48 years (12 × 4) on count 1, second degree burglary, a class 3 felony; 

• 24 years (6 × 4) on count 2, conspiracy to commit second degree burglary, a class 4 felony; 

• 24 years (6 × 4) on count 3, theft, a class 4 felony; 

• 48 years (12 × 4) on count 4, possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), a class 3 felony;9 and 

• 24 years (6 × 4) on each of the four class 4 felony counts of identity theft (counts 5, 6, 7, and 12). 

The court ordered all of the sentences, with the exception of the sentence on count 7, to be served concurrently. 

In total, Wells-Yates received an aggregate prison term of 72 years: 24 years on count 7, consecutive to all the other sentences. 

(The parties agree that the sentence on count 4 was incorrectly calculated; it should have been 64 years, not 48 years. Possession with intent to sell or distribute 7 grams or less of methamphetamine on the date charged in count 4 was an extraordinary risk class 3 felony, see § 18-1.3-401(10)(b)(XI), C.R.S. (2012); the maximum term of years in the presumptive range for such a felony is 16, not 12, years, see § 18-1.3-401(1)(a)(V)(A), C.R.S. (2019). Therefore, the trial court should have multiplied 16 × 4, not 12 × 4. The basis of count 7 was the sale of the identity documents during Wells-Yates’s first meeting with the agent; the sentence on that count was ordered to be served consecutive to all the other sentences. 23 (the longest of which were the 48-year concurrent sentences on counts 1 and 4).11 She is eligible for parole.) 

(Given the error regarding the sentence on count 4, the parties agree that Wells-Yates should have received an aggregate prison term of 88, not 72, years (24 + 64, instead of 24 + 48)).

The state legislature in Colorado has in recent years dramatically reduced the sentences for drug crimes in a non-retroactive way and this is what gives the ability to reconsider legislative changes that are not retroactive when evaluating proportionately so powerful.

If "Wells-Yates committed the triggering offense of possession with intent on or after October 1, 2013, instead of in 2012, she would have faced a prison sentence of 2 to 4 years, not a mandatory habitual criminal sentence of 64 years." 

The one point upon which criminal defendants do not prevail is that the Colorado Supreme Court holds that proportionality analysis needs to be conducted on charge by charge basis, rather than the aggregate sentence for all charges including whether sentences are to be served concurrently or consecutively. So, they do not consider the total 72 year combined sentence, but only the sentences for each particular offense.

The cases are remand to the trial courts to reconsidering in a much more fact specific way in the face of a much more favorable legal standard.

The prospects of success on remand for these defendants and similarly situated victims of old draconian drug war sentences seems good, although the remedy for an 8th Amendment violation is to reduce the sentence to the highest amount that would not be cruel or unusual, which is still high.