As the Colorado Supreme Court sits down on Monday to decide whether defendants convicted of felony murder prior to 2021 should receive new sentences less severe than life without the possibility of parole, a key legislative change will play a prominent role in the legal analysis.

However, according to the lawmaker who led the effort to abolish life without parole for felony murder defendants going forward, the government’s opposition to extending relief to those already incarcerated rests on a flawed understanding of what the legislature did three years ago.

Felony murder does not require a person to kill the victim themselves. Instead, a defendant can be guilty of felony murder when they participate in certain serious crimes, such as robbery or sexual assault, and someone dies as a result. Prior to 2021, felony murder was the highest classification of felony, punishable by life in prison without parole.

But that year, the legislature enacted Senate Bill 124. The measure reclassified felony murder to a lesser offense after hearing testimony from academics, advocates and even prosecutors that it was unjust to continue mandating the harshest punishment available in Colorado for someone who did not actually pull the trigger or intend for the victim’s death.

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Because lawmakers only applied the change to felony murder convictions going forward, the Supreme Court has elected to answer whether defendants already serving life sentences for felony murder are entitled to reduced sentences — either by finding life without parole categorically unconstitutional or that the sentence is now “grossly disproportionate” in light of current law.

For the Colorado Attorney General’s Office, which opposes the attempt of Wayne Sellers IV to seek a resentencing for his 2019 felony murder conviction, the fact that lawmakers did not extend SB 124 to him and similarly situated defendants was enough to foreclose any relief to their existing lifetime sentences.

“Sellers’s claim that the 2021 change was ‘obviously made’ because the legislature determined that LWOP sentences for felony murder were cruel and unusual punishment is refuted by the fact the changes are not retroactive,” wrote Senior Assistant Attorney General Katharine Gillespie. “If the legislature believed that to be true, it had the authority and knowledge to make the reclassification retroactive.”

Former Sen. Pete Lee, D-Colorado Springs, who sponsored SB 124, told Colorado Politics the government’s argument did not reflect the reality of why existing felony murder defendants were excluded from the change.

“Had I thought the legislature could make the change in the felony murder law retroactive to impact previously sentenced individuals, I would undoubtedly have done so,” he said.

Lee disclosed the existence of a memorandum from the nonpartisan Office of Legislative Legal Services, which Sellers’ attorneys also submitted to the Supreme Court, describing the way criminal sentencing authority is divided among the branches of government by the Colorado Constitution. Specifically, the governor has the power to grant “reprieves, commutations and pardons after conviction.”

“The Colorado Supreme Court has consistently interpreted this provision as resting the power to commute a sentence solely in the prerogative of the Governor and prohibiting either the judicial department or the legislative department from reducing punishment from a greater to a lesser sentence, after the sentence becomes final,” the December 2014 memo noted.

The document went on to cite the Supreme Court’s 1973 decision of People v. Herrera, in the wake of the General Assembly’s extensive revamp of the criminal code. The court concluded any attempt by the judicial branch to commute a sentence after it is final — even if the legislature grants the authority — would run afoul of the governor’s power.

The government’s argument to the Supreme Court in Sellers’ appeal did not mention Herrera or the 2014 memo. Instead, Gillespie repeatedly noted the legislature deliberately chose not to give current defendants the benefit of a sentence less severe than life without parole.

Lee, however, emphasized the legal guidance he received from legislative staff and the possibility of his bill being declared unconstitutional across the board dissuaded him from expanding relief to defendants like Sellers.

“Yes, of course I believe the Supreme Court should correct the manifest injustice of the disproportionate sentencing in these cases,” he said. “It was my initial goal to do so. But because of my understanding of the separation of powers doctrine, non-partisan staff wrote the bill to apply the bill prospectively.”

An El Paso County jury convicted Sellers for the 2018 murder of Kenyatta Horne. Sellers was part of a group that intended to rob drug dealers the night of the shooting. Although Sellers fired his gun, his bullets did not hit Horne. Another member of the group shot the bullet that killed Horne.

Several outside organizations have weighed in to the Supreme Court, urging the justices to find that Sellers and other non-triggermen convicted before SB 124 are entitled to resentencing, with a maximum of 48 years under the current law.

Life without parole, wrote seven criminal law professors, “is the most severe sentence available under Colorado law. Yet it is being applied to persons convicted of crimes that cannot be considered among the most blameworthy.”