Members of the Colorado Supreme Court on Monday gave an unenthusiastic reception to the idea that defendants currently serving life without the possibility of parole for felony murder are subject to cruel and unusual or “grossly disproportionate” sentences.

Felony murder does not require that a person 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. That year, however, lawmakers reclassified felony murder to a lesser offense after hearing testimony from academics, convicted defendants 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.

Now, the justices have agreed to decide whether “evolving standards of decency,” which is the metric for deeming a punishment cruel and unusual, render the pre-2021 lifetime sentences unconstitutional.

“This moment in time shows us that 45 states, including Colorado, do not allow for this exceptionally harsh penalty,” said attorney Gail Johnson during oral arguments on behalf of defendant Wayne Sellers IV. “With no intent to kill, no requirement of participation in a homicide.”

However, multiple justices repeatedly questioned why they should bless a resentencing for an unknown number of felony murder defendants to the current range of 16-48 years, when the legislature itself did not make its change apply retroactively.

“Even if we’re sympathetic to where you’re coming from in that respect, it sort of seems like that becomes us substituting our judgment for the legislature,” observed Justice William W. Hood III. “What’s to stop us from just doing that every time we disagree with the choice not to make it retroactive?”

Colorado Politics previously reported that the sponsor of the 2021 legislation, then-Sen. Pete Lee, D-Colorado Springs, believed he had no choice but to propose a forward-looking change, or else risk the Supreme Court striking down the entire policy for violating the state constitution’s separation of powers.

“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,” said Lee.

Discretionary charging, racial effects

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. Sellers fired his gun, but his bullets did not hit Horne. Another member of the group shot the bullet that killed Horne.

Although the U.S. Supreme Court has declared certain sentences — mandatory life without parole and the death penalty — off limits for specific categories of defendants and offenses, a three-judge panel of the Court of Appeals subsequently decided no such prohibition existed for Sellers’ sentence.

“Sellers cites no case — and we are aware of none — extending the categorical approach to cases not involving the death penalty or juvenile offenders,” wrote Judge Ted C. Tow III in September 2022. “In fact, the Supreme Court has upheld a life-without-parole sentence for an adult offender — even in a nonhomicide case.”

Turning to the state Supreme Court, Sellers’ attorneys argued Colorado’s pre-2021 felony murder law was an outlier, sweeping in more defendants for less severe conduct than in other states. Outside groups also weighed in exclusively on behalf of Sellers, arguing life without parole for felony murder had led to unjust outcomes.

A report from the Colorado Criminal Defense Bar noted prosecutors typically charged defendants with felony murder in addition to another first-degree murder count. Only 10% of first-degree murder cases between 2015-2019 featured a sole charge of felony murder. Of those, 93% of convictions featured defendants of color.

“Under Colorado’s pre-2021 felony murder law, prosecutors did not have to prove ‘intent’ to cause a death,” wrote a collection of groups that included the ACLU Foundation of Colorado and the local NAACP branch. “This wide discretion and reduced burden leaves significant room for cognitive biases to influence felony murder prosecutions, such that charging determinations are necessarily and uniquely guided by subjective judgments of prosecutors about who deserves to die in prison.”

The Spero Justice Center, based in Denver, submitted several statements from defendants convicted of felony murder, some of whom have had their sentences commuted by Colorado governors. Abron “Mustafa” Arrington, who said he was mistakenly identified as participating in a robbery that resulted in death, received a life sentence for felony murder, while the actual killer served 30 years. John E. Lopez, who has been incarcerated for three decades, wrote that he falsely confessed to murder after a coercive interrogation and little understanding of Colorado’s felony murder law.

“These are not stories of people who are inherently evil,” wrote attorneys for the Spero Justice Center.

The Colorado Attorney General’s Office responded that “cherry-picked examples” of allegedly unfair convictions did not make life without parole categorically unconstitutional for all pre-2021 defendants.

“When you look to the court records of those defendants, just like when you look at the court record of Mr. Sellers, these are not innocent bystanders who didn’t have any idea what was going on,” argued Senior Assistant Attorney General Katherine Gillespie. “Mr. Sellers emptied the clip of his magazine in the direction of the victim.”

Dispute over effects of ruling

Justice Carlos A. Samour Jr. asked what the consequence would be of ruling in favor of Sellers. Gillespie responded that the Supreme Court would be invading the governor’s power to commute sentences and there would be a risk that “you will start getting these issues in trial court every time the legislature makes a change.”

Gillespie also questioned the notion that a “national consensus” existed against life without parole for felony murder, arguing states’ laws could not be compared to Colorado’s without detailed analysis. Johnson, however, countered she had done the analysis and Colorado’s pre-2021 law fell outside the norm.

“In Arkansas, the requirement for liability there has to have extreme indifference. Our statute doesn’t have that. In Florida, felony murder applies to the actual killer only. We don’t have that,” she said. “When I say Colorado is an outlier and Colorado is different, it really is.”

The parties further disagreed how broadly a Supreme Court ruling in favor of Sellers would sweep. Gillespie estimated 400-500 cases could be affected, but Johnson maintained a small fraction of defendants — those convicted only of felony murder, with no other charges carrying a mandatory life sentence — would benefit.

“I have some concerns about adopting the ruling you’re asking us to adopt,” Samour said, “because it feels like we’re doing exactly what the legislature said it wasn’t intending to do, which is retroactive application of the amendment.”

On the other hand, Justice Richard L. Gabriel suggested, at some point a uniquely punitive law could become categorically cruel and unusual.

“Let’s say 49 states other than Colorado have said life without parole is always unconstitutional for felony murder, period,” he said. “Would you agree that in that situation, there’s an argument that it’s categorically unconstitutional?”

In the alternative, Sellers is also asking the court to find his sentence “grossly disproportionate” in light of the current penalty, if not unconstitutional.

The case is Sellers v. People.