A life sentence without parole does not violate the constitutional prohibition on cruel and unusual punishment for defendants who did not kill the victim personally, the Colorado Supreme Court ruled on Monday.

Prior to 2021, life without parole was the punishment for those convicted of felony murder. A defendant is guilty of felony murder if he participates in certain serious crimes, such as robbery or sexual assault, and someone dies as a result. State lawmakers imposed a maximum sentence of 48 years in 2021, but the change only applied to convictions going forward.

The question for the Supreme Court was whether felony murder is an offense for which life without parole is categorically unconstitutional, including for those sentenced prior to 2021. Justice Richard L. Gabriel, in the Sept. 30 opinion, observed courts had only placed categorical limitations on punishments in cases involving juvenile defendants or the death penalty — neither of which was a factor in the case of Wayne Sellers IV.

“Nor have we found a national consensus that a mandatory sentence of LWOP for felony murder for an adult offender is categorically impermissible. To the contrary, courts in a number of our sister states have upheld LWOP sentences for felony murder for adult offenders,” wrote Gabriel.

University of Denver law Prof. Justin Marceau, who submitted a brief supporting Sellers, said the only relief now available for defendants currently serving life without parole for felony murder is an act of clemency by the governor. He added he was disappointed that the court did not intepret Colorado’s own constitutional ban on cruel and unusual punishments to provide greater protection for defendants.

“I appreciate the legal box the justices felt like they were stuck in for purposes of this case, but a case like this is the embodiment of what persons across the world refer to (as) America’s culture of mass incarceration,” Marceau said.

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.”

While Sellers’ case was on appeal, 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.

The change did not apply to defendants already serving life sentences. Former Sen. Pete Lee, D-Colorado Springs, told Colorado Politics he would have preferred to make the change retroactive, but he feared the Supreme Court would find his entire measure unconstitutional based on its existing precedent. 

Before the Supreme Court, 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.

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.

Gabriel, in the Supreme Court’s opinion, conceded that life without parole potentially fails to encourage rehabilitation, as a defendant will never reenter the community. But that factor was insufficient to deem the punishment unconstitutional.

The court also examined whether Sellers’ sentence was nevertheless “grossly disproportionate” to his offense. Without answering whether felony murder is a serious offense in every situation, the justices agreed Sellers’ particular conduct was serious.

“In this case, the victim died in the course of an aggravated robbery that Sellers helped plan and carry out. Moreover, although Sellers did not personally kill the victim, he fired his weapon at the victim and was an active and willing participant,” wrote Gabriel. His conduct, was “in fact, grave and serious.”

The case is Sellers v. People.