Members of the Colorado Supreme Court were divided on Monday about whether vehicular homicide stemming from intoxicated driving is “grave and serious” in every possible scenario, with two justices suggesting the court reconfigure its approach for determining the proportionality of criminal sentences.

The Eighth Amendment’s prohibition on cruel and unusual punishment means sentences cannot be grossly disproportionate to the crime.

When judges in Colorado examine the constitutionality of a sentence, they first consider whether the offense was grave and serious, then assess the harshness of the punishment. The Supreme Court has recognized that, if an offense is “per se” grave and serious — meaning serious in all scenarios — and the sentence is within the authorized limits, it is “nearly impervious” to a challenge.

In a Dec. 15 decision, all participating justices agreed that defendant Kari Mobley Kennedy’s 24-year sentence for killing another driver was within constitutional bounds. However, there was disagreement over whether DUI-based vehicular homicide is categorically grave and serious.

In the majority opinion, Justice William W. Hood III concluded it is not, citing the fact that the crime encompasses defendants who may act with a variety of mental states.

“In reaching this conclusion, we don’t mean to diminish the significance of vehicular homicide-DUI. To state the obvious, the harm is enormous because it necessarily involves death,” Hood wrote. “But that harm alone — no matter how tragic — is insufficient to make the offense per se grave or serious.”

Justice Brian D. Boatright, writing separately, argued that a defendant’s decision to get behind the wheel while intoxicated is necessarily grave and serious when someone else dies as a result.

“Of course, a vehicular homicide-DUI defendant may not have intended to kill the victim in the moment when a crash occurs. But the defendant voluntarily chose to ingest an intoxicant and then drive a motor vehicle, knowing the intoxicant impairs both their judgment and reaction time,” Boatright wrote for himself and Chief Justice Monica M. Márquez.

Finally, two justices addressed a topic that arose at oral argument: Is Colorado’s unique practice of labeling crimes “per se grave and serious” really necessary? Justice Carlos A. Samour Jr., writing for himself and Justice Richard L. Gabriel, suggested it is not.

Although the process of giving certain crimes that designation will speed up judges’ considerations of whether a sentence is constitutionally problematic, “easier and faster isn’t always better,” noted Samour.

Justice Melissa Hart did not participate in the decision. The Judicial Department has provided little insight into her unusual leave of absence, which officially began on Oct. 28. Hart has not participated in three consecutive months of oral arguments and three published opinions, and her whereabouts are unclear.

Kennedy was driving extremely intoxicated in Larimer County when she hit another car head on and killed Benjamin Shettsline. She pleaded guilty to DUI-based vehicular homicide and vehicular assault, with the prosecution and defense agreeing that Kennedy’s maximum sentence for both counts would be 33 years in prison.

Chief Judge Susan Blanco sentenced Kennedy to 24 years for vehicular homicide, plus five years for vehicular assault, citing Kennedy’s prior drunk driving offenses, her repeated bond violations and the danger she presented to the community. Kennedy then petitioned for Blanco to reconsider, alleging the sentence was unconstitutional.

Blanco responded that vehicular homicide caused by intoxication is a per se grave and serious offense because it involves a person’s death. She further concluded the 24-year sentence imposed for the crime was not grossly disproportionate.

A three-judge panel for the Court of Appeals partly agreed. It parted ways with Blanco’s characterization of the vehicular homicide charge, believing it is “not one of those rare crimes” that is always grave and serious.

“By way of example, imagine an individual who exceeds the prescribed dosage of a prescription medication and then crashes a golf cart into an infirm, elderly man thereby causing his death,” wrote Judge Terry Fox. “Now imagine another individual with a history of drinking and driving who intentionally drinks to the point of severe intoxication before driving his car and fatally running over that same man.”

She elaborated that the different ways of committing the same crime weighed against deeming it grave and serious in all circumstances. The panel concluded, however, Kennedy’s particular offense was extremely serious and the sentence Blanco imposed was constitutional.

During oral arguments in September, the justices wondered whether it is wise to continue labeling certain offenses as always grave and serious. The government conceded it is a “weird concept anyway” that made more sense in the context of three-strikes sentences — and less so in Kennedy’s situation, where the same judge who imposed the sentence also reviewed its proportionality.

“One issue with per se analysis is the sentence is gonna be upheld as constitutional in virtually every case,” said Gabriel. “I’m not sure what the harm would be to say, ‘You know what? The defendant has rights here. Make the court go through the analysis to say this is not grossly disproportionate.’”

Hood, in the majority opinion, cautioned that the designation of per se grave and serious “should rarely be used.” Although robbery, burglary and the sale or distribution of narcotics are per se grave and serious in Colorado, the majority declined to extend that label to DUI-based vehicular homicide.

Because the Supreme Court did not take up Kennedy’s appeal with an eye toward eliminating the step of designating crimes per se grave and serious, it did not address that issue. But Samour, in his concurrence, pointed to the lack of agreement about whether Kennedy’s crime merited that label, and argued that a straightforward review of her specific offense was reasonable.

“Those are less challenging considerations that are hardly time-consuming,” he wrote.

The case is People v. Kennedy.