Kyle Barry

@kylecbarry

Director, State Law Research Initiative (SLRI) ; Formerly @theappeal.bsky.social, NAACP LDF, @afjustice.bsky.social. I write about state courts & dismantling mass incarceration.

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Kyle Barry@kylecbarry· 20d

Babe wake up new Justice Eddins just dropped bsky.app/profile/kyle...

Kyle Barry@kylecbarry· 20d

New from the SLRI newsletter: Drop What You’re Doing And Bask In This State Supreme Court Justice’s Latest Broadside Against The U.S. Supreme Court open.substack.com/pub/slri/p/d...

"The Court overrides what Congress passed.
It overrides what the people chose. All to serve its own ends. What this Court has done to constitutional rights, democratic institutions, and the rule of law explains why Hawaii's Constitution takes no instruction from it," Eddins wrote. A Supreme Court
"that systematically dismantles democratic safeguards, steamrolls constitutional liberties, and tramples human dignity," he said, "does not chart the course for the Hawaii Constitution."

Kyle Barry@kylecbarry· Jun 30

The guys who repeatedly argue that the government is allowed to torture people to death—and to execute people by any means unless those people offer an alternative method for their own death—are now worried that birthright citizenship is “medieval” www.supremecourt.gov/opinions/25p...

Nor should we take the position that our hands are tied by dicta in a sprawling 19th-century opinion that is, to put the point gently, very far from a model of careful judicial craftsmanship. Too much is at stake.
United States citizenship is precious. Anyone who has attended a ceremony where citizens are naturalized can see that message on the faces of those who t le the citizenship
oath. Before saddling the Nation with a medieval rule. we had better be certain the Constitution requires it.

Kyle Barry@kylecbarry· Jun 22

To help clarify muddled law, my new law review article--How To Challenge Excessive Prison Terms Under State Constitutions--charts a taxonomy of legal tests courts have used to used expand rights and details *how* the tests are applied. Here's the abstract & TOC: papers.ssrn.com/sol3/papers....

Abstract
As more state supreme courts expand state constitutional rights against excessive prison terms, we can identify the various components of successful litigation. These include, for example, empirical historical research; a thorough mitigation record; social and neuroscientific evidence to show reduced culpability and the capacity for reform; and an amicus strategy that brings distinct but complementary perspectives.

Another basic but often overlooked hurdle is choosing which legal test or tests to apply. What is the specific doctrine, in other words, that courts use to apply the broader concepts of “cruel” and/or “unusual”? By this I do not mean theorizing what “cruelty” ought to mean or how best to measure it, but rather how current law works in practice. More specifically, as state supreme courts expand rights against excessive punishments under state constitutional cruel and/or unusual punishment prohibitions, what are the legal mechanisms they use to do so?

As it turns out, they are not all the same, and the various approaches can sow confusion. To provide some clarity, I have charted a taxonomy of successful state constitutional excessive punishment claims, with a focus on categorical rulings—that is, court decisions finding that certain punishment practices are necessarily excessive as applied to an entire category or group of people, not just one individual person. This taxonomy breaks down the tests and legal standards courts have used when expanding rights and how they apply to certain arguments and evidence, providing a roadmap for practitioners working to tee-up new or expanded categorical claims.

I. Introduction .................................................................................................................................. 2 II. Expanding Categories That Federal Law Already Protects ................................................... 7 A. State Court Model for Expanding Existing Categories: In re Monschke ....................... 8 III. Using A State-Specific Version of the Supreme Court’s “Categorical Framework” ..... 9 A. State Court Model for the Categorical Framework: Commonwealth v. Mattis ........... 11 B. A Model for Offense-Based Categories: Commonwealth v. Lee ................................... 15 C. Beyond Mattis & Lee: Leveraging the Categorical Framework ...................................... 16 IV. Shoehorning Categorical Arguments Into As-Applied “Gross Disproportionality” Review .................................................................................................................................... 24 A. State Court Model For Applying Proportionality Review to Categorical Claims: People v. Parks ...................................................................................................................... 27 i. Severity of Sentence Relative to Gravity of the Offense ............................................................ 28 ii. Sentences Imposed in the Same State for Other Offenses .......................................................... 29 iii. Sentences Imposed In Other Jurisdictions For The Same Offense ............................................. 30 iv. The Goal of Rehabilitation .................................................................................................... 30 V. Apply Both the Categorical and Gross Disproportionality Tests ....................................... 31 A. State Court Model for Applying Multiple Frameworks: State v. Bassett ...................... 31 VI. Conclusion .......................................................................................…

Kyle Barry@kylecbarry· Jun 18

"Textualists" talk a big game but the Illinois constitution *requires* that *all* punishments restore people "to useful citizenship," yet the state still has LWOP. Today SLRI filed a brief telling the state supreme court to finally enforce this right: state-law-research.org/wp-content/u...

In Illinois, the constitutional right against excessive punishment in Article I, Section 11, is commonly known as the “proportionate penalties clause.” People v. Miller, 202 Ill. 2d 328, 337-38 (2002) (Leon Miller). But this nomenclature captures only half the text. In its entirety, the text states: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. art. I, § 11 (emphasis added). Reducing this explicit rehabilitation requirement to a call for “proportionate” penalties is at best incomplete, capturing only the first clause while ignoring the second. A more accurate name given the second half of the sentence would be the “Reformation Clause.”

Properly understood, the Reformation Clause requires Illinois courts to scrutinize the fit between criminal punishments—including sentencing schemes— and the goal of rehabilitation, invalidating penalties that do not serve that constitutionally-required purpose. Applied here, this means that, at a minimum, the state cannot impose life without parole (“LWOP”)—a punishment that “forswears altogether the rehabilitative ideal,” Miller v. Alabama, 567 U.S. 460, 473 (2012)—on young people under age 21. No court and no legislature can determine at the time of offense or sentencing that a young person is beyond the capacity to change. All available evidence is to the contrary. In effect, then, upholding LWOP for this category of offenders requires pretending that the Reformation Clause does not exist.

Kyle Barry@kylecbarry· Apr 3

"Experts are dubious" that a high-ranking FEMA official was teleported to a Waffle House, according to dead-serious New York Times reporting. www.nytimes.com/2026/04/03/u...

FEMA Official Says He Teleported to Waffle House. Experts Are Dubious.
Gregg Phillips, who is in charge of responding to fires and floods, says the hand of God suddenly and mysteriously moved him to a 24-hour breakfast spot in Rome, Ga.

Kyle Barry@kylecbarry· Mar 26

Here's my write up & analysis for SLRI's newsletter. This could -- and should -- be a seismic shift in judicial review of extreme punishments slri.substack.com/p/special-ed... bsky.app/profile/kyle...

In a groundbreaking opinion that signals a paradigm shift in how courts treat excessive punishment claims, the Pennsylvania Supreme Court today held that mandatory life without parole sentences for “felony murder” violate the state constitution.

Over 1,000 people in Pennsylvania are serving life terms with no chance of release for homicide convictions based solely on their role in some other crime — without any finding that they ever killed or intended to kill anyone. Convicted under the arcane “felony murder” rule, they may have been getaway drivers or lookouts for some other crime that went bad and led to death, and then punished like killers. Under Commonwealth v. Lee, they can now demand a new sentence based on their individual culpability and seek a meaningful chance for release.

Kyle Barry@kylecbarry· Mar 26

Under "felony murder," people who neither kill nor intend to kill are convicted of murder and given mandatory LWOP based solely on their role in some other crime that ended in a death (think getaway driver in a robbery gone wrong). The court finds sentences must be based on individual culpability:

Although the judgment of the General Assembly is entitled to a presumption of constitutionality, it is for our Court, ultimately, to determine whether Section 13 permits the mandatory imposition of a life of imprisonment without parole for second degree murder. We find that the sentencing framework imposing a mandatory sentence of life without parole for second degree murder convictions in all cases, regardless of the culpability and characteristics of the defendant ─ including such as the extent of an offender’s participation in the conduct, and the details of his offense ─ without individualized assessment either at sentencing or through parole, prevents the sentencer from considering whether this harshest of sentences proportionately punishes the offender. Furthermore, this mandatory sentencing scheme runs afoul of notions of individualized sentencing for defendants facing the second most severe punishment after death, and the harshest type of incarceration. Finally, the mandatory nature of the sentencing scheme without individualized sentencing lacks adequate penological justification. Ultimately, we find that the mandatory sentencing scheme for second degree murder poses too great a risk of disproportionate punishment, and, thus, find it to be cruel.

Kyle Barry@kylecbarry· Mar 26

BREAKING: The PA Supreme Court holds that mandatory life without parole sentences for all "felony murder" convictions -- a sentence more than 1,000 people in PA are serving -- violates the state constitution's "cruel" punishment ban. This is GROUNDBREAKING: www.pacourts.us/assets/opini...

CHIEF JUSTICE TODD OPINION No. 3 WAP 2024 Appeal from the Order of the Superior Court entered June 13, 2023, at No. 1008 WDA 2021, Affirming the Order of the Court of Common Pleas of Allegheny County entered December 19, 2016, at No. CP-02-CR-0016878-2014. : : : : : : : : : : : ARGUED: October 8, 2024 DECIDED: MARCH 26, 2026 In this appeal by allowance, we granted allocatur to consider whether a mandatory sentence of life imprisonment without the possibility of parole for a felony murder conviction violates the Eighth Amendment to the United States Constitution or Article I, Section 13 of the Pennsylvania Constitution.1 For the reasons that follow, we determine that a mandatory life without parole sentence for all felony murder convictions, absent an assessment of culpability, is inconsistent with the protections bestowed upon our citizens

under the “cruel punishments” clause of our Commonwealth’s organic charter.2 Thus, we reverse the order of the Superior Court, vacate Appellant’s judgment of sentence, and remand for resentencing. However, as we have done under similar circumstances, we stay our order for 120 days to provide a reasonable amount of time for the General Assembly to consider remedial measures.

Kyle Barry@kylecbarry· Mar 26

“I fully support what I admittedly know nothing about,” said Rep. Mike Rogers, chairman of the Armed Services Committee www.nbcnews.com/politics/con...

Kyle Barry@kylecbarry· Mar 13

Another vivid illustration of how when the right bleats about "civilizational suicide," they are not concerned w/ saving the planet or preventing disease, but care SOLELY about enforcing white supremacy www.nytimes.com/2026/03/13/c...

E.P.A. Moves to Weaken Limits on a Cancer-Causing Gas
The gas, ethylene oxide, plays a crucial role in sterilizing medical devices. But long-term exposure is linked to several types of cancer and other ailments.

The agency’s proposed rule would loosen limits on ethylene oxide emissions from around 90 commercial sterilization facilities across the country. Roughly 2.3 million people live within two miles of these facilities in what are often low-income neighborhoods or communities of color, according to an analysis by the Union of Concerned Scientists, an environmental group.

Kyle Barry@kylecbarry· Mar 6

Also, if you'd like to voice your displeasure to the counsel of record who is fighting to execute Mr. Burton and opposed his petition for a stay of execution, her name is Lauren Simpson, and her contact info is: www.supremecourt.gov/DocketPDF/25... bsky.app/profile/kyle...

Lauren A. Simpson Deputy Attorney General *Counsel of Record OFFICE OF ALA. ATT’Y GENERAL 501 Washington Avenue Montgomery, AL 36130 (334) 242-7300 Lauren.Simpson@AlabamaAG.gov

Kyle Barry@kylecbarry· Feb 25

Hey @espn.com not EVERY U.S. president www.espn.com/olympics/sto...

Videos and photos shared on social media by Trump administration aides showed hockey team members posing for a photograph in front of the South Portico. They walked along the West Wing colonnade where Trump has posted portraits of every U.S. president just steps away from the Oval Office, where they were welcomed by Trump.

abc NEWS
Trump hangs autopen image instead of Biden portrait in presidential photo gallery
Trump has long criticized Biden's use of the autopen.

Kyle Barry@kylecbarry· Feb 24

Correct: theappeal.org/the-lab/expl...

THE APPEAL
About Us
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Despite this far-reaching power, magisterial district judges and most municipal court judges do not need a law degree or membership to the state bar; they only are required to pass a qualifying exam. In fact, only 35 percent of the state's MDJs are members of the state's bar.

Kyle Barry@kylecbarry· Feb 20

Kavanaugh p.1: the court's role is strictly limited to the specific statutory question presented. Kavanaugh p.6: let's wink-nod our way through this since Trump obviously just "checked the wrong statutory box" and we can help him find the right one www.supremecourt.gov/opinions/25p...

Acting pursuant to his statutory authority to “regulate . . . importation” under the 1977 International Emergency Economic Powers Act, or IEEPA, the President has imposed tariffs on imports of foreign goods from various countries. The tariffs have generated vigorous policy debates. Those policy debates are not for the Federal Judiciary to resolve. Rather, the Judiciary’s more limited role is to neutrally interpret and apply the law. The sole legal question here is whether, under IEEPA, tariffs are a means to “regulate . . . importation.” Statutory text, history, and precedent demonstrate that the answer is clearly yes: Like quotas and embargoes, tariffs are a traditional and common tool to regulate importation.

In essence, the Court today concludes that the President checked the wrong statutory box by relying on IEEPA rather than another statute to impose these tariffs.

Kyle Barry@kylecbarry· Feb 17

Yes, this ruling seems very obvious and straightforward, but don't forget that the Colorado Supreme Court (w/ one pending vacancy) is full of former prosecutors with an awful track record slri.substack.com/p/issue-33-t... bsky.app/profile/kyle...

The Colorado Supreme Court Is Full Of Prosecutors And It Shows

The Colorado Supreme Court of late has been a menace to personal liberty and equality, granting more power to police and prosecutors while upholding needlessly cruel criminal punishment. That may be surprising. This isn’t deep red Alabama or Oklahoma. Colorado is a blue state with a seven-member supreme court all appointed by Democratic governors. But mass incarceration has never broken neatly along party lines, and often the better tell is what judges did before they took the bench—the professional experiences and perspectives they acquired as lawyers that they now bring to the cases before them as judges. And in Colorado, five justices are former prosecutors, while all seven are either former prosecutors, corporate lawyers, or both. None is a former public defender.

Kyle Barry@kylecbarry· Feb 17

ICYMI: Ruling that, yes, state constitutional rights actually count, a trial court judge on Fri found that forcing incarcerated people to work or else suffer solitary confinement violates CO's ban on slavery and involuntary servitude--with no "punishment" exception towardsjustice.org/wp-content/u...

V. ORDER 177. WHEREFORE, the Court finds and Orders as follows: The Court grants declaratory relief pursuant to C.R.C.P. 57 and Colorado law. The Court enters a declaratory judgment that Defendants are in violation of the prohibition against involuntary servitude under Section 26, Article II, of the Colorado Constitution. The Court further declares as follows: 1. Plaintiff and the Class have a constitutional right to be free from slavery and involuntary servitude without exception, pursuant to Section 26, Article II. 2. Section 26, Article II prohibits slavery and involuntary servitude in all circumstances, including within Colorado prisons and as applied to those convicted of crimes. 3. CDOC implements policies which as applied compel and coerce work from Plaintiff and the Class, constituting involuntary servitude in violation of Section 26, Article II. 4. CDOC’s unconstitutional coercive policies include: the threat and use of segregation and isolation, including through Removal from Population, Restrictive Housing, Housing Restriction Sanction, Restricted Privileges, and any other sanction that results in isolation in a cell for more than twenty-two hours a day for more than two days (three if over a weekend) for failure to work.

Kyle Barry@kylecbarry· Feb 3

Ur not gonna believe this but DHS shot two people in Portland and then falsely smeared them as gang members apple.news/AeMvL-19yS1S...

But court records obtained by the Guardian reveal a Department of Justice prosecutor later directly contradicted DHS' Tren de Aragua statements in court, telling a judge, "We're not suggesting ... [Niño-Moncada] is a gang member?
An FBI affidavit issued following the incident also suggests that in the previous shooting cited by DHS, Zambrano-Contreras was not a suspect, but rather a reported victim of a sexual assault and robbery. Neither Niño-Moncada or Zambrano-Contreras have prior criminal convictions, their lawyers have said.

Kyle Barry@kylecbarry· Feb 2

The straightforward and unflinching analysis in this Canadian Supreme Court opinion really highlights how the U.S. Supreme Court, in contrast, bends over backwards to be as vengeful and merciless as possible: decisions.scc-csc.ca/scc-csc/scc-...

Section 745.51 effectively authorizes the imposition of a sentence of imprisonment for life without a realistic possibility of parole. This punishment is, by its very nature, intrinsically incompatible with human dignity. It is degrading in nature in that it presupposes at the time of its imposition that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation. Although Parliament has latitude to establish sentences whose severity expresses society’s condemnation of the offence committed, it may not prescribe a sentence that deprives every offender on whom it is imposed of any realistic possibility of parole from the outset. To ensure respect for human dignity, Parliament must leave a door open for rehabilitation, even in cases where this objective is of minimal importance. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society. The intent here is not to have the objective of rehabilitation prevail over all the others, but rather to preserve a certain place for it in a penal system based on respect for the inherent dignity of every individual, including the vilest of criminals. Where the offence of first degree murder is concerned, rehabilitation is already subordinate to the objectives of denunciation and deterrence, as can be seen from the severity of the mandatory minimum sentence for this offence.

Kyle Barry@kylecbarry· Feb 1

Republicans pack the courts whenever they fucking feel like it; it’s completely insane that expanding the US Supreme Court isn’t a core commitment of every Democrat in congress www.nbcnews.com/politics/pol...

Kyle Barry@kylecbarry· Jan 30

Easy to miss given, you know, everything, but Trump is nominating fundamentalist lunatics to the federal bench. They uniformly refuse to say who won the 2020 election, and one said that marriage is not "intended" for people w/ disability. 1/ nominationnotes.substack.com/p/judicial-n...

Kennedy questioned Olson about a statement he made in August 2015 during another sermon. According to Kennedy, “During that sermon, you said that marriage was not intended for all people, including, and I’m going to quote your words, our handicapped friends or our persons with physical disabilities that might prevent the robust marriage that we’re called to.” When asked if he said that, Olson replied that he did. Olson said he was “explaining the meaning of Christ’s words” and that there are various reasons why individuals don’t get married. When Kennedy asked for further explanation, Olson said he was explaining why some people don’t get married, not why people couldn’t or shouldn’t.

Senator Kennedy also asked Olson whether he said — during a Sunday School lecture on August 23, 2015 — that God “has called wives to be subject to their husbands” and to “serve the good of your husband and support his calling.” Olson said that he thinks he recalls saying something along those lines and that he was “describing our church’s understanding of what Christian marriage ought to look like.”

Blumenthal then moved on to another question and asked whether the United States Capitol was attacked on January 6, 2021. All three nominees refused to answer (Lea, this time, because he is a current DOJ employee), and Olson added this: “The January 6 events are a matter of public controversy and debate on how to characterize those.” He said “individuals entered the Capitol, and some of them were charged. And there were cases that arose as a result of those events.” But when pressed by Blumenthal, Olson wouldn’t say the Capitol was “attacked.”

“I am incredulous,” Blumenthal responded. “I am totally disbelieving that nominees for the federal district court will not answer purely factual questions just because you are in fear of — what? If you are so much in fear of answering these questions, how will you have the courage to be a fair and impartial judge who follows the law without fear or favor?”

Kyle Barry@kylecbarry· Jan 28

Want prosecutors willing to aggressively pursue accountability for DHS's unlawful and dangerous tactics? Thank the progressive prosecutor movement. bsky.app/profile/tani...

Nine progressive prosecutors from cities around the country are launching a coalition to assist in prosecuting federal law enforcement officers who violate state laws, one of the prosecutors, Larry Krasner in Philadelphia, said on Tuesday.

The organization, which is called the Project for the Fight Against Federal Overreach, will also include Mary Moriarty, the elected prosecutor in Minneapolis. Its acronym, F.A.F.O., references a slang term for negative consequences, and its formation was spurred by “growing concerns about warrantless entries, unlawful detentions, and coercive enforcement tactics by federal agents,” according to a news release.

Kyle Barry@kylecbarry· Jan 24

He was reportedly also a nurse, the literal Sam Alito archetype for who the Second Amendment protects www.supremecourt.gov/oral_argumen...

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JUSTICE ALITO: Could I -- could I --
could I explore what that means for ordinary
law-abiding citizens who feel they need to carry
a firearm for self-defense?
So I want you to think about people
Heritage Reporting Corporation
Official
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like this, people who work late at night in Manhattan, it might be somebody who cleans fices, it might be a coorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes.

Kyle Barry@kylecbarry· Jan 22

How the fuck are we STILL doing the “officer involved … shooting” thing @nbcnews.com ?? How exactly was the officer “involved”??? I feel like I’m taking crazy pills to even have to point this out.

• NBC NEWS
Border Patrol officer involved in California shooting | Wed, Jan 21

Kyle Barry@kylecbarry· Jan 16

1/ *More* empirical evidence that professional background for judges matters: A peer-reviewed study on NYC judges from @odedoren.bsky.social & Scrutinize confirms that former cops and prosecutors set higher bail and order pretrial detention more often: www.scrutinize.org/judicial-pro...

What We Found
After controlling for charge severity, criminal history, and other case factors, judges with prior careers as prosecutors or police officers made more severe pretrial decisions on average. This holds whether comparing them to all other judges or only to those without law enforcement or legal services backgrounds.

Because NYC cases are assigned on a rotating calendar and we find no evidence that judges with different backgrounds see systematically different cases, our findings are best explained by how judges decide cases rather than by systematic differences in case assignment.

Kyle Barry@kylecbarry· Dec 31

ICYMI, and in case you want to spend NYE contemplating the very stupid ways in which judges bend over backwards to deny civil rights to incarcerated people, behold the Colorado Supreme Court in my @slate.com essay -- just in time for a new vacancy on the court slate.com/news-and-pol...

Today, I bring your attention to the Colorado Supreme Court, which this month reaffirmed an inexplicable quirk of its excessive sentencing jurisprudence that preemptively extinguishes constitutional rights for entire categories of people. The court declares certain crimes to be “per se grave or serious,” which in practice means that no one convicted of such crimes can ever challenge their sentence, no matter its severity. The long-standing rule is both wholly illogical and blatantly unconstitutional (in the sense that it erases constitutional rights), but there is some good news: It appears that two justices are finally ready to, in their words, “deep six this concept.”

The court concedes that this “shortcut” is “unique to Colorado law” and that it “eliminates a longstanding layer of due process for criminal defendants.” Nonetheless, it remains on the books because it supposedly “saves time” and promotes “consistency.” I would submit that “saving time” is never a good reason to dispense with constitutional rights, but the court’s claims to efficiency are dubious in any case. Now, instead of properly analyzing its cruel and unusual clause, the court spends its time hopelessly trying to figure out what on earth “per se grave or serious” actually means and what offenses it applies to. With this rule in place, and with prosecutors thirsty to invoke it, the first part of every excessive punishment analysis turns into Tom Cruise cross-examining Jack Nicholson in A Few Good Men: Q: “Grave Danger?” A: [Raises eyebrow] “Is there another kind?”

Kyle Barry@kylecbarry· Dec 29

NEW: The CA supreme court holds on equal protection grounds that criminal courts must assess ability to pay before imposing *costs.* & in a confusing, contradictory graf it maybe also did so for *fines,* but under "excessive fines" rather than "due process" clause www4.courts.ca.gov/opinions/doc...

In sum, in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8, subdivision (a)(1) or a court facilities assessment under Government Code section 70373, subdivision (a)(1). The court should allow the parties to present and contest any relevant evidence or argument on this question.

Contrary to Dueñas’s suggestion, we do not find a due process requirement to hold an ability to pay hearing before imposing every punitive fine.17 We noted in People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707 that, because due process principles also proscribe excessive fines, in assessing the constitutionality of a fine, it ordinarily “makes no difference whether we examine the issue as an excessive fine or a violation of due process.” (Id. at p. 728.) Here we clarify that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines.

Kyle Barry@kylecbarry· Dec 22

Here's last week's ruling that prompted the newsletter, with a concurrence saying it's time to "deep-six" the very stupid "per se shortcut" www.coloradojudicial.gov/system/files...

C. The “Per Se” Shortcut ¶16 When considering the gravity or seriousness of an offense, we have designated certain crimes “per se grave or serious”—a shortcut unique to Colorado law. Wells-Yates, ¶ 13 n.6, 454 P.3d at 198 n.6. If a crime, “based on [its] statutory elements, necessarily involve[s] grave or serious conduct” in all factual scenarios, it’s designated as per se grave or serious, and the court begins its abbreviated proportionality review by evaluating the harshness of the penalty. Id. at ¶¶ 63, 65, 454 P.3d at 209. This designation not only saves time, but it allows courts to avoid the “somewhat imprecise” practice of a case-by-case analysis. Id. at ¶ 12, 454 P.3d at 198 (quoting People v. Gaskins, 825 P.2d 30, 36 (Colo. 1992)). ¶17 Despite these benefits of efficiency and consistency, we have encouraged caution before labeling a crime as per se grave or serious.

Concurring: In short, for more than three decades, Colorado has adhered to the idea that defendants who stand convicted of crimes that our appellate courts have deemed per se grave or serious are only entitled to a superficial proportionality review of their sentences. There are strong reasons to believe it is time to deep-six this concept.

Kyle Barry@kylecbarry· Dec 22

Some rage in this one. For years, the CO Supreme Court has used a made-up, asinine rule to preemptively deny people serving long prison terms their constitutional rights. It's a lazy & cowardly abdication of duty that 2 justices finally want to change. More here: slri.substack.com/p/issue-38-t...

Perhaps I am thinking too hard about this. Such an arbitrary, court-created rule—born out of some combination of cowardly deference to extreme punishments and sheer laziness, and that even prosecutors agree is “a weird concept anyway”—doesn’t deserve that much credit. The point is: The Colorado Supreme Court’s rule, it turns out, is less a shortcut and more a barrier to protecting fundamental constitutional rights that should be torn down. [People v. Kennedy]

Kyle Barry@kylecbarry· Dec 12

Great to see @law360.bsky.social reporting on this trend of state appellate courts rejecting regressive SCOTUS law and actually expanding rights against extreme criminal punishments (w/ quotes from me & @kasiawolfkot.bsky.social of @statecourtreport.org): www.law360.com/articles/242...