Colorado Supreme Court’s ‘Per Se Grave or Serious’ Shortcut Undermines Constitutional Protections

This piece was first published in the Behind the Bench newsletter on state constitutional law, a publication of the State Law Research Initiative.

It can be surprising — and discouraging — to watch courts take elaborate steps to avoid enforcing basic constitutional protections. In June I wrote about the North Carolina Supreme Court’s Republican majority, which weakened civil-rights claims by requiring challengers to prove that state actions were "unconstitutional beyond a reasonable doubt." That standard, as Justice Anita Earls observed, effectively erodes rights.

Colorado’s Unique — And Problematic — Shortcut

This month I turn to the Colorado Supreme Court, which recently reaffirmed an unusual feature of its excessive-sentencing jurisprudence that preemptively forecloses constitutional review for whole categories of defendants. The court labels certain offenses "per se grave or serious," a designation that, in practice, means people convicted of those offenses cannot successfully challenge their sentences on proportionality grounds, regardless of how severe the punishment is.

Colorado’s constitution forbids "cruel and unusual" punishment, including penalties that are excessive or disproportionate. Ordinarily, Colorado courts assess alleged excessive sentences by comparing "the gravity or seriousness of the offense to the harshness of the penalty," taking into account not only the elements of the offense but also mitigating factual circumstances and offender characteristics — for example, whether the person was an accessory or principal, the person’s culpability and motive, youth, disability, addiction, coercion, poverty, or other contextual factors.

But Colorado alone has developed a judicial shortcut: instead of conducting the constitutionally required comparison in every case, the court designates some offenses as "per se grave or serious" and treats sentences for those offenses as effectively "impervious to attack on proportionality grounds." Far from saving meaningful time, the rule circumvents the core constitutional inquiry and hands prosecutors and legislators leeway to pursue highly punitive sentences.

How The Rule Has Worked In Practice

The rule has not been confined to intuitively the most blameworthy crimes. For decades Colorado courts treated nearly all drug offenses as "per se" grave or serious — including mere possession — until a 2019 decision corrected that overbroad approach. Yet robbery remains classified as per se grave or serious, even though robbery cases span a wide factual range: some involve desperate or coerced actors, youth, imitation weapons, or nonviolent circumstances.

As the court once recognized: "It makes little sense to automatically treat the sale of a large quantity of cocaine by the leader of a drug cartel as equally grave or serious as the mere possession of a very small quantity of cocaine by a drug addict who is not involved in sale or distribution."

People v. Kennedy — A Narrow Step, and a Larger Opportunity

In People v. Kennedy (decided earlier this month), the Colorado Supreme Court applied its per se doctrine and upheld a 24‑year prison term. At the same time, the court held that vehicular homicide while driving under the influence is not per se grave or serious because it is a strict‑liability offense lacking a mens rea element; without proof of intent, the court explained, it is impossible to evaluate culpability across all factual scenarios.

That reasoning — that strict‑liability offenses resist categorical culpability assessments — is sound. But it undercuts the logic of the per se rule more broadly: many intent‑based offenses also present radically different culpability profiles depending on age, coercion, role in an offense, weapon type, whether the weapon was real, whether someone was harmed, and other facts. To say that robbery (for example) is sufficiently serious in every possible factual scenario ignores the realities judges are supposed to weigh.

Justices Carlos Samour and Richard Gabriel issued a special concurrence urging that the per se designation be abandoned. They argued that "easier and faster isn't always better," that a superficial proportionality review is inadequate when constitutional rights are at stake, and that "the drawbacks of per se designations far outweigh any purported benefits."

Why The Shortcut Fails

There are three related problems with Colorado’s per se approach:

• It short-circuits a constitutional test: The proportionality inquiry compares offense gravity and offender characteristics to the punishment imposed; skipping that comparison nullifies the protection the constitution promises.
• It treats gravity as binary: "Grave" and "serious" occupy a spectrum. Labeling a whole class of crimes per se serious divorces the label from the punishment it is supposed to evaluate.
• It produces inconsistent and arbitrary outcomes: The rule purports to save time, but it forces courts to litigate which offenses qualify as per se and why — the very work the doctrine was supposed to avoid.

In sum, Colorado’s per se rule functions less as an efficiency measure than as a barrier to enforcing fundamental constitutional protections. The special concurrence by Justices Samour and Gabriel offers a path forward: eliminate the shortcut and restore a meaningful, case‑by‑case proportionality review that considers both offense facts and offender characteristics.

Conclusion. The per se doctrine should be dismantled. Constitutional safeguards against cruel and unusual punishment cannot be sacrificed in the name of expediency or doctrinal convenience. Colorado’s courts should apply the constitution’s proportionality test in full — not carve out classes of defendants who are, by judicial fiat, beyond its reach.