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This piece was originally published in the Behind the Bench newsletter on state constitutional law. Behind the Bench is published by the State Law Research Initiative.

It can be astonishing, and more than a little depressing, to see the lengths some courts go to avoid upholding basic constitutional rights. In June, I wrote about how the North Carolina Supreme Court’s Republican majority dilutes civil rights by requiring claimants to prove that challenged state actions, including discriminatory laws, are “unconstitutional beyond a reasonable doubt.” The problem, as liberal Justice Anita Earls pointed out, is that “either the statute is consistent with the constitution or not,” and the “notion that you have to somehow establish that beyond a reasonable doubt makes no sense”—except, of course, as an excuse to erode civil rights.

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.”

Colorado’s state constitution prohibits “cruel and unusual” punishment, including excessive or “disproportionate” prison terms. To assess excessive punishment claims, Colorado courts begin by comparing “the gravity or seriousness of the offense to the harshness of the penalty.” Normally, Colorado case law takes a relatively capacious view of how a crime’s “gravity” should be........

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