Kyle Barry
@kylecbarry.bsky.social
2.5K followers 1.3K following 637 posts
Executive Director, State Law Research Initiative (SLRI) state-law-research.org & adjunct, USF Law; formerly @theappeal.bsky.social, NAACP LDF. I write about state courts & dismantling mass incarceration. open.substack.com/pub/slri
![Given longstanding precedent, the current neuroscientific
consensus on brain development, and California's own standards
of decency, sentencing youth offenders under age 26 to die in
prison is no longer constitutionally tenable. Other state courts
have recognized their state constitutional obligation to expand
rights for young people, and "In]ow is the time" for California
"court[s] to grapple with these important considerations" under
Section 17. (People v. Powell (Feb. 23, 2024, A167066 [nonpub.
opn.], review den. June 12, 2024, S284418) (dis. stmt. of Evans,
J.).)](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:lvzlku7pfr7kqlhxsibry4oj/bafkreigkl5pivrpavr5hzhydh74weyqfd7etokbve3pj7se72ingb3zihe)
![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.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:lvzlku7pfr7kqlhxsibry4oj/bafkreigchmemai2nzldkeh37vlw5htnwjyxlnhv7av4mbo2jye4d5pfumi)
![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?”](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:lvzlku7pfr7kqlhxsibry4oj/bafkreigq7idqf365xy5sex3tolyzezqc2zeyltmgnznefkutfzlmkumd4a)
![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.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:lvzlku7pfr7kqlhxsibry4oj/bafkreiefl5qz36gixbvndono3mxo3kjyixhbsokmb2wrs3sjabtz35o6c4)
![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 wtf “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?”](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:lvzlku7pfr7kqlhxsibry4oj/bafkreibxaue4r7vpjhtvdlovl7gfi2qspz6ttykn2aqwwyghfyue2lmhzu)
![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]](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:lvzlku7pfr7kqlhxsibry4oj/bafkreidmjdygsgk45sxetuhvset4foavnkixh73ojcmb2nswbdvs2anz7a)
