Cruel and Unusual?

A look at the history behind Colorado’s habitual offender statute

Police Tape
In a significant ruling in the debate over habitual offender sentences, the Colorado Supreme Court rejected an argument that “the mandatory sentencing procedure set forth in the Colorado habitual criminal statute violates the Eighth Amendment's prohibition against cruel and unusual punishment,” according to a 1981 opinion. / LAW WEEK FILE

After Jesus Gutierrez was convicted of felony menacing and unlawful use of an incendiary device in the commission of a felony, he was adjudicated a habitual criminal because the jury found he had three prior felonies. In his 1981 appeal, Gutierrez brought forward what was then a novel argument — that because one of his convictions was not properly proved, and because he alleged the underlying language of the habitual offender statute was unconstitutional, he said the court violated his Eighth Amendment protection against cruel and unusual punishment. 

Gutierrez’s conviction came after a violent altercation in Denver involving a machete and other large knives that culminated in Gutierrez throwing Molotov cocktails into an apartment building and attacking a man with the machete, inflicting serious head wounds. Gutierrez, who had already been convicted of three felonies, was adjudicated a habitual criminal and he pled guilty to second-degree burglary. 

Habitual criminal adjudication has been deemed a cruel and unusual punishment by criminal defense lawyers and criminal rights activists for years, but Gutierrez’s case in the early 1980s was one of the first tests, which returned a disagreement from the state’s highest court. Gutierrez attempted to show the statute was unconstitutional, but the court ruled he lacked the appropriate evidence to show the statute was unfair or in violation of his rights. Gutierrez wasn’t the first person to challenge the state’s habitual criminal statutes and he wouldn’t be the last — hundreds of people fought the statute and the habitual offender label after 1981, according to search results on Casemine.

In Colorado, conviction of more than three felonies labels the individual a habitual offender and makes them vulnerable to increased penalties like serving three or four times longer jail sentences or getting a possible life sentence. The law, also called the three strikes law, has been hotly contested since it was put on the books in 1994 and 28 other states have similar provisions for repeat offenders.

As part of the U.S. Justice Department’s Anti-Violent Crime Initiative, the Violent Crime Control and Law Enforcement Act of 1994 allowed states to set up their own framework for a three strikes law, according to the DOJ archives.

Colorado hasn’t seen an attempt to change the statute for some time, with the most recent effort failing in the 2018 legislative session.

– Jess Brovsky-Eaker

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