Both the Colorado Constitution and the United States Constitution prohibit “cruel and unusual punishments,” under Article II, section 20 and the Eighth Amendment respectively. Under these provisions, sentences to terms of imprisonment must be proportionate to the crimes a person has committed. But under Colorado’s Habitual Criminal Act (HCA), the length of a person’s sentence is sometimes determined not by the nature of the crime committed, but instead by the person’s full criminal history. This raises clear proportionality concerns.

In 2019, the Colorado Supreme Court decided Wells-Yates v. People, which changed how Colorado courts review the proportionality of sentences imposed under the HCA.  Wells-Yates held that when courts review an HCA sentence for proportionality, they must assess the defendant’s past convictions as well as the present conviction individually, based on evolving ethical benchmarks. Wells-Yates also decided that possession of a controlled substance is not necessarily a serious offense (previously possession was always treated as a serious offense).

Rodney McDonald and David Ward were both sentenced under the HCA long before Wells-Yates was decided, to prison terms that are radically out of step with current law. Mr. McDonald was sentenced to 72 years in prison for attempted second degree murder and second degree assault. His previous offenses were possession of a controlled substance and conspiracy to commit menacing (a class 6 felony, the lowest class). Mr. McDonald has served more than 25 years in prison.

Mr. Ward was sentenced to life in prison for aggravated robbery and aggravated robbery with a simulated weapon. Neither crime involved an actual weapon or an injury. His previous conviction was burglary. Under current statute, Mr. Ward would be entitled to resentencing after ten years and would face a maximum sentence of 64 years. Mr. Ward has served more than 30 years in prison.

The Court of Appeals in both cases determined that Wells-Yates does not apply retroactively, and neither man is entitled to a new proportionality review. The Colorado Supreme Court has granted certiorari on whether Wells-Yates applies retroactively.

Our briefs argue that the Colorado Supreme Court should clearly hold that Colorado’s constitutional prohibition on cruel and unusual punishments provides broader protection than its Eighth Amendment counterpart. Even provisions with the same text, contained in different constitutions, should be expected to have different meanings due to their different histories and contexts. Colorado has a tradition, history, geography, and legal landscape distinct from that of the United States as a whole, and its protection against cruel and unusual punishments should be interpreted independently as a result.

Wells-Yates appropriately applied a very different and more protective proportionality analysis under Article II, section 20 than courts applying the Eighth Amendment. We hope the Colorado Supreme Court will recognize that the enhanced protections articulated in Wells-Yates should be applied retroactively to Coloradans who were sentenced to terms of imprisonment that fail to comport with Colorado’s evolving standards of decency.


Timothy R. Macdonald, Sara R. Neel, Emma Mclean-Riggs, and Laura Moraff

Date filed

March 5, 2024


Colorado Supreme Court


In State Supreme Court

Case number

2023SC381 & 2023SC328