Attorneys React to Death Penalty Repeal
Governor’s decision to commute sentences yields both condemnation and praise

by Jessica Folker

Gov. Jared Polis on March 23 signed a bill repealing the death penalty in Colorado, making it the 22nd state to do away with capital punishment. He also issued an executive order commuting the sentences of the state’s three death row inmates to life in prison.

Polis previously said he would sign the bill and had signaled he would grant clemency to the three men, whose sentences were not affected by the passage of Senate Bill 100, which only applies to crimes charged on or after July 1. But the timing of the commutations came as a surprise to many and provoked criticism from some of the most passionate opponents of the death penalty repeal. Others in favor of abolition, including defense attorneys and prosecutors, applauded the clemency orders.

The governor commuted the sentences of Sir Mario Owens, Robert Ray and Nathan Dunlap. Dunlap was sentenced to death for killing four employees and severely injuring another at a Chuck E. Cheese restaurant in 1993. Ray and Owens were on death row for killing Javad Marshall-Fields and Vivian Wolfe in 2005. Ray and Owens were also convicted for their roles in the 2004 murder of Gregory Vann, and Marshall-Fields had been scheduled to testify in the trial.

“Commutations are typically granted to reflect evidence of extraordinary change in the offender. That is not why I am commuting these sentences to life in prison without the possibility of parole,” Polis said in a news release.

“Rather, the commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado.”

APPLAUSE FROM ABOLITION ADVOCATES

Not surprisingly, some of the most vocal support for the death penalty repeal came from criminal defense attorneys.

“I’ve been a lawyer for 40 years, and I’ve been doing death penalty cases for 35 of those years,” said Killmer Lane & Newman partner David Lane. “And for the last 35 years, I’ve been doing everything in my power to put myself out of business.”

“It is my belief that the death penalty is the embodiment of the worst instincts of all of us,” Lane said. “It embraces violence and vengeance for no discernible societal benefit. It has been my experience that the final resting place for the most abused children in our society is frequently death row.”

Tristan Gorman, legislative policy coordinator for the Colorado Criminal Defense Bar, said the organization fully supports the death penalty repeal and the commutations. The CCDB’s position is that it’s not the government’s role to take a life and not worth the risk of executing an innocent person, Gorman said, adding there has been “uneven and racially disparate application of capital punishment both nationwide and in Colorado.” All three men granted clemency by Polis on Monday are black.

Gorman said the bill had a “diverse coalition of support,” including those who showed up to testify in committee hearings. “What struck me most was that we had elected district attorneys as well as victims’ family members who were taking time out of their daily lives to testify in support of the bill. It was not simply a defense bar bill.”

Denver District Attorney Beth McCann was among those who testified in favor of the legislation. “For me, part of it is a moral issue. I do not believe the state should be in the business of killing people,” she said. Prosecuting death penalty cases also takes a lot of time and money, McCann said, and she doesn’t think it works as a deterrent.

McCann and Gorman both said that it made sense for the commutations to coincide with the death penalty repeal for the sake of consistency and clarity. “I think this is a very hard decision, but I applaud [Polis] for taking decisive action and not letting the fates of these inmates linger,” McCann said.

OUTSPOKEN OPPOSITION

One of the most outspoken opponents of the death penalty repeal was state Sen. Rhonda Fields (D-Aurora), whose son and future daughter-in-law were killed by Ray and Owens. According to 9News, while Fields knew the bill would be signed by the governor, she was unaware Polis was planning to commute the sentences of her son’s killers the same day. Fields said in comments to news outlets and on social media Monday that she was “disappointed” and “disgusted.”

George Brauchler, 18th Judicial District Attorney, issued a searing statement Monday criticizing the commutations. All three men were prosecuted in Brauchler’s district under his predecessors, and he has been trying to preserve the sentences since he took office more than seven years ago.

In the statement, Brauchler accused Polis of “political opportunism” and questioned the timing of the commutations, which he said weren’t urgent.

“What’s the rush?” Brauchler said in an interview with Law Week. “The only thing I can think of is, the rush was: ‘Hey, let’s strike while the iron is hot, baby. Let’s bootstrap it onto the signing of the repeal of the death penalty and bury it in the coronavirus news cycle.’”

Brauchler said Polis made his decision “without complying with the law.” He cited a statute that requires the governor to submit commutation applications to the DA’s office that handled the case for comments, which Brauchler said Polis failed to do, though he wasn’t certain whether Polis intended to act under this statute. In the clemency orders, Polis cited his constitutional powers and another statute, both of which grant the governor broad authority to commute sentences.

Lane said the statute Brauchler cited doesn’t apply to Ray and Owens, who are still in the appeals process and never applied for clemency. “Under the constitution of Colorado, the governor has the power to grant clemency whether someone applies for it or not,” Lane said.

“At the end of the day, these are three of the biggest, most important criminal cases in the modern era in Colorado,” Brauchler said, and he thinks the governor should have consulted him, regardless. Instead, he found out about the commutations through a Polis administration staffer a couple hours before they were announced.

“It’s completely disrespectful — and I’m not talking about for me,” Brauchler said. “I’m talking about for the process. I’m talking about for the jurors of the three unanimous juries that sentenced these horrible murderers to death.”

WHO SHOULD DECIDE?

Senate Bill 100 was the sixth attempt by Colorado lawmakers in a little more than a decade to repeal the death penalty. The legislation passed in a final House vote on Feb. 26, but not without weeks of debate about whether the issue should be left to voters to decide.

Brauchler blasted lawmakers for adding a safety clause to the bill, which prevents people from petitioning to block legislation from going into effect.

“Even more than that, why didn’t the legislature just refer this to the ballot for voters to have their say on it?” he said. “I know the answer… and that is because no state’s voters in America have ever repealed the death penalty.”

But Gorman of the CCDB said it was appropriate for the legislature to decide on the death penalty repeal: “It’s our position that because the legislature is in the role of setting all penalties for all criminal offenses, this is no exception and [the repeal] was a proper legislative action.”

McCann said she doesn’t think the death penalty issue is well-suited for a referendum as it’s a constitutional issue involving the justice process, and elected officials are better positioned to consider a wide range of opinions from voters across the state. Ballot initiatives and their outcomes are often influenced by which side has more money, she added.

If Coloradans were voting on the death penalty today, it’s not clear what the outcome would be. A poll from 2015 showed 63% of Colorado voters supported the death penalty for Aurora theater shooter James Holmes. But Lane said there has been “a sea change” in attitudes about the death penalty across the U.S., citing a 2019 Gallup poll that showed that, for the first time ever, a majority of Americans say life imprisonment is a better punishment for murder than the death penalty. In that nationwide poll, 60% favored life in prison, compared to 45% in 2014.

McCann acknowledged it’s a difficult issue that divides many in the state. “I think there are a lot of thoughtful and informed people who still favor capital punishment, among them Rhonda Fields, who is a good friend of mine,” McCann said. “And I respect that. I just have a strong feeling that this is the proper way for Colorado to go.”