Colorado’s History of Capital Punishment

by Jess Brovsky-Eaker

Prior to this month, a first-degree murder could be punishable by death in the state of Colorado. Gov. Jared Polis in March commuted the sentences of three Colorado prisoners on death dow and signed a bill repealing the state’s authority to carry out capital punishment. The state has a long and complex history with the death penalty, first abolishing it in 1897 and then reinstating and abolishing it a number of times over the past century.

After being one of the first of the western states to abolish the death penalty in 1897, executions were brought back just a few years later in 1901. Between 1901 and its second abolition in 1972, more than 90 people were executed in Colorado.

According to the state’s execution records, all of the prisoners were male, and many of the executions took place before Colorado implemented more humane capital punishment methods starting with the gas chamber in the 1930s and eventually adopting the use of lethal injection in the late 1970s.

Though few in Colorado were sentenced to the death penalty in the late 1960s, state lawmakers began eyeing the statute as the U.S. Supreme Court reviewed a capital punishment case from Georgia in the early ’70s. The court ruled in Furman v. Georgia, that capital punishments as they stood in some states were unconstitutional because they contained ambiguous language. To reinstate capital punishment after the ruling, states needed to alter their sentencing statutes. By 1974, Colorado had revised the statutes and reinstated capital punishment. Colorado eventually moved away from jury trials and instead used a three-judge system to preside over capital punishment cases from 1995 to 2002.

The Supreme Court ruled again on the issue in 2002, holding that any states that implemented death penalty schemes similar to Arizona’s, including Colorado, were in violation of the Sixth Amendment, which required capital punishment to be decided by a unanimous jury verdict. Because of this ruling, Colorado was forced to commute the sentences of three inmates who had been sentenced to the death penalty under the three-judge system to life without the possibility of parole.

Colorado then revised its death penalty statutes again to include new sentencing requirements, removing arbitrary language and adhering to requirements in the Eighth and Sixth amendments. The new considerations included prior convictions, the violent nature of the crime, whether the murder was of a known pregnant woman and if the murder could be proven a hate crime, among other factors. Criminal cases seeking the death penalty required a trial by jury and a unanimous decision on all the elements of the case that would qualify it for the death penalty. If even a single juror opposed the death penalty, the sentence automatically defaulted to a life sentence and the case was not eligible for retrial.

In the “modern era” of Colorado’s capital punishment, only one person has been executed since 1977: Gary Lee Davis, who was sentenced to death in 1987 for the 1986 kidnapping, rape and murder of his neighbor. His wife and accomplice was sentenced to life in prison, and Davis was executed in October 1997. Then-Gov. Roy Romer said of Davis, “[T]here undoubtedly has been some rehabilitation of his character and his demeanor. But I do not believe that whatever remorse or rehabilitation that is displayed here justifies reaching that extraordinary event that would cause this governor to give him clemency.” Davis was the only person to be executed in Colorado between 1968 and 2020.

This article appeared in the July 27 issue of Law Week Colorado. To read other articles from that issue, order a copy online.