Once again, the death penalty is a topic of discussion in both legal and political circles in Colorado.
Capital punishment became a major issue in the state several years ago after James Holmes opened fire inside an Aurora movie theater, killing 12 and injuring 70. Almost exactly four years later, on July 16, 2016, Holmes was found guilty on all 165 counts against him. A jury could not reach a unanimous decision on whether to sentence Holmes to death or life in prison, so then-Judge Carlos Samour Jr., now a justice of the Colorado Supreme Court, gave him 12 life sentences.
Two weeks ago, Weld County District Attorney Michael Rourke announced nine charges against 33-year-old Christopher Watts, who is accused of killing his 34-year-old wife Shannon Watts and his two young daughters. The charges included three counts of first-degree murder and two counts of first-degree murder of a person under the age of 12 while being in a position of trust. The charges led news outlets to question whether prosecutors might seek the death penalty in the case.
Rourke, however, said at a press conference on Aug. 20 that it was “way too early to have that conversation.” The district attorney has 63 days after Watts’ arraignment to decide whether to pursue the death penalty.
There’s also the question of the fate of three men currently on death row in Colorado — Nathan Dunlap, Sir Mario Owens and Robert Ray. Dunlap, who shot and killed four employees at a Chuck E. Cheese restaurant in 1993, was scheduled to be executed in August 2013. Three months prior to that date, Gov. John Hickenlooper issued an executive order granting Dunlap a temporary reprieve from execution, which remains in effect. At the time of the announcement, Hickenlooper noted in the executive order: “As Governor, I must either direct state employees to execute a human being, or I must exercise my constitutional authority to stop an execution. Both paths require an affirmative decision by me, and the prospect of either decision has been daunting. It has forced me to think of the issue in a personal way because it is on my conscience the decision will weigh. I am confident that most Coloradans — no matter what their views on the death penalty may be — will respect and understand the unique burden of this decision.”
With only a few months remaining in his tenure as governor, some have questioned whether Hickenlooper will grant clemency to Dunlap or either of the other two men, permanently altering their sentences to life in prison. Or, rather, whether the decision of Dunlap’s fate might fall to the next governor following the election this November. Neither the campaign for the Democratic nominee for governor Rep. Jared Polis or that of the Republican nominee Walker Stapleton responded to a request for comment.
When asked about the topic of capital punishment in general, Hickenlooper told Law Week: “The death penalty is not cost-effective, and it’s not a good deterrent for crime. How a jury or judge will measure a defendant’s mental health is wildly variable, and therefore inherently unjust. I want to believe that our justice system has matured to a place where we can issue the appropriate punishment without putting someone to death.”
The prospect of the cost of a death penalty case is something Stan Garnett, who is in favor of its repeal in Colorado, had opportunities to consider during his 10 years as the top prosecutor in Boulder County. “We need to get rid of it,” said Garnett, who joined Brownstein Hyatt Farber Schreck earlier this year as a senior partner. “The death penalty is a big distraction and doesn’t accomplish anything.”
As Boulder District Attorney, Garnett said he had a budget of about $5 million, and that it would have cost more than that to prosecute a single death penalty case. More important, Garnett said, is the fallibility of the system. (Since 1973, 156 people have been exonerated from death row.) “Philosophically, I understand the case for the death penalty,” he said. “There are some crimes that are so hideous where you go ‘if that guy is executed that’s probably about right,’ The reason I support its repeal is that human beings are unable to devise a system where people who should get executed get executed. We’re incapable of doing it. The more we tinker with the machinery of death the more expensive it becomes and the hard it is on the families of the victims — it takes forever to get these cases resolved.”
In 2009, the Colorado legislature came within one vote of abolishing the death penalty, with the House passing a bill 33-32 and the Senate then rejecting it 17-18. The bill would have taken the savings and used it to fund a unit dedicated to solving cold cases; at the time there were more than 1,400 unsolved murders in the state.
“Aside from the morality of the death penalty, this state has spent in the last 50 years probably about $100 million trying to kill people,” said defense attorney David Lane, partner at Killmer, Lane & Newman, who has defended multiple clients against the death penalty. “It’s a lot of money in an age when schools are underfunded, and health care is suffering across the board and the environment is going to hell, when roads aren’t fixed. To spend that kind of money trying to kill people when we have had one execution in the last 51 years is an atrocity.”
To date, 18 states have abolished the death penalty and 32 states still have it on the books. “Of the 32 states that have it,” Lane said, “Colorado fits into the vast majority of the states: They have it but never use, they just keep spending money.” Lane added, “If the state legislature turns blue, I predict the death penalty is going to be repealed.”
— Chris Outcalt