Activists working to put a stop to Colorado's death penalty have decided not to push a legislative agenda this year. Capital punishment advocates are moving forward to make it easier for prosecutors to secure a death sentence.
One day in early December, a group of about two dozen activists, academics, lawyers, funders, and others gathered at the First Baptist Church in downtown Denver. Lawmakers were about to return to the Capitol for another year of legislative pugilism, and the meeting was set up to strategize about an issue the group had been working on for years: How to get rid of the death penalty in Colorado.
In the spring, lawmakers next door in conservative Nebraska had voted to abolish capital punishment, overriding Gov. Pete Ricketts veto, and becoming the 1st conservative state to do so in 4 decades. But a measure to thwart abolition hit Nebraska's ballot soon after. Funded by that state's governor and his father, the ballot measure has put the issue on hold for Nebraska voters to decide later this year.
Meanwhile, within the borders of our own square state, jurors in August decided not to sentence the killer in the Aurora theater shooting to death because they couldn't reach a unanimous verdict. Not long after, a different jury chose to give a man convicted of killing 5 people in Fero's Bar and Grill in Denver life in prison instead of lethal injection. Then, in December, a gunman had shouted out in a Colorado Springs courtroom that he was guilty of slaughtering 3 people at a Planned Parenthood clinic, perhaps setting the stage for yet another made-for-TV death penalty trial against the backdrop of the Rockies.
In was around the time of the Colorado Springs rampage that a conservative Nebraska legislator named Colby Coash would travel to Colorado. His charge: Meet 1-on-1 and in groups with Republican lawmakers here to explain the success of repeal in Nebraska, and to talk about his personal Road to Damascus moment when he'd attended an execution rally outside a prison in college. On the pro-death side of the rally, he told lawmakers, he recalled a raucous bacchanal complete with fireworks, a band, and whoops and hollers as a clock counted down toward the execution. On the other side of the rally, people prayed silently and soberly in protest. That night, Coash saw an ugliness to state-sponsored execution that he didn't want to be a part of.
In an interview, Coash told The Colorado Independent that he left his meetings with Colorado lawmakers feeling like he'd given them some new things to think about when it comes to the conservative argument for ending capital punishment.
"My hope for Colorado is that they will follow Nebraska's lead ... and see the death penalty in the same way Nebraska saw the death penalty, which is a broken, inefficient government program that just doesn't need to be on the books anymore," he said.
By the time of their December meeting, with the legislative session just around the corner, some of the anti-death penalty allies felt the time was ripe to get behind a big push to repeal capital punishment in Colorado once and for all. If, of course, lawmakers saw an opportunity to do so this year. After all, 2016 is an election year in a split-partisan Capitol when each member of the House is up for re-election along with half the Senate.
"The group was quite divided about whether this was the right time or not," says Stacy Anderson who runs Colorado's anti-death penalty Better Priorities Initiative.
There were essentially 3 camps.
In one camp was Bob Autobee, the father of a prison guard who was killed in 2002 by an inmate already in prison for the death of his 11-month-old daughter. Autobee, a former corrections officer himself whose life unravelled after his son's murder, originally supported the death penalty for his son's killer, Edward Montour. But over the years, Autobee refound religion and became an ardent opponent of capital punishment. He's forgiven the man who fatally bashed his son's head with a giant soup ladle, and even protested outside the courthouse telling potential jurors in Montour's case, "My son wouldn't want the death penalty."
Autobee doesn't want to see any time wasted in the legislature or at the ballot box. So he made his case at December's meeting to support a repeal bill he hoped lawmakers would introduce and try to pass by the end of the legislative session this spring.
In an interview with The Colorado Independent, Autobee said he doesn't know if he has "10 good years left," and is sick of playing the waiting game.
My point is we've got to do it now and we've got to do it loud and hard," he says, noting he doesn't see the point in putting legislative efforts on hold. "We've waited too long."
Also at that meeting was Jeremy Sheets, an exoneree who spent 4 years on death row in Nebraska before the Supreme Court there overturned his conviction in 2000.
He now lives in Aurora and wears a shirt almost every day urging people to talk to him about his experience as a death row survivor. He wants immediate action on abolition and was frustrated at the meeting by the presence of some who were there from out of state and were suggesting they all cool their heels a bit because one lawmaker or another isn't ready. At the time, Sheets remembers thinking: Why are you even wasting my time asking me to come here if you're just going to try and tell me not to do anything?
"I'm kind of frustrated with what's going on- that there is really nothing much going on," Sheets told The Independent.
His view: "We have to keep pushing to end the death penalty."
In another camp were people like Michael Radelet, a professor at the University of Colorado at Boulder who studies the death penalty and takes the long view - a very long view - on abolition. The professor had earlier predicted that if Nebraska's legislature scrapped the death penalty, the issue would come right back on the 2016 presidential-election-year ballot. The chances, he believes, are good that voters in November might send abolition down in flames, setting the movement back who knows how long.
Radelet isn't one for quick fixes.
"I oppose the death penalty, and I think that to try to abolish the death penalty this year or next year would be the dumbest thing in the world for death penalty abolitionists," he told The Independent.
At December's meeting, Radelet made his case for putting the issue on hold this year. He believes public opinion in Colorado right now is just about split between death and life without parole. An election-year bill to repeal capital punishment, he believes, would increase the likelihood of a ballot measure aimed at keeping the death penalty in place. His concern: an effort by death penalty proponents - police and prosecutors, among others - would wage a well-funded campaign to keep capital punishment on the books at a time when the Colorado electorate has yet to reach a tipping point on abolition. Public opinion just isn't there yet for a confident win for abolitionists at the ballot box, he asserted.
Instead, Radelet would rather see Democratic Gov. John Hickenlooper commute the 2 1/2 sentences for the 3 inmates currently on death row. Hickenlooper has already given a temporary reprieve to 1, Nathan Dunlap. Fully commuting Dunlap's sentence and those of Sir Mario Owens and Robert Ray would, in effect, push forward the next scheduled execution about 2 decades. By then, public opinion will shift in abolition's favor, Radelet believes.
"We know the direction that public opinion is going in," he says. "It's going firmly against the death penalty."
Colorado hasn't executed anyone since 1997. The last time a jury unanimously sent someone to death was in 2008. Because of how long these cases drag out in Colorado's justice system, some death penalty opponents argue the state already has de facto abolition.
Hickenlooper has no plans to commute sentences at this time, says his spokeswoman Kathy Green.
In the 3rd camp at December's meeting were those on the fence between pushing immediately for abolition and waiting until after the election year. One of them was Carla Turner who runs Coloradans for Alternatives to the Death Penalty.
"I feel divided," she says about it now. "I really see the reason on both sides."
Ultimately, some in the group left the meeting that day in December feeling ambivalent.
If a lawmaker were to introduce a repeal bill when the session started this month, they'd support it. If not, well, they'd continue their work outside the legislature, educating the public, holding forums, and generally tilling the soil of public opinion in a way they hope some day will better the conditions for their cause.
'The opposing team is going full speed ahead'
Fast forward to this week, and no one has come forward with a repeal bill in the legislature.
Hickenlooper told reporters at the start of the session he would not support one this year, though he believes Coloradans are moving in the direction of repeal. Democratic Minority Leader Lucia Guzman said she would not sponsor a repeal bill this year even though she'll work to fight for abolition over the next few years she's in the Senate.
Over lunch on a recent Wednesday at his office across the street from the Capitol, Denver Democratic Sen. Pat Steadman said he's disappointed in the lack of legislative effort.
"I thought we were going to do it this year, or at least make a good run at it," he said.
But at the start of the session, legislative leaders, advocates, political consultants and funders had all circled the wagons and basically told him and others they were hitting the snooze button.
For his part, Autobee says he plans to start picketing outside the Capitol just to let the political class know he's not going anywhere.
"Every minute we waste is putting us further behind because the opposing team is going full speed ahead," he says.
Indeed they are.
Last week, Republican Sen. Kevin Lundberg of the Loveland area dropped something of a bombshell. He introduced a bill that would make it easier for juries in Colorado to put people to death.
Currently, all 12 jurors in a death penalty case must unanimously decide on a death sentence. Lundberg's bill, if passed, would make it so only 9 out of the 12 jurors would be enough. The move was in direct response to the recent non-unanimous jury verdicts in the Aurora theater shooting trial and the Fero's bar killing trial over the summer, Lundberg says. 5 other Republican supporters are on the bill. No Democrats currently support it.
In an interview with The Independent, Lundberg said he came up with the idea on his own and hadn't talked to the District Attorneys Council before he filed the bill. He said he isn't totally set on 9 jurors, either. Maybe it could be 10 or 11, but no fewer than 9. He just doesn't think 1 juror should poison the well in a death penalty trial.
"Part of what I'm trying to do is say 'Let's look at it, let's talk about it, let's determine what should be occurring here,'" he said. "If the policy is that the death penalty is appropriate for the worst of crimes, then a jury should not be composed of people who disagree with that basic point. And yet a juror could misrepresent their views until they get to that point, and I'm saying I don't think one juror should skew that principle."
Death penalty opponents were quick to point out a particular irony: It would still take a unanimous jury to convict someone for driving under the influence or for shoplifting in Colorado, but not to sentence someone to death.
Doug Wilson, the head of the State Public Defender's Office, said he'd been expecting such a bill to drop this session. He's not so sure it would pass constitutional muster.
"If it were to pass, they will once again jeopardize their death convictions and death verdicts as they did when we had 3-judge sentencing as opposed to jury sentencing," he said. In 1995 lawmakers changed the law so a 3-judge panel could decide a death sentence, but that was deemed unconstitutional less than a decade later, and now only juries can deliver execution verdicts.
Meanwhile, in the lower chamber, Republican Rep. Kim Ransom of Douglas County told The Independent she's considering a bill that would give prosecutors a do-over with a new jury if they fail to win a death penalty verdict with the 1st.
A statewide conversation
With no proposed legislation to roll back capital punishment this year, people with loud voices on the other side of the issue have been making noise.
One of them is George Brauchler.
Brauchler is the 18 Judicial District Attorney who prosecuted the Aurora theater shooting trial last year. For years, long before Brauchler took office, the 18th Judicial District had been a hub for death penalty prosecutions, something he calls a historical anomaly.
Once the Aurora theater trial ended in August and the national reporters went away, Brauchler's profile did not diminish. In the weeks after the trial, Republicans courted him to get in the GOP primary so he could take on Democratic U.S. Sen. Michael Bennet who is up for re-election this year. In late September, Brauchler announced that he would pass on the U.S. Senate race, but he still remains a prominent political figure beyond his stature as a suburban prosecutor.
In December, Robert Sanchez of Denver's 5280 magazine profiled Brauchler for a multi-page feature that called him "Colorado's most visible proponent of capital punishment." Among other personal details, the article examined how Brauchler's support of the death penalty runs up against his Catholicism.
In a recent interview with The Colorado Independent, Brauchler said he did not feel Coloradans have had a substantial statewide conversation about the death penalty. This is despite 2 death penalty trials over the summer, and a 2014 gubernatorial race that at times seemed to revolve solely around the fate of Nathan Dunlap, the man who in 1993 murdered several people in a Chuck-E-Cheese and to whom Hickenlooper gave a temporary reprieve. Once a pro-death penalty governor, Hickenlooper has since come out against it after immersing himself in research as Dunlap's execution date neared. In his executive order granting the Dunlap reprieve, the Governor wrote that the "Repeal of the death penalty ought to be raised with the people of Colorado and not just their elected representatives." That's when he called for a statewide conversation on the issue.
Nearly 3 years - and 1 re-election - later, some on both sides of the issue say that conversation hasn't happened.
"My guess is the only person having this conversation is the guy you're talking to right now ... Nobody else is having this conversation," Brauchler said. "In what way has this conversation taken place? If it's the vote of a single juror in Aurora theater and a single juror in Fero's bar and therefore we've had a public discussion about it, that's nonsense. That's ridiculous."
In the weeks prior to the start of the latest legislative session, Brauchler said he expected a repeal bill to come up this year. And if it did, similar to what's happening next door in Nebraska, Brauchler said he would like voters to decide whether to keep or scrap capital punishment at the ballot box this year. That, he says, would be a real conversation.
"I'd want to participate in the information part of that and say 'Look, here's why I think the death penalty is appropriate to have and why [in] Colorado - unlike maybe Texas, Georgia, Kentucky and others - we use it the right way," he said. "I mean, we don't drag it out for murders of one in most cases. We don't drag it out for routine murders."
On the other side of Brauchler on the death penalty debate is Doug Wilson, who runs the State Public Defender's Office and oversees the attorneys who represented Aurora theater shooter James Holmes and now the admitted Planned Parenthood shooter, Robert Dear. Lately, Wilson and Brauchler have been locking horns, sniping at each other in the press and on social media, largely about one key aspect of any informed conversation about the death penalty - how much it's costing Colorado taxpayers.
In response to dozens of open records requests from media, Wilson's office has released an aggregate figure showing how much it spent on capital cases - $6.3 million on 10 cases since 2002 - but didn't break them down by case. Wilson says he's ethically bound not to divulge information about particular cases. Brauchler says that seems "silly." But the 2 agree on 1 thing: The public has no idea how much Colorado taxpayers spend on trying to carry out capital punishment - and not enough people are talking about it.
To find out the true costs of the death penalty in Colorado will likely take a lot of open records requests, perhaps even a lawsuit. But there could be another way.
Wilson says he'd like to see lawmakers this session convene a legislative hearing. That process could happen formally or informally. It could come in the form of an existing committee or a new select committee set up by leadership specifically to deal with this issue. Committee members could invite all the stakeholders to the table: prosecutors, public defenders, agency employees from the departments of Corrections, Human Resources, Public Safety and others, staffers from the attorney general's office, local law enforcement, the Colorado Bureau of Investigation, members of the judicial department - whoever. They could bring in every government entity involved in dealing with death penalty cases (or just a specific case) to ask about particular costs.
In Colorado, committees can obtain subpoena power and can put people under oath, but it's not necessarily easy and is rarely done. To issue a subpoena for someone to testify before a committee would require approval from the General Assembly.
'Live From Death Row'
Whether such a committee will convene in the absence of a death penalty repeal bill this year remains to be seen, though some in the abolition movement are pushing for it. In the meantime, they plan to keep a conversation going as best they can.
Carla Turner, who directs Coloradans for Alternatives to the Death Penalty, a nonprofit educational campaign, is working with the Better Priorities Initiative, which is dedicated to ending capital punishment, on a string of public forums beginning next month.
In February, the groups will kick off a 'State of the Death Penalty' lecture series on the 3rd Wednesday of each month when they'll talk about combating bad legislation, work on figuring out how to uncover the hidden costs of capital punishment in Colorado, and the possibility of pushing for a statewide commission or task force on the issue.
In March, the groups are planning an event called 'Live From Death Row' in partnership with the Jesuit Regis University. A panel of experts will give a presentation along with family members of murder victims, and they hope to schedule a call-in from a death row inmate, though not from Colorado.
For Radelet, the University of Colorado professor, more education on the issue and no executions scheduled for the near term is the best hope for abolition.
"There are many kind Coloradans who think the solution is to go out tomorrow and abolish the death penalty," he says. "And I think if we did that it would come back and bite us in the ass."
Source: The Colorado Independent, January 25, 2016