In the last six months, two Colorado death-qualified juries in horrific mass murders concluded that life in prison was a more appropriate sentence than death. If these Colorado juries decided James Holmes and Dexter Lewis do not deserve the death penalty, who does? Both juries were unanimous on guilty conviction but neither could muster the unanimity needed to convict them to death.
It is becoming increasingly clear to me that there is not a compelling argument to support the death penalty. So why is it still an option for Colorado jurors? Let’s take the arguments one at a time. Many have asserted that the death penalty deters violent crime. Study after study disputes this assertion. Indeed, 88% of our country’s top criminologists do not believe the death penalty acts as a deterrent to homicide. Nationally, police chiefs rank the death penalty as last when asked to name priorities for effective crime reduction. Our nation’s South accounts for 80% of America’s executions and yet homicide rate is the highest in the nation. States that have repealed or abolished the death penalty see no correlation whatsoever to their murder crime rate.
Many, including District Attorney George Brauchler who prosecuted James Holmes, say the death penalty is needed for the “worst of the worst”. But it is difficult to imagine a crime worse than the Holmes mass murders or the deliberate lethal stabbing of five people in a robbery gone terribly wrong at Fero’s Bar and Grill in Denver. The death penalty is used so rarely and inconsistently that any execution now seems random, an accident of time, place, and race.
Let’s look at race. Nationwide, 34% of all executions are of African Americans and 42% on death row are African American. But African Americans represent only 13.7% of the nation’s population. In Colorado, the numbers are starker. Our death row consists solely of African Americans. 100% of our death row is African American and African Americans represent only 8% of the state’s total population. Interestingly, all three men on death row are from the same city and they even went to the same high school. Additionally, they were all prosecuted out of the same District Attorney’s office.
A recent University of Denver study found that between 1999 and 2010, only 1% of cases that were death-eligible – meaning they met the factors set forth in statute – actually sought death. This is not a penalty that is saved for the worst of the worst, but rather is imposed more inconsistently. As Governor John Hickenlooper stated when granting Nathan Dunlap a temporary reprieve, “if the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado’s system for capital punishment is not flawless.”
The death penalty is not a deterrent, is not reserved uniformly for the worst of the worst, and does not represent fairness or justice. The arguments favoring the death penalty are flawed and there are many reasons to oppose it. It is costly for the state – far more expensive than a non-death case. Death penalty prosecutions cost every agency involved more. Every day in court requires high level attorneys, high level clerks, judges and investigative personnel. There are more lawyers per side, more courtroom security, more jurors, more experts and simply more days in court. These costs do not include the many years of appeals after conviction or the cost involved in housing prisoners on death row as opposed to in the general population for a life sentence. Many would say the system should be streamlined and this would make it less costly. But when someone’s life is on the line, justice compels us to get it right and a streamlined approach is not justice guaranteed. There have been 155 death row exonerations in the U.S. The system is not flawless.
Public opinion favoring the death penalty is waning. A recent survey released by Colorado’s Better Priorities Initiative shows that 62% of Coloradans now prefer a sentence of life in prison over the death penalty.
Few people have a more personal connection to the death penalty than Rep. Rhonda Fields – a personal friend and a champion for the rights of victims. Two of three men on death row are there for murdering her son before he could testify against one of them. Although Rep. Fields continues to believe in the death penalty, she recently conceded that she’s not sure her son’s killers will ever be executed. She honors her son’s memory through the Fields Wolfe Memorial Fund, a non-profit committed to empowering youth.
But while time, cost, the deterrence debate, public opinion and a lack of a streamlined process are all critical factors in the death penalty argument, we cannot ignore the bigger moral question our society faces. Should individuals within our legal system be in the business of determining which mitigating factors are compelling enough to warrant ending a life? We must address this difficult question to fully understand the debate. But while our country debates this question that continues to plague our justice system, our state cannot continue to employ the death penalty as an option for Colorado juries.
Colorado’s death penalty law is in tatters. Let’s legislate its repeal.
