The big news from the state Capitol has been not only that it’s a new day, with Democrats in charge everywhere, but with the pace of change at which Democrats are moving — and the desperate attempts by Republicans to slow them down.
One very large exception, though, has been in the state Senate, where not long ago it looked as if the end of the death penalty in Colorado was assured. It has already passed the House. Gov. Jared Polis said he would sign the bill. And now?
Well, if there is another such failure — and, remember, we’ve seen this movie before — it would, of course, be disappointing to those who oppose the death penalty. But it would not be a disaster. Because the truth is that, whatever the legislature decides, capital punishment no longer exists in any meaningful way in Colorado.
Whether the bill passes, the death penalty is done here. Someday, a law will make it official. Maybe this year. Maybe the next. But when a state has executed only one person since 1967 that means the single execution was basically a random event — the kind that Supreme Court Justice Steve Breyer once rightly described as “the antithesis of justice.”
And if you need proof of that — or the fact that we’ve basically moved on from what most of our peer countries now accept as barbaric — all you need do is look back to a few weeks in 2015 when the whole concept of the death penalty fell apart in Colorado.
In the course of that time, two particularly heinous crimes were adjudicated. In neither case was there any doubt about the guilt of the murderers. In neither case was there any question about the brutality and ugliness of the crimes and the shock to the community. In fact, if you were asked to research arguments to justify the death penalty in Colorado, these two cases would probably be found near the top of anyone’s list.
And in both cases, a death-qualified jury — meaning jurors who swear under oath they don’t object to the death penalty in either principle or practice — refused to sentence to death the men they had just found guilty.
You know the stories, especially the one of James Holmes, the Aurora theater killer, who was clearly mentally ill, even if not legally insane. He gunned down 12 people in a massacre that somehow bookends Columbine and leaves Colorado as a state forever marked by this era of mass murder.
Our history of mass murders contributed to making Colorado an outlier among Western states in passing modest — if highly controversial — forms of gun control and now, it seems, a red-flag bill that would temporarily remove guns from those found by a judge to be a danger to themselves or others. But that history did not convince two juries to respond by unanimously imposing the death penalty.
According to one person on the Aurora jury, one of the jurors was firmly opposed to the state killing of Holmes and two were wavering. And when Holmes was taken to prison, the question would be asked and never satisfactorily answered: If you can’t impose the death penalty on a mass murderer, who does qualify?
Three weeks later, we actually did get an answer of a kind when Dexter Lewis was convicted of stabbing to death five people in a robbery — netting all of $170 — that had gone terribly wrong at what was then Fero’s Bar and Grill in Denver. This was a case of murdering potential witnesses, in which Lewis apparently went down a line, stabbing the owner and four customers who were being held at gunpoint by Lewis’s accomplices. Then they burned down the place to cover up the deaths.
The jury didn’t go for death, though, after hearing testimony of the years of physical abuse that Lewis had suffered during his childhood. And so, as I wrote back then, the jury was charged with measuring the crimes Lewis had committed against those committed against him as a child. What a strange system of justice at which we’ve arrived. The jury settled for life without parole.
Given that the 40-some percent of people who oppose capital punishment are not eligible to serve on these juries, it must seem strange that the 12 serving couldn’t condemn the killers to death — unless you were being asked to make that decision yourself.
Lawmakers are taking that issue upon themselves again. Two who support the death penalty are Sen. Rhonda Fields and Rep. Tom Sullivan, both of whom lost children to murder and whose careers in politics can be traced to that awful moment in their lives. Both strongly support the death penalty, and no one should or could blame them.
But ask John Hickenlooper how difficult the issue is. Once a death penalty supporter, Hickenlooper controversially granted a “temporary reprieve” rather than executing Nathan Dunlap, the notorious Chuck E. Cheese killer. When Hickenlooper was faced with the actual fact of the death penalty, he couldn’t bring himself to do it. He would say it was not a matter of mercy but a matter of the many problems with the death penalty itself. And now, as he runs for president, Hickenlooper says he opposes the ultimate punishment.
There are a wide range of reasons to oppose capital punishment. Go to the website of the Death Penalty Information Center for the numbers that help explain the opposition. Start with the issue of race (blacks who kill whites are many times more likely to get the death penalty than whites who kill blacks), gender, class, geography (since 1976, 1,220 people have been executed in the South as opposed to only four in the Northeast), the oft-proven lack of deterrence value, the fact that more than 150 prisoners have been released from death row since 1973 upon new evidence, the spate of botched executions and the reluctance nationally to impose the penalty (295 sentenced to death in 1998, 42 last year).
For me, the most compelling argument has always been that state-approved killing of murderers argues that killing is a reasonable solution — that ultimate violence is the proper response to ultimate violence. The polls show that a majority of Coloradans support the death penalty. But the record shows that when it comes to applying the death penalty, Colorado passes.
In the end, we have to ask ourselves what point there is to a law that we have decided to basically reject. In the end, there can be only one answer.
Mike Littwin runs Sundays in the Aspen Times. A former columnist for the Rocky Mountain News and The Denver Post, he currently writes for ColoradoIndependent.com.