Colorado is one of 32 states that provides for capital punishment. It is also a state that has used the death penalty sparingly. Gov. John Hickenlooper recently called for a “conversation” about the death penalty. He will get this as the issue becomes politicized over the coming months leading to this November’s election, when his run for a second term will be decided.
While the federal government allows for the death penalty (three executions in the last 26 years; the last was 2003), it is in the states where capital-punishment politics is most pronounced and where most executions take place. Eighteen states have abolished the death penalty. Texas, though, has executed the most (more than 500) since 1976 when the Supreme Court held the death penalty constitutional after a 10-year period when no executions occurred. Many states providing for executions have only put a handful of prisoners to death since then. Some states have elaborate – and expensive – procedures to ensure that those who are sent to death row are guilty beyond any doubt. Other states are not as conscientious in safeguarding against the errors that speed the conviction of those accused of heinous crimes. Over the past three decades, 144 death row convicts have been exonerated, a disturbing number that illustrates the fallibility of the criminal justice system.
As the proceedings in the James Holmes case are resolved before his trial for the 12 deaths and 70 injured resulting from the 2012 Aurora theater shooting, Colorado’s death penalty is center stage. The prosecution rejected an offer from Holmes’ defense to have him plead guilty and serve life in prison without possibility of parole. The last execution in the state occurred in 1997 when Gary Lee Davis was given a lethal injection after his conviction a decade earlier for the kidnapping, rape and murder of a woman.
Hickenlooper is not tied to the Holmes case. But, he is to that of Nathan Dunlap, who was 19 years old when he killed four employees (three teenage workers and the manager) of a pizza parlor in Aurora in 1993. Dunlap was convicted of the murders in 1996 and sentenced to die. The U.S. Supreme Court rejected his last appeal in February 2013; his execution was set for August 18, 2013. In May 2013, Hickenlooper issued an executive order giving Dunlap, now 38 years old, a “temporary reprieve” from the execution. Hickenlooper labeled Dunlap’s crimes “horrendous” but said his concerns about the fairness of the death penalty prompted the decision. Should Hickenlooper be defeated for re-election, his successor could reschedule Dunlap’s execution.
A Colorado governor can grant clemency to a death row inmate, which would mean the inmate would serve life in prison without parole. A governor can also pardon a capital defendant, an action absolving the person of the crime for which he was convicted. In early 2011, Gov. Bill Ritter granted such a pardon posthumously to Joe Arridy who had been convicted of murder and executed in 1936. Ritter’s actions were based on the probability that Arridy was not the person responsible for the murder – there was a confession by another individual – and Arridy’s low IQ of 46, which made his behavior like that of a child. In his press release Ritter added: “Pardoning Mr. Arridy cannot undo this tragic event in Colorado history. It is in the interests of justice and simple decency, however, to restore his good name.”
Unlike Arridy’s situation, that of Dunlap’s will become a political issue this summer during the gubernatorial campaign. Hickenlooper, a Democrat, is not an opponent of the death penalty – though neither is he an obvious proponent, as are his challengers. According to those favoring his execution, Dunlap received a fair trial, his appeals were heard, he showed no remorse for his crimes and justice for his four victims demands his execution. Opponents of his execution claim Dunlap suffered abuse as a youngster, had undiagnosed bipolar disorder at the time of the murders and that his race worked against him. The other two inmates on the state’s death row are also African American.
A 2011 poll showed Coloradans evenly split on repeal of the death penalty in favor of life in prison without possibility of parole: 47 percent for and 47 percent against. If Hickenlooper were to have allowed Dunlap’s execution to proceed, he would have been criticized by some, though it is doubtful he would have taken any political hits given the pro-death penalty stance of his challengers. As it is, Hickenlooper’s “temporary reprieve” will likely hurt him politically because opponents can spin the issue to make it appear he sympathizes with Dunlap rather than his victims.
Bill Clinton was accused of using the death penalty to his political advantage when he was governor of Arkansas and contemplating a run for the presidency. He allowed three executions to take place during his last term in the 1990s; being a southern governor opposed to the death penalty was tantamount to throwing an election.
The death penalty is more than a symbolic issue in Colorado, but there are other pressing issues that should be front-center in the gubernatorial debate including the state of the economy, fracking, climate change and education.
Justice may well demand Dunlap’s execution, but politics should not override the legitimate concerns of many who are well aware of the deficiencies in how the criminal justice system operates.
John Culver is a retired professor of political science. He lives in Durango. Reach him at john.culver3@gmail.com.
