Governor Jared Polis has signed a bill to repeal the death penalty. The measure passed the Democratic legislature with limited bipartisan support earlier this spring and was sent to him shortly before lawmakers suspended their session.
This makes Colorado the 22nd state to abolish capital punishment, and it marks the conclusion of reform efforts that began at the Colorado State Capitol in 2007.
“It's important that we end that I think it has been a very discriminatory practice, not just towards people of color, but people within geographic areas within the state,” said Democratic Rep. Adrienne Benavidez of Adams County, one of the law's main sponsors. Prosecutors and juries in different parts of Colorado have shown different levels of comfort with the penalty.
In normal times, the signing of such a historic bill would likely be a news event, with the champions of abolition gathered around to celebrate. But Polis followed his own recommendations for social distancing, instead announcing the signing through a press release after the fact.
At the same time he announced the bill signing, the governor also commuted the sentences of three men on death row: Robert Ray, Sir Mario Owens and Nathan Dunlap. They will now serve life in prison without possibility of parole. Their cases were not directly affected by the repeal, leaving their fates up to Polis.
“Commutations are typically granted to reflect evidence of extraordinary change in the offender. That is not why I am commuting these sentences to life in prison without the possibility of parole," Polis said in the press release announcing his decision. "Rather, the commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado."
However, Polis' decision to commute the three sentences was met with blistering criticism by District Attorney George Brauchler, whose predecessors prosecuted all three men. Brauchler said the governor had failed to confer with his office, as required by law. And he excoriated the underlying decision to end the death penalty.
"We will save no money. We are not safer. We are not a better people. And the only lives spared are those who commit the ultimate acts of evil against us," Brauchler said in a statement.
Long-fought victory for abolitionists
This is the sixth time that state lawmakers have tried to repeal the death penalty in recent years -- and the debate extends more than a century. Colorado lawmakers first abolished the death penalty in 1897, only to reinstate capital punishment a few years later -- an effort to discourage extrajudicial mobs from lynching prisoners.
This is the latest milestone in the United States’ dramatic shift on capital punishment. Nationwide, support for the death penalty reached a high of 80 percent in 1995, when Democrats and Republicans alike demanded a crackdown after years of climbing violent crime rates, according to Gallup polling.
Today, public opinion is split near evenly.
In some states, the death penalty was repealed only after dramatic scandals, especially the exoneration of men on death row. Colorado’s situation is the reverse; there’s no dispute that the three men on death row committed the crimes they were sentenced for.
Instead, the punishment all but eroded away here. It’s been a decade since a Colorado jury handed down a death sentence. No one has been executed in this state since 1997.
“Colorado is following the trend that we're seeing in the West, which is a steady movement away from the death penalty, first in practice, and then in abolition,” said Robert Dunham, executive director of the Death Penalty Information Center, a national nonprofit that tracks the issue.
“So, we're seeing states moving away from it. We're seeing juries moving away from it. And we're seeing the executions, even though the death penalty is on the books, aren't happening.”
Colorado jurors have been reluctant to apply the death sentence even in high-profile cases like the Aurora theater shooting or the slayings of five bar patrons in Denver, and the volume of capital sentences nationwide has dropped by nearly 90% since its peak in the ‘90s.
But until now, the threat of death has loomed over criminal cases in Colorado. Conservative prosecutors say it has helped them win plea deals and avoid costly trials for the most horrific crimes. There’s also the idea that the death penalty discourages crime, which is hotly disputed by opponents and some researchers. A committee of the federally chartered National Research Council found that existing studies are too flawed to make any connection.
On the other side, reformers argue that the death penalty is cruel, that it puts innocent lives at risk, and that the endless debate has drawn attention away from other important questions.
Twenty-eight states still have death-penalty laws.
The road to repeal
Until the turn of the millenium, repealing the death penalty was practically a taboo subject, nationally and in the Colorado legislature. “It was difficult to ever vote on anything that made you look like you weren’t tough on crime,” said Paul Weissmann, a former state lawmaker and current treasurer for Boulder County.
In the state Senate, “there were maybe seven of us that consistently opposed the death penalty and fought hard then to repeal it,” he said. “Seven out of 35 (senators) isn’t a great number to get that done.”
But the politics of the issue started to shift. Colorado’s last execution -- of the murderer Gary Lee Davis -- was in 1997. And the state hadn’t executed anyone else for 30 years prior, while other states killed dozens or hundreds.
“It’s pretty much been a non-death penalty state for years, functionally” Weissmann said. He thinks that gave momentum to the abolition effort.
Repeal bills started making headway in the legislature by the 2000s. Weissmann’s 2009 effort passed the House and failed in the Senate by a single vote. In 2013, after Democrats regained control of the legislature, reformers tried again.
“I actually thought it would pass. I was very, very hopeful. We had spent a lot of time educating members about the issue,” said former representative Claire Levy. She blames its failure on then-governor John Hickenlooper, now a primary candidate for U.S. Senate.
Initially, Hickenloper expressed ambivalence, “but he was not closing the door to the possibility that he would sign (the bill),” Levy said. But she said support crumbled when Hickenlooper eventually signaled that he might instead veto.
“Because of that, some members of the House that were in swing districts felt that if the bill wasn’t going to pass, wasn’t going to be signed into law, they didn’t want to take a risky vote," Levy said.
Months later, Hickenlooper was credited with effectively putting a moratorium on capital punishment when he indefinitely delayed the execution of Nathan Dunlap, who murdered four people in a Chuck E. Cheese restaurant in 1993.
In a written statement, Hickenlooper didn't directly address questions to his campaign about the earlier repeal effort. He said he was "glad that the state has taken this action," adding that he supported repeal because the death penalty "disproportionately and unjustly affects the poor and communities of color, costs millions of dollars, and by every measure it makes our community no safer."
In 2018, reformers thought their time had finally arrived when Democrats retook full control of state government with the “blue wave” midterm elections.
But their expected victory was delayed by emotional arguments within the Democratic Party, largely because of one lawmaker’s tragic experience: State Sen. Rhonda Fields’ son and his fiancee were murdered before he could testify in a murder trial. The perpetrators are two of the three men on death row in Colorado.
Fields has long maintained that repealing the death penalty would be a miscarriage of justice for her son and his fiancee. "We have kept people alive who are guilty of committing murder, mass murders," Fields said earlier. "We should maintain justice, and we should maintain the rights of victims and our ability to seek justice."
Fields accused repeal advocates of trying to rush the bill through without giving opponents a fair chance to organize. In the end, her objections over process undermined support for the bill in the Senate and sponsors ended up pulling the measure.
This year, the goal was the same, but Gonzales and the other sponsors said they were committed to a transparent process that would let the bill stand on its own merits. With new support from a few Republicans, they mounted a months-long effort that drew dozens of crime victims, lawyers, reformers and others to the Capitol’s chambers and committee for debates that stretched late into the night.
They came from every background and seemed to make every possible point. Some who wanted to keep the penalty said that repeal would end their chance at justice for a loved one. Numerous prosecutors testified the state would lose its ultimate tool, giving it litlte recourse for horrific crimes, especially those committed by life prisoners.
But lawmakers heard as well from numerous relatives of murder victims, who said that death would offer them no healing. Gail Rice, 72, is the sister of Bruce VanderJagt, a Denver police officer who was murdered in 1997. The killer died at the scene, but his death offered no closure, an experience that shaped her opposition to capital punishment
“Partly, I think (other survivors) have been led by prosecutors and politicians and sometimes family members too, to this hope that they're going to find peace. They're going to find closure. Everything is going to be fine,” she said in an interview. “And, and that's false.”
Death row to empty
The repeal bill left Gov. Jared Polis with a big question: What should he do with the three men still on death row? The law does not apply retroactively, so without the governor exercising his power of clemency, they would still potentially be on a path to execution. Polis chose to settle the question at the same time he signed the new law, reducing the sentences of all three to life without parole.
“While I understand that some victims agree with my decision and others disagree, I hope this decision provides clarity and certainty for them moving forward. The decision to commute these sentences was made to reflect what is now Colorado law, and done after a thorough outreach process to the victims and their families,” the Governor said in his statement.
Other governors have taken different approaches.
Martin O’Malley didn’t make a final decision about the prisoners on his state's death row until two years after he signed Maryland’s repeal law, despite his leading role in abolition. With just a few weeks left in his term, he commuted four men’s sentences to life-in-prison.
In New Mexico, governors left two men on death row for a decade after abolition, until the state’s supreme court spared them. Ultimately, most death-row inmates end up with a life sentence after their states pass repeal.
There’s another wrinkle in Colorado, too. Adams County District Attorney Dave Young is currently pursuing a capital case in the killing of sheriff’s deputy Heath Gumm. The Colorado law also won’t apply retroactively to that case. So if the jury chooses death, it will leave Polis with one more decision to make.
In a world without the death penalty, prosecutors like Young worry that they won’t have leverage to encourage guilty pleas in the most serious trials.
“Without the leverage, the entire judicial system would be bogged down,” Young said at a January meeting.
Denver District Attorney Beth McCann countered that idea, saying that the threat of death can unbalance the entire system -- leading defendants to give up their rights. “It’s a sledgehammer,” she said at the meeting.
Now, as that “sledgehammer” disappears into Colorado’s past, other criminal justice reform questions may take center stage.
“People are able to take a look at other problems, that are less magnified, and get down to the small details,” Dunham said of what happens in states after abolition.
“And we also see that there is a lot less emotional turmoil. When people are dealing with the other issues, they can look at it much more rationally. The death penalty debate soaks up a lot of emotions and, and reasonably so.”
CPR's Bente Birkeland contributed to this article. This article was updated with comment from Hickenlooper's campaign.
