Colorado’s Senate Judiciary Committee on Wednesday advanced a controversial bill to repeal the death penalty after nearly six hours of testimony, and the measure now heads to the full Senate. But Colorado’s public sector attorneys are squarely divided on the issue. Through testimony, district attorneys and public defenders sparred — both directly and indirectly — with each other over talking points favoring or criticizing the ultimate penalty the state can mete out.
As a result of district attorneys’ split on Senate Bill 182, the Colorado District Attorneys Council has not taken a position on the measure. The district attorneys testified instead in their individual capacities.
They quoted proverbs about the morality of capital punishment and presented competing sets of data about its costs and potential for bias against certain demographics. And they weighed in on considerations such as whether the legislature should decide the issue and capital punishment’s effectiveness as a deterrent.
For the Legislature or for Voters?
Some district attorneys’ opposition to Senate Bill 182 stems from their belief the fate of capital punishment in Colorado should lie in the hands of voters, not the legislature. Two such dissenters testifying were George Brauchler of the 18th District and Dave Young of the 17th District.
Notably, district attorneys on both sides of the fence cited the negative influence of politics to support their positions on whether voters or the legislature should make the decision about capital punishment.
Beth McCann, Denver’s district attorney, said such a significant federal constitutional question should be left to the will of voters. She pointed to the role of money in influencing the results of referendums.
“I don’t think issues that involve fundamental fairness and equal protection should be decided by a popular vote,” she said. “An issue as critical as the taking of another person’s life should not be determined based on the amount of money spent by either side.”
By contrast, Young told Law Week he believes the weight of the issue means a group of legislators shouldn’t decide the future of capital punishment on behalf of Colorado’s population. When asked how to decide whether changes to the state’s court system should be decided by voters rather than lawmakers, he said he believes the legislature should not treat changes to the court system as cookie-cutter issues that have one-size-fits-all solutions. Changes involving technicalities in law, he said, perhaps are the types of issues well-suited for the Capitol.
Colorado briefly abolished the death penalty in 1897 and reinstated it in 1901. It was again reinstated in 1979 after a U.S. Supreme Court case stopped executions nationwide in 1972.
But 5th District Attorney Bruce Brown said he doesn’t have qualms about the legislature deciding the future of capital punishment. He trusts lawmakers have talked with their constituents enough, he said, to carry out their wishes.
“These are issues where we look to our leaders to give us guidance,” he said. “This is not a topic that has not been hotly debated and polled within our community, and so the legislators should clearly know where their constituents stand on this issue.”
As a Deterrent
District attorneys also sparred over the effectiveness of capital punishment as a deterrent for crime. McCann said the possibility of death did not deter the Aurora theater shooter, or the killer who stabbed five to death at Fero’s Grill and Bar. She added she believes life in prison without parole achieves the same goal as a death sentence: It’s unpleasant, she said, and it keeps the convicted person away from society.
“A sentence to life in prison is not a cake walk,” McCann said. She said the rarity of executions in Colorado makes capital punishment even less effective as a deterrent. The state last executed Gary Lee Davis in 1997.
Eyes on Other Components
Brown, the 5th District prosecutor, told Law Week that while he supports getting rid of the death penalty, he is paying attention to Senate Bill 182’s movement through the legislature to make sure it’s implemented constitutionally.
The bill states the death penalty repeal applies to people charged with capital crimes after July 1 of this year, but Brown said he believes the language creates a key discrepancy that may have constitutionality implications. For example, he said, what about people charged before July 1, but who have not yet been convicted? They may still receive the death penalty, but that would treat them differently than people who commit capital crimes before the statute goes into effect but are charged after July 1, for whom the death penalty would not be a possibility.
He added the latter situation would probably also give the three men currently on Colorado’s death row an avenue to challenge their capital sentences by saying they are being treated differently than other accused criminals under similar circumstances.
Brown said he believes drawing the line at charging is not the right way to distinguish eligibility for the death penalty if the repeal passes.
“I think you have to be consistent, and that all people who committed crimes prior to July 1 could be eligible for the death penalty,” he said, though he clarified he believes a death penalty repeal should apply retroactively, looking at the issue from a moral perspective. “Making the charging timing a distinguishing feature … I don’t think will pass constitutional muster.”
— Julia Cardi