Faces of Death: Capital punishment in Colorado could be the year’s big issue

Questions about the death penalty in Colorado are bubbling up before the start of the legislative session that begins next month.

They include: How much does capital punishment cost Colorado taxpayers? Should the state keep the death penalty or scrap it like neighboring state Nebraska? Might a statewide ballot initiative in 2016 emerge to put the question to voters? And if we keep the death penalty, should prosecutors get a second chance with a new jury if they can’t convince the first to put someone to death?

Another question: Gov. John Hickenlooper has said Colorado needs to have a big statewide conversation about capital punishment. Did we ever really have it?

Last night this boiled over on Twitter when the district attorney for the 18^th Judicial District, George Brauchler, who prosecuted the Aurora theater shooting death penalty case, took his complaints about transparency in the costs of capital punishment to social media.

So what was Brauchler’s tweet storm about last night?

First, let’s note the Arapaho County DA and Twitter have history.

Earlier this year, the judge in the Aurora theater shooting trial reprimanded Brauchler for a tweet he’d sent during court proceedings. Brauchler said he meant to send it as a direct message and apologized.

Now, six months later, one of Colorado’s rising stars on the Republican depth chart is again mixing it up on social media. And it still has to do with that high-profile death penalty trial from over the summer.

Brauchler snarked on Colorado’s Office of the State Public Defender for lack of transparency.

Absolutely. And transparent, just like the public def…wait, never mind. https://t.co/4qCGPoJQvu

— George Brauchler (@GeorgeBrauchler) December 14, 2015

The Arapahoe County DA was responding to criticism that he’d spent too much taxpayer money to unsuccessfully persuade a jury to execute theater shooter James Holmes.

Inaccurate. I did not spend “millions of tax $” to seek justice for a mass murderer and child killer. https://t.co/vvjK6j6uGA — George Brauchler (@GeorgeBrauchler) December 14, 2015

He didn’t stop with his remarks about the state public defenders and transparency.

That must be why they get PERA and are paid more than their prosecutor counterparts across Colorado. https://t.co/OMtzbYmkxE

— George Brauchler (@GeorgeBrauchler) December 14, 2015

And he indicated taxpayer costs in the trial are being inaccurately portrayed in media. Responding to someone who asked if figures quoted by a source in a newspaper article were inaccurate, Brauchler tweeted:

As to cost? Yep. https://t.co/KxTu5Gtgns — George Brauchler (@GeorgeBrauchler) December 15, 2015

Brauchler pointed to his office’s website when asked to reveal costs the prosecution incurred during the trial.

Updated costs can be found–as they could be from the beginning of the trial–at https://t.co/o6wEaEXGa6. https://t.co/5DbZZElSCE

— George Brauchler (@GeorgeBrauchler) December 15, 2015

So do we already know the true costs of the Aurora theater shooting death penalty case or not?

No.

Both Brauchler and Doug Wilson, who heads the Office of the State Public Defender, say the public hasn’t seen the total costs. Wilson’s office released an aggregate figure showing how much was spent on capital cases— $6.3 million on 10 cases since 2002— but didn’t break them down by case. Wilson says he’s ethically bound not to divulge information about particular cases. Brauchler says that seems silly.

Well, how can we find out the true costs for everything?

Likely it will take a lot of open records requests. But there could be another way.

Lawmakers this session could convene a legislative hearing if they are so inclined. That process could happen formally or informally. It could come in the form of an existing committee or a new select committee set up by leadership specifically to deal with this issue.

Committee members could invite all the stakeholders to the table: prosecutors, public defenders, agency employees from the departments of Corrections, Human Resources, Public Safety and others, staffers from the attorney general’s office, local sheriffs, the Colorado Bureau of Investigation, members of the judicial department and local law enforcement — whoever. They could bring in every government entity involved in dealing with death penalty cases (or just a specific case) to ask about particular costs.

One important point is that legislative committees can obtain subpoena power and can put people under oath, but it’s not necessarily easy and is rarely done. In Colorado, to issue a subpoena for someone to testify before a committee would require approval from the General Assembly.

Ugh. Haven’t we talked enough about the death penalty in Colorado?

Well, that depends on who you ask.

In 2013, Democratic Gov. John Hickenlooper said he hoped to start a conversation about capital punishment when he granted a reprieve of Nathan Dunlap who killed four people at a Chuck-E-Cheese in 1993. Since then, Hickenlopper won re-election during a race that at times seemed to revolve wholly around Dunlap’s fate. At one point the state’s largest newspaper ran a headline about how pro-death penalty supporters could make Hickenlooper pay. Two thirds of Coloradans polled agreed with the death penalty.

Two years ago, Hickenlooper indicated he would veto a bill to repeal the death penalty that was being supported by Democrats. The measure failed. A Democratic lawmaker’s bill to let voters in 2014 decide whether to keep or scrap the death penalty in Colorado also didn’t pan out.

In July, The Denver Post published a story under the headline “The death penalty in Colorado: Has there been enough conversation?” In it Hickenlooper indicated there had. Others disagreed.

Now, five months later, DA George Brauchler and Public Defender Doug Wilson can at least agree on one thing: The state has not had a real conversation about capital punishment.

So what might that conversation look like?

Brauchler says he’d like to see a statewide ballot measure for 2016.

“What I’d like to see is, if we’re going to have this discussion, one way to do it is put something on the ballot for the voters to discuss,” he told The Colorado Independent in a recent interview. “You want to end the death penalty? Put a ballot initiative on there … I would think that you’re going to get the best turnout and the best sense of people in a presidential year.”

If a ballot measure does emerge, Brauchler says he’d likely be involved.

“I’d want to participate in the information part of that and say ‘Look, here’s why I think the death penalty is appropriate to have,'” he says.

For his part, Wilson has floated the idea of a possible statewide task force or blue-ribbon commission to examine capital punishment in Colorado in depth.

In 2006, the New Jersey legislature created a study committee that was charged with researching all aspects of the death penalty in that state. The following year, the panel recommended abolishing capital punishment and replacing it with life in prison without the possibility of parole. The New Jersey legislature abolished the death penalty that year.

Wilson says he’d also like to see a legislative committee bring everyone to the table. What he doesn’t think counts is “trying to to impact legislation by tweets.”

The legislative session begins next month, and already at least one lawmaker has said she plans to carry a measure dealing with the death penalty. Republican Rep. Kim Ransom of Douglas County is looking at whether prosecutors should get a second chance with a jury if the first doesn’t reach a unanimous execution verdict in a death penalty case. In Colorado, death sentence verdicts must be unanimous.

Photo credit: Photo credit: Hans Van Den Berg, Creative Commons, Flickr.