Colorado activists bank on midterm blue wave to pass 2019 law abolishing death penalty

Note: This story has been updated to include comments from 18th Judicial District Attorney George Brauchler.

Opponents of the death penalty — hoping to capitalize on the blue wave that swept Colorado in November’s midterm elections — plan a concerted effort to abolish capital punishment in the state after a string of failed attempts. 

“I have worked on this issue for several years but wasn’t able to get it passed,” said outgoing Democratic State Sen. Lucia Guzman, the former minority leader. “But I think this year is going to be the year.”

Guzman says she recently spent a lot of time with Rep. Jeni Arndt, a Fort Collins Democrat, who is working on a bill to do away with the death penalty in Colorado. In an interview with The Colorado Independent, Arndt said she called Guzman in June and asked for the lawmaker’s blessing to pick up the abolition fight. Arndt declined to discuss specifics until the draft bill is finalized but said among the outstanding questions is whether repeal would be applied proactively or retroactively — a question with major implications for Colorado’s three current death row inmates.

Activists opposed to the death penalty see Arndt’s legislation as having a better shot at passage given the new Democratic legislature and Gov.-elect Jared Polis’s signaling that he would sign a bill to abolish capital punishment.

Polis recently told 9News that he feels the death penalty is “not cost effective, it’s not an effective deterrent, and, you know, I do have a problem with some of the ways it’s been implemented from a racial bias perspective, as well.” 

Arndt called Polis’s statements a “game changer.” She already has won the support of Rep. Adrienne Benavidez, a Commerce City Democrat who Arndt says has signed onto the bill. The duo is now reaching out to lawmakers of all political stripes, trying to frame the issue as a moral rather than a partisan decision.

“I can’t imagine how you can compromise on this,” Arndt said. “It is a binary bill — this is an either-or push. I think what we have to do is build coalitions. I don’t think there is going to be a lot of persuasion.”

Currently, 20 states have banned the death penalty, while it remains legal in 30 states — including Colorado. Beyond the moral debate over whether the government should kill a killer, capital punishment opponents in Colorado argue that racial disparities in death penalty cases, the limited shelf life of lethal drugs, and the immense cost of such cases all weigh against keeping a rarely used punishment in place. The American Civil Liberties Union of Colorado estimates the average death penalty case costs taxpayers $3.5 million, compared to roughly $150,000 for life in prison without parole.

Colorado has executed 101 men in its history, all of them for murder. But since the U.S. Supreme Court reinstated the death penalty in 1978, the state has executed only one person in the last 50 years — convicted murderer and rapist Gary Lee Davis, in 1997.

National polls show that 56 percent of Americans favor the death sentence for a person convicted of murder, while 41 percent oppose it. A 2015 poll of 1,231 Coloradans found 63 percent supported the death penalty for the Aurora theater shooter while 32 percent said he should be sentenced to life in prison. But support for the death penalty has fallen over time, according to Gallup polling.

There are currently three men on death row in Colorado. All three of them are black: Nathan Dunlap, who murdered four people in an armed robbery at a Chuck E. Cheese pizza restaurant in 1993; Sir Mario Owens, who was convicted of murdering a young man and his fiancée, both of whom were going to testify against Owens’ friend Robert Ray in a murder trial — and Ray, who ordered the killing of the witnesses.

Those witnesses were Javad Fields — son of Democratic Sen. Rhonda Fields — and his fiancée, Vivian Wolfe. The murders sparked Fields’s foray into politics as a victims’ rights advocate. Reached by The Indy to talk about Arndt’s bill, Fields, a Democrat from Aurora, said: “I am kind of tired of arguing about the people who are on death row.” Rather, she said, she would like the legislature to focus on school funding and securing people’s health care.

Fields said she opposes the move to abolish the death penalty. She doesn’t buy the economic argument, either.

“How much does justice cost? What’s the value of someone’s life?” she asked.

Because district attorneys have the tool of threatening the death penalty, Fields argued, they can reach plea deals — as was most recently the case in Weld County where a man was sentenced to life in prison without parole after pleading guilty to killing his wife and two daughters. The defendant entered into the deal in exchange for prosecutors not seeking the death penalty.

What happens in the Dunlap case?

In 2013, Gov. John Hickenlooper granted Dunlap a temporary reprieve from his looming execution. This reprieve remains in effect until Polis or another future governor makes a decision on the case one way or another — or until voters or the legislature repeal the death penalty.

“I once believed the death penalty has value as a deterrent,” Hickenlooper wrote back then. ”Unfortunately, people continue to commit these crimes in the face of the death penalty. The death penalty is not making our world a better or safer place.”

During his re-election bid in 2014, Hickenlooper faced intense criticism from his conservative opponent, Bob Beauprez, who sought to make the election a partial referendum on Hickenlooper’s decision to grant Dunlap a temporary reprieve. The Democrat narrowly survived re-election.

Activists The Indy spoke with for this story would like to see the outgoing governor commute the sentences of Colorado’s three death row inmates but don’t see that as likely if Hickenlooper makes a bid for the presidency, which many expect. A spokesperson for the governor told The Indy that Hickenlooper is still reviewing pending clemency applications.

If Hickenlooper takes no action, the decision whether to offer the three men clemency — or not — would fall to Polis. During his gubernatorial run, the soon-to-be governor was vocal about his opposition to the death penalty but sidestepped questions, particularly about Nathan Dunlap’s fate.

“I have no problem following the current law,” Polis said during an Oct. 23 debate. “I don’t think it’s appropriate to comment on a specific case when what I would do as governor is review the case, talk to the victims, make an informed decision. I don’t think it’s a type of decision, literally a life and death decision, that should be politicized during a campaign.”

But with a legislative fix on the horizon and Dunlap’s reprieve remaining in effect unless Polis takes action to actively change it, the incoming governor will likely play the wait-and-see game rather than take executive action and expose himself to political backlash.

A spokeswoman for Gov.-elect Polis declined to comment on whether the Boulder Democrat plans to address the death penalty issue once he takes office but confirmed he is open to the idea of signing a bill seeking to end the death penalty in Colorado.

Activists believe they have learned from past failures

Last Tuesday, several activist groups and individuals, gathered by the ACLU of Colorado and Coloradans for Alternatives to the Death Penalty, met at the Capitol to discuss strategies to shepherd a bill through the legislature.

Although the activists like their chances for success in this upcoming legislative session, five unsuccessful legislative repeal attempts since 2000 serve as a cautionary tale.

In 2012, Democrats won control of both chambers of the legislature, and in Hickenlooper, they had one of their own in the governor’s mansion. But following the deadly Aurora theater shooting, the 2013 legislative attempt to repeal was upended by Hickenlooper’s announcement he would not sign such a measure.

Now, things are different, activists believe.

“We did a legislative survey [during the campaign] that asked for candidate thoughts, and we received many responses back from candidates who have since been elected that they were very supportive of a repeal,” said Dave Sabados, executive director of the Coloradans for Alternatives to the Death Penalty Foundation. Add to that Polis’s positive signs from the campaign trail and the fact that nobody has been sentenced to death for almost decade in Colorado, despite some high-profile trials such as that of the Aurora theater shooter — and Sabados and his allies feel good about their chances.

“If [District Attorney] George Brauchler can’t get the death penalty for the Aurora theater shooter, then this is a waste of taxpayer time and money,” abolition bill sponsor Rep. Arndt said.

A conservative backlash to the death penalty

“I don’t think the No. 1 reason for this effort is political changes in the legislature,” said University of Colorado-Boulder sociologist Michael Radelet, who studies capital punishment and favors its abolition. “I think the No. 1 reason for it is steadily decreasing support for the death penalty, sort of a general phenomenon that is occurring throughout the country, really throughout the world. For example, Washington state about a month ago abolished the death penalty.”

Another state that did away with the death penalty — at least temporarily — not long ago was Colorado’s neighbor, Nebraska. The legislature passed such a bill in 2015 on a 32-15 vote and even overrode Gov. Pete Rickett’s veto, 30-19.

But Rickett’s wealthy family funded a petition drive for a ballot measure to reinstate the death penalty. Opponents sued to stop him, but in the summer of 2016 the Nebraska Supreme Court ruled the ballot measure constitutional. It ultimately passed that fall, 61 percent to 39 percent, restoring capital punishment in the state, which now has 12 inmates on death row.

Are Sabados and other abolitionists afraid of a similar backlash in Colorado? Not really.

“I think Nebraska was a pretty unique situation where you had one wealthy donor who decided to take on the issue,” Sabados said. “We haven’t heard anything similar out here.”

Activists believe proponents of the death penalty do not have the will, numbers and cash to go through the costly process of asking voters to repeal a possibly successful bill in the legislature. The “Raise the Bar” initiative Colorado voters approved in 2016 imposes much tougher hurdles for those seeking a ballot measure.

“One of the more interesting things we’ve seen over the last few years is a conservative, Republican anti-death penalty argument being made,” said CU professor Radelet. “That has to do with fiscal integrity because it just costs so much money. It has to do with the recognition that the death penalty is a government program and as such is less than perfect, and it has to do with religious opposition growing.”

He points out that Pope Francis recently came out with a firm statement saying the death penalty is not permissible under any circumstances.

“You can call the Catholics what you will, but you can’t call them liberal,” Radelet quipped. “It is really a conservative backlash we are seeing in many places. It is just so damn expensive.”

Brauchler’s loss a sign of things to come?

During the recent midterm campaigns, anti-death-penalty activists not only celebrated Democratic wins in the legislature and the governor’s race, they also paid close attention to who the next attorney general would be.

That race pitted 18th Judicial District Attorney George Brauchler, perhaps the state’s most vocal supporter of the death penalty and the prosecutor in the Aurora movie theater mass shooting, against Phil Weiser. Weiser personally opposes the death penalty for cost reasons and juries’ reluctance to give it, but he also said on the campaign trail that unless the legislature passes a repeal bill, it would be his job as attorney general to defend existing law.

“If the death penalty was the political magnet it was 20 years ago, George Brauchler would not have gotten beat in the attorney general race,” said Radelet. “He is the best-known prosecutor in the state. The sole reason for his notoriety is his love for the death penalty.”

Brauchler lost his AG bid to Weiser amid the statewide blue sweep. But interpreting his loss as a vote on the death penalty is “wishful thinking,” Brauchler told The Indy.

“I talked more about my service in uniform than about the death penalty on the campaign trail,” Brauchler said. “Should the election be considered a referendum on service in uniform or the National Guard?”

Brauchler said polling shows that support for the death penalty is still “way above 50 percent everywhere.” To him, the question of whether or not to abolish the death penalty should be put to voters directly rather than addressed by the legislature — a position that echoes what Gov. Hickenlooper said when he granted the Dunlap reprieve in 2013.

“Repeal of the death penalty ought to be raised with the people of Colorado and not just their elected representatives,” Hickenlooper wrote back then, reasoning why he discouraged legislative abolition efforts that year.

“Why rely on some scientific poll when we can have an actual poll?” Brauchler asked. “My guess is the people who want to strip away the death penalty will talk about polling all day; but at the end of the day they are scared of [voters] because they know exactly what you and I know the voters will do, which is they will vote to have the death penalty for the worst of the worst offenders.”

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