The reality of evolving standards and the death penalty.

Author:Edwards, Daniel
Position:Part 1

The death penalty is not only a local issue, but a national issue as well. The vast majority of states have death penalty laws that are supported by as much as 78% of the population. Both the law and the citizens continue the call for the death of this narrow class of murderers who commit the most heinous crimes. The interpretation of polling data may be crucial in the analysis we do for our courts--and the data is misleading. Generalized philosophical questions of whether a person favors or opposes the death penalty only reveals those citizens who would automatically impose the death penalty or automatically impose a life sentence. More situation-specific questions in the polls have revealed that some of those who philosophically oppose the death penalty would vote for the death penalty.

As prosecutors seeking the death penalty for those few heinous murders, we are often confronted with a challenge to the death penalty by defense attorneys' allegations that the penalty fails to meet the constitutional evolving standards test.

ON DECEMBER 14, 2012, ADAM LANZA fatally shot twenty children and six adults after murdering his mother in Newtown, Connecticut. (2) Three people were killed and 264 wounded on April 15, 2013 when Tamarlan Tsarnaev and his brother exploded pressure cooker bombs. (3) Nidal Malik Hasan is charged with 13 counts of murder and 32 counts of attempted murder for the November 5, 2009 mass shooting at Fort Hood, Texas. (4) Is the death penalty constitutional? The United States is faced with horrendous murders and yet a vocal, activist anti-death-penalty minority has slowed death penalty prosecutions and executions to a crawl. This article will address the constitutionality of the death penalty statute in one state, Colorado.

A bill sponsored by Democrats in the Colorado General Assembly to repeal the death penalty died in committee on March 25,2013 after the governor voiced opposition to the bill. (5) Yet, on May 22, 2013, the same governor reasoning that the Colorado death penalty is "flawed," granted a reprieve to a self-confessed murderer of four people during a revenge and robbery spree in 1993. (6) The governor went so far as to say that the people are "divided on the question of whether a punishment of death or a punishment of life in prison without the possibility of parole should be the maximum penalty for criminals in Colorado." (7) The governor took this position after being informed that a district court judge had rejected defense claims that the death penalty was unconstitutional for failing to narrow the murderers eligible for the death penalty. (8) The governor took this position even though 67%-70% of Colorado citizens believe that the death penalty is the appropriate punishment under certain circumstances while only 27% of citizens believe that the death penalty should be repealed. (9) Death penalty opponents have called into question the constitutionality and efficacy of the Colorado death penalty statute. The questions asked by the opponents have been asked for over thirty years with the Courts answering that the death penalty is constitutional at every turn. They have generated an incorrect perception of the death penalty in Colorado. (10) This article addresses the misconceptions and misinformation that exist concerning this issue.

Horrendous Murders in Colorado.

On July 20, 2012, James Holmes allegedly murdered fifteen people and injured fifty others in his massacre at a movie theater in Aurora, Colorado. (11) The district attorney is seeking the death penalty. (12) The district attorney stated: "it is my determination and my intention that, in this case, for James Eagan Holmes, justice is death." (13) On October 17, 2012, Dexter Lewis stabbed five people to death in a Denver, Colorado bar. (14) The district attorney is seeking the death penalty. (15) The Denver district attorney said that the case "cries out for the death penalty, based on the number of victims, based on the number of aggravating factors that we have." (16) Edward Montour, serving a life sentence for the murder of his baby daughter, allegedly beats to death a guard in the Colorado Department of Corrections with a ladle. (17) Miguel Contreras-Perez, serving a thirty-five-year-to-life sentence for kidnap and sexual assault of a fourteen-year-old girl, allegedly murders one female guard while horribly cutting up another female guard. (18) Two individuals, Sir Mario Owens and Robert Ray, who had already committed one murder, plot and murder a witness to the first murder and his fiancee. (19)

Reprieve Granted Because of Purported "Flaws."

The Colorado governor granted a reprieve to an individual who was convicted of the murder of four people and the nearly fatal injuries caused another because there were "flaws" in the Colorado death penalty. (20) Nathan Dunlap had been charged for the December 14, 1993 murders, found guilty, sentenced to death by a jury, took advantage of his right to a direct appeal through the United States Supreme Court, and took advantage of postconviction proceedings through the United States Supreme Court. The governor indicated that the people were "divided on the question of whether a punishment of death or a punishment of life in prison without the possibility of parole should be the maximum penalty for criminals in Colorado." (21) The arguments made against the death penalty are the same arguments that have been made for over thirty years--and continually rejected by the courts.

Coloradans Support the Death Penalty.

An informal poll by the Denver Post indicated that 67% believed that Nathan Dunlap should have been executed instead of being reprieved. A poll released by Quinnipiac University published in the Denver Post indicated that 69 percent of Coloradans support the death penalty. (22) Yet what the Post found "revealing" that "53 percent said they thought the death penalty was applied fairly in Colorado, despite a mountain of evidence that its use in death-penalty eligible cases is quite arbitrary." (23) The Post, in what purports to be a news story, chose instead to editorialize and adopts the anti-death-penalty position. But where is this "mountain of evidence" and where is the factual support for the conclusion that eligibility is "arbitrary?" Colorado has had the death penalty and citizens have supported it since 1861, except for a four-year period between 1897 and 1901. (24) This article will demonstrate that what the Post supposes is merely speculation and conjecture and that the 53% are correct that the death penalty is applied fairly.

Recent Law Review Articles Critical of the Colorado Death Penalty.

The governor cited a study "co-authored by several law professors who claim to have shown that under Colorado's capital sentencing system, death is not handed down fairly." (25) While the Colorado eligibility determination requires a three-step analysis of statutory aggravating factors, mitigation, and weighing whether mitigation does not outweigh aggravating factors, the study argues that aggravating factors alone provide the constitutional narrowing and in Colorado are overly broad. That study has been rejected by a Colorado district court as flawed in its analysis. (26) The court in rejecting the study held that "the finding of a statutory aggravating factor, standing alone, is not sufficient to render a defendant eligible for the death penalty." (27) Another recent law review article was critical of the cost of Colorado's death penalty. This article was co-written by a criminal defense attorney who currently represents death penalty defendants without disclosing her obvious conflict of interest and her biased scholarship. (28)

Editorial Opposition.

The Denver Post, Colorado's leading newspaper, has come out against the death penalty. (29) An editorial on July 26, 2013 criticized the Denver district attorney's decision to seek the death penalty against Dexter Lewis. The decision, the Post opined, "could well mean that Lewis will be front and center in the news for many years--at least if he is convicted and sentenced to die--as endless appeals drain off both prosecutorial time and taxpayer dollars." (30) The editorial acknowledged that in 2014, an election year, "a majority of voters may well support keeping the penalty in place." (31)


This article will first look at the development of the death penalty and its constitutional requirements as addressed by the United States Supreme Court. The discretion of the prosecutor in seeking the death penalty is then discussed, including complaints concerning race and location. The history of the Colorado death penalty is important in understanding how the death penalty developed in Colorado, the constitutional setbacks that have since been corrected, and the constitutionality of the current statute.

Second, this article will explore how the Colorado death penalty constitutionally narrows the group of murderers eligible for the death penalty and the statutory aggravating factors are constitutional. The Colorado Supreme Court has determined that the death penalty statute as currently written is constitutional and does not violate due process or the cruel and unusual clauses of the United States or Colorado Constitutions. The evolving standards test developed by the United States Supreme Court is not violated because there is massive death penalty support shown by the citizens of Colorado. The death penalty is specifically authorized in the due process clauses of the United States and Colorado constitutions. While only bifurcation between guilt and punishment is constitutionally required, the trial courts in Colorado have experimented with trifurcation and quadrification of the proceedings.

Third, this article explains how in death penalty cases a deliberate and necessarily slow process is necessary to ensure the defendant has fair and meaningful trial, appellate, and post-conviction proceedings. However...

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