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Colorado lawmakers will consider whether to repeal the death penalty again, as factors align for passage

The Colorado legislature has debated getting rid of capital punishment four times since 2000. The bill being brought this year wouldn’t send the question to voters, as proponents of lethal injection want.

Surrounded by family and friends, Rhonda Fields, center left, and Christine Wolfe, center right, the mothers of Javad Marshall-Fields and Vivian Wolfe, approach the site where the couple was gunned down June 20, 2005, at the corner of East Idaho Place and Dayton Street, during a candlelight vigil Thursday, July 21, 2005. The shooting led to the death penalty conviction of Robert Ray and Sir Mario Owens. Rhonda Fields is now a state senator. (AP Photo/Aurora Sentinel and Daily Sun, Patrick Kelley)
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For the fifth time in a dozen years, Democrats are pushing to abolish the death penalty in Colorado. And as they revive a conversation that has ebbed and flowed at the Capitol for more than a decade,the work appears to have more momentum toward passage than ever before.

Gov. Jared Polis, a Democrat, supports abolition and his party controls the state’s House and Senate. Those three factors, which have not lined up for at least the past two decades, give the measure an open lane toward becoming law.

But capital punishment is a moral question about which public opinion is ever-shifting and crosses party lines. Two prominent Democrats in the Colorado General Assembly this year are the closest in the statehouse to the issue and are also among the death penalty’s most compelling advocates.

Of the three men on Colorado’s death row, two were convicted of killing state Sen. Rhonda Fields’ son and his fiancée in 2005. State Rep. Tom Sullivan’s son was killed in the 2012 Aurora theater shooting, a case that led to the gunman’s conviction, but no death sentence.

Even with the wind at their backs, proponents of abolishing the death penalty in Colorado expect their bill to lead to an emotional and complex debate. There’s also disagreement about whether repealing the death penalty is something state lawmakers should decide or whether it should go to a vote of the people.

Even one prominent opponent of capital punishment, Boulder County District Attorney Michael Dougherty, would like to see citizens make the decision.

“I don’t want to pretend that I have any of the solutions to address what has happened, what has been done or what has taken place in the past,” said state Sen. Julie Gonzales, a Denver Democrat who is among those leading the repeal effort. “What I am asking for is an opportunity to think about: What are we going to do as a state moving forward, in terms of whether or not we still believe that the state of Colorado should be allowed to punish people by death? That’s the question on the table.”

From left: State Rep. Tom Sullivan, a Centennial Democrat, and state Sen. Rhonda Fields, an Aurora Democrat. Sullivan’s son, Alex, was murdered in the 2012 Aurora theater shooting and Fields’ son, Javad, and his fiancee, Vivian Wolfe, were killed in a 2005 shooting. Both Sullivan and Fields are against repealing the death penalty. (Photos by Kathryn Scott, Special to The Colorado Sun)

Year after year, the Colorado legislature has answered that question with a “yes.” Efforts to abolish the law failed in 2007, 2009, 2013 and 2017.

In that span, however, Colorado juries have repeatedly rejected sentencing murderers to death. And, the one man who was slated to die by lethal injection, Nathan Dunlap, was indefinitely spared in 2013 by then-Gov. John Hickenlooper, who called for a statewide conversation on the issue. Dunlap remains on death row.

Whether the debate Hickenlooper called for has really happened is a matter of opinion, but capital punishment likely will be forced back into the spotlight in Colorado in the coming days.

The history of capital punishment in Colorado

The bill to take the death penalty off the table as a form of punishment in Colorado was introduced at the legislature on Monday as Senate Bill 182.

The measure would not allow district attorneys to seek death in charging defendants after July 1. What the legislation would not do is impact the pending death penalty cases in Colorado — there are at least three — or the three men who are currently on the state’s death row.

Those three waiting to die by lethal injection include Dunlap, who shot and killed four people at an Aurora Chuck E. Cheese in 1993, and Sir Mario Owens and Robert Ray, who in 2005 killed Javad Marshall Fields and his fiancée, Vivian Wolfe. The appellate hearings for Owens and Ray are ongoing.

From left: Nathan Dunlap, Sir Mario Owens, Robert Ray. (Provided by the Colorado Department of Corrections)

Prosecutors have tried in recent years to seek capital punishment in a handful of cases, but juries rejected their efforts. Not since June 2009, when Ray was sentenced, has a Colorado jury signed off on death.

Three cases since then have made it to a death penalty sentencing hearing: James Holmes, who in July 2012 killed 12 people and injured 70 more in an attack on a movie theater in Aurora; Dexter Lewis, who in October 2012 killed five people in a robbery of Fero’s Bar & Grill in Denver; and Glen Galloway, who killed his ex-girlfriend in Colorado Springs in May 2016, a day after murdering his friend.

But juries could not unanimously decide on death sentences in those cases, meaning the defendants received life in prison, instead.

There are questions, as well, about whether Colorado could even carry out the death penalty since it appears to lack the combination of drugs needed to complete lethal injection as prescribed in state law. Unlike other states, Colorado does not allow for capital punishment to be carried out in any way other than lethal injection.

The last execution in Colorado was in 1997, when Gary Lee Davis died by lethal injection for the 1986 kidnapping, rape and murder of Virginia “Ginny” May in Arapahoe County.

Before Davis, the last person to be executed in Colorado was Luis Jose Monge in 1967. He was convicted of killing his pregnant wife and three of his 10 children. There have been 103 people executed by legal order in Colorado, dating back to before statehood.

“So fundamentally wrong”

If lawmakers decide to abolish the death penalty this year, they would follow five other state legislatures that have repealed capital punishment laws in recent years. There are 19 states in the U.S. that don’t allow the death penalty.

Data from the National Conference of State Legislatures. Map by Jesse Paul, The Colorado Sun.

Polis declined an interview with The Colorado Sun through a spokeswoman, but in a statement he said he’s “been clear that if the legislature passed a bill to abolish the death penalty, I would sign it.” In an interview with Colorado Public Radio, he suggested that if a bill abolishing capital punishment were to pass he “certainly take that as a strong indication that those who are currently on death row should have their sentences commuted to life in prison.”

The arguments against the death penalty fall along the lines of race, judicial mistakes, morality and cost.

“To me, the entire criminal justice system has been built on a legacy of controlling too often the lives of people of color,” Gonzales said. “The entire criminal justice system is so intertwined with the issues of racism and the legacies of racism. The issue that has been, to me, sort of the most concrete demonstration of that control of the criminal justice system: Whether the system itself can actually take your life. Not just your liberty, not just your opportunity, but life itself.”

She added: “I’ve just been struck by that as so fundamentally wrong, particularly when you zoom out from an individual case and you start to look at systematically — the fact that so many of the people who are actually sentenced to the death penalty are more often than not black men.”

State Sen. Julie Gonzales, a Denver Democrat, speaks at a campaign event for Colorado Democrats in Denver’s Washington Park on Tuesday, Oct. 23, 2018. (Jesse Paul, The Colorado Sun)

All three men on Colorado’s death row are black. A University of Denver law school study in 2015 found that Colorado prosecutors were “more likely to seek the death penalty against minority defendants than against white defendants.” Studies in other states have also shown defendants of color are more likely to be sentenced to death.

More than 150 death row inmates across the nation have also been released from prison after new evidence showed their innocence since 1973, according to the Death Penalty Information Center. None of those were in Colorado, however, though there are people in the state’s history who have been removed from death row upon appeal.

“I think the death penalty is an absolutely permanent determination,” said Rep. Adrienne Benavidez, an Adams County Democrat who is also leading the repeal charge. “Judges and juries can make mistakes.”

She’s also bothered by the morality of the state putting someone to death.

“We’re one of the few more industrialized countries that have the death penalty, which I think is a statement in and of itself,” she said.  “To me, life imprisonment is sufficient punishment. I don’t believe in an eye for an eye because it’s never an eye for an eye.”

And then there is the cost. The Aurora theater shooting trial, alone, cost at least $3 million and likely more. According to various fiscal analyses, the estimated cost of the death penalty on Colorado taxpayers — for lawyers prosecuting and defending cases and litigating appeals — is $700,000 to $1 million per year.

A screenshot from the video recording of the Aurora theater shooting trial.

Proponents of repealing capital punishment in Colorado point to those numbers, which mount over years of appeals, as clear economic reasons against the practice.

“The death penalty is costly. It is applied unevenly and it is basically immoral,” said state Sen. Lois Court, a Denver Democrat who cast one of the votes preventing a repeal bill from passing in 2013. She said her decision then came after then-Gov. Hickenlooper indicated he would veto the measure, but that as public opinion has changed so have her beliefs.

She will be a “yes” vote for repealing the death penalty this year.

“Is it right for the state to do what we would be punishing the individual for having done? No,” she said. “To me that’s a very basic equation. It’s not the right thing to do.”

Republican Sen. Kevin Priola, of Henderson, says he will support the repeal for all of the reasons others oppose it. But he says primarily his opposition is faith-based. He is Catholic.

“I think there’s a lot of arguments to repeal it and there’s not many really good arguments, in my opinion, to keep it,” he said.

Colorado Attorney General Phil Weiser, a Democrat, and some of the state’s top prosecutors also support abolishing the death penalty. Among them are Denver District Attorney Beth McCann and Dougherty, the Boulder County district attorney.

Dougherty wants the death penalty repeal to go to a vote of the people and be placed into Colorado’s constitution. That would mean it couldn’t be undone by state lawmakers should political circumstances change at the Capitol.

“I’ve seen horrific things in my career,” Dougherty said, “but I’ve never been a supporter of the death penalty.”

And that belief has never really been in question, he says, even through witnessing carnage — in-person — like after the Sept. 11, 2001, attack on New York City. “I’ve certainly given it a lot of thought,” Dougherty said. “But I would not say I’ve wavered, no.”

MORE: Read more politics and government coverage from The Colorado Sun.

“It is truly saved for the worst of the worst kind of cases”

The 18th Judicial District is where all three men on Colorado’s death row were sentenced to die by lethal injection. It’s also where Holmes was prosecuted and a handful of other potential death penalty cases were heard in recent years.

Ask District Attorney George Brauchler, a Republican whose term has been dominated by his support for capital punishment, why he supports its use and he produces a list of reasons. Among them: It saves taxpayers money because it drives plea agreements in first-degree murder cases, helping victims avoid reliving their experiences during grueling trials.

18th Judicial District Attorney George Brauchler, a Republican. (Jesse Paul, The Colorado Sun)

“That’s real cost savings,” he said. “That’s real savings to victims.”

Brauchler is also chief among those who think the issue should be sent to the ballot for voters to decide. Anything less, he says, sends a message that Colorado lawmakers don’t trust the people to decide. After all, they’ve been given tough decisions before: marijuana, taxes, and oil and gas regulation

“Why can they be trusted with all of these issues, none of which are more complicated or more serious?” he said.

Brauchler predicted if the repeal passes in the legislature, a ballot initiative will be brought to reinstate it. That’s what happened in Nebraska, where the state legislature abolished capital punishment in 2015 but voters brought it back in a statewide vote the next year.

Recent polling on capital punishment in Colorado is sparse. But in 2015, a Quinnipiac University poll showed that 67 percent of the state’s voters thought the death penalty should continue to be law, while 26 percent said it should be abolished.

Colorado voters rejected a ballot measure to repeal the death penalty in 1966.

Jim Bullock, the district attorney for several counties in southeast Colorado, agrees that the people should make the determination. The Republican points out that capital punishment is used sparingly in the state because of the strict rules governing when it’s allowed.

In Colorado, the death penalty can only be sought in a first-degree murder case against someone who has killed in an “especially heinous, cruel, or depraved manner.” The penalty also is available in cases where the victim is a police officer or other first responder, a judge, an elected official or a witness to a crime. If a defendant kills a pregnant woman, multiple people at once, or more than one person in multiple criminal episodes they are also eligible for capital punishment.

“It is truly saved for the worst of the worst kind of cases,” Bullock said. “The morality issue — that’s for each and every individual to determine. You cannot legislate morality, it’s what the overall sense of justice is for all of the community and all of the citizens.”

Miguel Contreras Perez. (Provided by the Colorado Department of Corrections)

Bullock’s office is pursuing a death penalty case against Miguel Contreras-Perez, who is accused of killing Arkansas Valley Correctional Facility corrections officer Mary Ricard in 2012. At the time of the attack, Contreras-Perez was serving 35 years to life in prison for the kidnapping and rape of a teenage girl.

Cases like that one are why Sen. Bob Gardner, a Colorado Springs Republican, has voted again and again to keep the death penalty.

“I believe that the death penalty is appropriate for the most heinous sorts of crimes, and I believe it is a deterrent for certain types of crime when there is no other deterrent, in particular those who are already incarcerated for lengthy sentences really have no deterrent for committing a murder of a corrections officer,” he said.

Gardner says he has asked himself if a Colorado jury would ever sentence a defendant to death given the number of recent cases where they’ve refused to do so. But that’s not the point, he said, “the possibility of the death penalty is as important as the imposition of the death penalty.”

From left: Dexter Lewis and Glen Galloway. Both men faced death penalty trials, but juries in Denver and El Paso County, respectively rejected capital punishment. (Provided by the Colorado Department of Corrections)

“It was within the first month that I was in the General Assembly that I debated this issue,” said Gardner, who first became a state lawmaker in 2007 and is the top Republican on the Senate Judiciary committee. “It’s 2019 and this issue is still being debated. I think the debate is fair enough. We should always ask ourselves as a society: Does it continue to be right? Does it continue to be appropriate? For me, that answer will always be ‘yes.’”

Democratic Sen. Nancy Todd, of Aurora, is among those who have also been part of the debate at the Capitol for many years. She’s voted for and against bills to repeal the death penalty. She hasn’t made up her mind about this year’s version.

“As a Christian, it’s troubling to say that we will make that final call,” she said. “At the same time, I also live in Aurora and lived through the Chuck E. Cheese massacre and I do believe there are consequences for your actions. All of those different angles are the things that I take into consideration.”

The parents at the legislature

In January, Sen. Fields took to the podium on the Senate floor and began a speech that immediately captured the attention of everyone in the room.

“Today my heart is heavy,” she began. “On this day, Jan. 29, 1983, I gave birth to my only son. He turns 36 years old in heaven. I can tell you that living without him has been a very lonely journey. I can still remember what it was like to carry him for nine months. I can remember what it was like when I saw him and met him for the first time.”

Fields’ son, Javad, was 22 when he and his fiancée, Vivian Wolfe, were gunned down on June 20, 2005, in Aurora. Javad was assisting police as a witness in the murder of his best friend, who had been killed by Sir Mario Owens.

From left: Vivian Wolfe and Javad Marshall Fields. (Provided by Sen. Rhonda Fields)

Owens later opened fire on the couple, targeting Javad for his cooperation.

Since then, Fields has entered politics and risen to a top position in the Colorado Senate as Democrats’ assistant majority leader. She is against repealing the death penalty and said she plans to be vocal about her opposition.

“It’s going to be a difficult conversation, but it’s one that we have to have,” she said. “I think that’s how we get at good public policy, when we talk through it and we don’t push through it without having a full debate. I’m looking forward to having that debate and that discussion on the floor if it makes it that far. I’m not afraid of it. It’s not hurtful for me because it’s something that we have to talk about. For me to shy away from it or to shrink from it is just not something that I can do. I’m going to speaking out and address the issue as it’s confronted to me with.”

Fields, who is black, rejects arguments made against the death penalty on the basis of race and cost.

“What price do you put on justice?” she said. “What value do you want to put on my son’s life and his fiancée life? I don’t know if there is a price tag that you can put on justice. Justice is very expensive. I know how much we spend down here on the Department of Corrections and our judicial branch.”

She is joined in her opposition by Sullivan, a fellow Democrat who is in the House. His son, Alex, was murdered in the Aurora theater shooting. Sullivan spent roughly three months watching the death penalty prosecution of his son’s killer unfold in an Arapahoe County courtroom.

Sullivan says he understands the problem with the death penalty, but still feels that “as a society, we should be able to do that.” He says he would rather fix capital punishment in Colorado this year rather than do away with it.

Rep. Tom Sullivan, D-Centennial, speaks at a press conference announcing a “red flag” bill on Feb. 14, 2019 inside the state Capitol in Denver. (Eric Lubbers, The Colorado Sun)

“I’m not going to be counting votes against it. I’m not going to do that,” he said. “I will tell my story and leave it at that. But I have some very poignant stories to tell. I mean, it is very vivid in my memory — several instances during that trial that I will relay to the people that are sitting here that they have not heard from anyone else. And that they wouldn’t hear from anybody else.”

One conversation with prosecutors in particular stands out for Sullivan, the one when he had to say aloud that he wanted them to seek the death penalty for the gunman. He compared it to the questions flight attendants ask those who sit in an exit row on an airplane about being willing to assist in an emergency. Federal rules mandate that passengers have to verbally respond.

“The only thing even comparable, that maybe you can understand, is if you get in those three (exit) rows of seats in the middle of the airplane where you get the extra legroom and they come and ask you those questions,” Sullivan said. “When they look at you, you actually have to say to them that you understand the questions that they asked. This was exactly the same type of thing. You couldn’t nod your head, you couldn’t, you know, mumble or just give them a head shake. No, you actually had to say the words across from them. ‘Yes, I want that person put to death.’ ”

Staff writer John Ingold contributed to this report.

Updated on Monday, March 4, 2019, at 5:20 p.m.: This story has been updated to reflect Senate Bill 182’s introduction on Monday afternoon.

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