The Colorado General Assembly on Wednesday sent a bill to Gov. Jared Polis’ desk eliminating the state’s death penalty, forcing him to decide what comes next for the three men who are on death row and make the most consequential choice he’s faced since taking office last year.
Polis has said he will sign the bill, but refused to answer questions about how he will handle the men waiting in a Cañon City prison to die by lethal injection.
The legislation doesn’t affect their cases, but will raise questions about whether Colorado should follow through with their punishments. Polis could choose not to intervene, or he could alter their sentences and keep them imprisoned for the rest of their lives.
“All clemency requests are obviously a very weighty decision,” Polis, a Democrat, told The Colorado Sun on Wednesday in a brief interview. “We’ll judge them on the individual merits.”
Last year, however, Polis suggested in an interview with Colorado Public Radio, that he would commute the sentences of Nathan Dunlap, Robert Ray and Sir Mario Owens if a bill eliminating Colorado’s death penalty were to land on his desk.
“I would certainly take that as a strong indication that those who are currently on death row should have their sentences commuted to life in prison,” Polis told CPR.
The governor’s office said it currently has received no clemency requests involving the death penalty. “None of them are ripe for our review,” Polis said.
Conor Cahill, Polis’ spokesman, said the legislature’s repeal of the death penalty would be among the factors the governor would consider in those cases.
Senate Bill 100, eliminating Colorado’s death penalty, was approved by the Colorado House on a 38-27 vote Wednesday. That came after the measure received preliminary approval following roughly 11 hours of debate that began Monday afternoon and stretched well into Tuesday morning.
Republicans in the chamber were united against the bill and joined by Democratic Reps. Kyle Mullica of Northglenn, Brianna Titone of Arvada, and Tom Sullivan of Centennial, whose son, Alex, was murdered in the 2012 Aurora theater shooting.
Sullivan made a heartfelt plea to his colleagues not to do away with Colorado’s death penalty.
Prosecutors sought capital punishment for the gunman in the theater shooting, but an Arapahoe County jury declined to impose a death sentence.
“I’m under no illusion that anything I say to you today will make any difference on the votes that you’re going to take when we’re all finished here,” Sullivan said in a speech overnight Monday that lasted more than an hour and included crime scene photos from the theater massacre. “I can’t imagine I have ever embarked on a more hopeless journey before in my life.”
Rep. Dave Williams, R-Colorado Springs, warned members of the House that their votes could affect the status of the three people in Colorado who have been sentenced to death.
“The governor has signaled to us that he is more than likely to commute the sentences of the current people on death row,” he said. “Your votes today could mean that outcome just because of what the governor said. Keep that in mind.”
Republicans at the Capitol have argued that capital punishment deters crime and that, at the very least, Colorado voters should decide whether or not to eliminate the death penalty. The handful of Democrats who joined them echoed that viewpoint.
Democrats, and the few Republicans in the Senate who joined them, said it’s a morally repugnant and cruel punishment that’s used arbitrarily.
Who are the men on death row?
The three men on Colorado’s death row — Dunlap, Ray and Owens — are being held at the Colorado State Penitentiary, a maximum-security prison in Cañon City.
Dunlap, who murdered four people in 1993 at an Aurora Chuck E. Cheese restaurant where he worked, has been awaiting his punishment the longest. Appeals in his case were resolved in 2013 and he was slated to die by lethal injection before former Gov. John Hickenlooper granted him an indefinite reprieve on May 22, 2013.
That reprieve, which frustrated the families of his victims and prosecutors, has been continued by Polis. His victims were teenagers Sylvia Crowell, Ben Grant and Colleen O’Connor and the restaurant’s manager, 50-year-old Margaret Kohlberg. A fifth victim, Bobby Stephens, survived.
The cases of Ray and Owens are still going through the appellate process. They were sentenced to die for their roles in killing Javad Marshall Fields and his fiancée, Vivian Wolfe, in 2005.
Fields was a witness to another fatal shooting and was targeted because he was set to testify in that case.
Fields’ mother, Rhonda Fields, is a current Democratic state senator from Aurora. She was one of only two Democrats in the Colorado Senate who voted against Senate Bill 100 when it passed through that chamber.
“We’re saying that you if you kill one person, two persons, three people — it could be another Sandy Hook, it could be another club shooting, a concert shooting, a theater shooting, whatever it is — you can shoot as many people as you can, everybody gets the same penalty, ” she said during hours of emotional Senate debate. “And the penalty is life in (prison) without the possibility of parole.”
During the final debate on Wednesday, at Republicans pointed to the cases of Dunlap, Ray and Owens as clear-cut cases of capital punishment being used appropriately and proof that Colorado’s death penalty system functions as it should.
Rep. Mark Baisley, a Roxborough Park Republican, said Wednesday the three are “unquestionably deserving of the ultimate punishment.”
Rep. Matt Gray, a Broomfield Democrat, read their victims’ names before the final vote was taken in the Colorado House.
Pending capital cases can continue
Prosecutors in Arapahoe, Denver and El Paso counties 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.
The last person put to death by the state was Gary Lee Davis, who was executed in 1997 for kidnapping, raping and murdering a woman in Adams County.
There are multiple pending death penalty cases and potential death penalty cases in Colorado, including against admitted Planned Parenthood shooter Robert Lewis Dear Jr. and Dreion Dearing, who is accused of fatally shooting Adams County Sheriff’s Deputy Heath Gumm.
Those cases can still continue. Senate Bill 100 makes defendants ineligible for capital punishment if they are charged on or after July 1, 2020.
It’s unclear if Colorado could even carry out a death sentence. Colorado law mandates which drugs must be used to carry out lethal injection, but they are no longer available on the open market for capital punishment purposes. That means the Colorado Department of Corrections would have to find an alternative.
Prison officials say they believe they could find drugs to make an execution happen, though it might take some time.
Colorado would become the 22nd state to abolish the death penalty if Polis signs Senate Bill 100. Republicans have hinted that they may seek to put a question on the ballot reinstating the death penalty if it is repealed.
Williams, the Republican representative from Colorado Springs, said, at the very least, he will being legislation in 2021 to reinstate the death penalty.
The Colorado legislature has debated whether to eliminate the death penalty no fewer than six times since 2000.
Colorado Sun staff writer John Frank contributed to this report.