Littwin: There are too few arguments left in favor of death penalty

The death-penalty conversation we have been promised in Colorado may be over before it has had a chance to begin.

What else is there to think after a jury rejects the death penalty for convicted mass murderer Dexter Lewis only weeks after another death-qualified jury rejected the penalty for convicted mass murderer James Holmes?

If Lewis and Holmes don’t get death, who does? It’s with that question — and with the near-certain answer — that the conversation almost certainly has to end.

A jury decided that Holmes was too mentally ill for the state to execute. And a separate jury found that Lewis’s upbringing was so violent that the state couldn’t reasonably execute him for his own violent crimes.

Both juries had voted unanimously to convict. But neither jury could make the necessary unanimous decision to execute.

If you were surprised in either case — and many were stunned by the Holmes decision — you may not have weighed just how hard it is for a juror, a person not unlike you or me, to have to make a life-or-death judgment. Now think how much harder it is to get 12 people to agree.

What is increasingly clear is how few arguments are left to make in favor of the death penalty (and I say this, admittedly, as a long-time opponent). Colorado has executed one person in the past 48 years. It currently has three people on death row. There’s no deterrence argument left, if there ever was one. For that matter, it’s hard to see where there’s a justice argument left.

It’s a punishment that is used so rarely — with decades-long waits on death row for the few assigned there — that any execution now seems to be little more than random, an accident of time or place. And a random punishment, as Supreme Court Justice Steve Breyer recently wrote, can’t, by definition, be just. He called it “the antithesis of justice.”

We’re told that the ultimate penalty is reserved in Colorado for the ultimate crimes. Obviously, these cases qualify. There won’t be more horrifying crimes. The Aurora theater shootings unsettled not just our community, but an entire nation. Lewis, meanwhile, was convicted of stabbing to death five people in a robbery gone terribly wrong at Fero’s Bar and Grill in Denver. According to testimony from others in the gang, Lewis went down the line, stabbing the owner and four customers as they were held at gunpoint because he was afraid they would be witnesses against him. And then the robbery crew burned the place down to cover up their crime — one, we’re told, that netted $170.

The bar wasn’t far from my house. I must have passed it hundreds of times, and each time I looked at its boarded-up door and windows, I couldn’t help but imagine the horror of those deaths that took place inside.

But the jury was asked to weigh mitigating circumstances against the weight of the crimes. And so in the second phase of the sentencing procedure, the jurors were told by Lewis’ mother of how she beat him as a child, as a toddler, as an infant. Of how he was hit with a five-pound barbell.

It’s a strange thing to be asked to do — to measure the crimes Lewis committed against the crimes committed against him. At what point should abuse as a child translate into life in prison instead of the death penalty? What juror should be forced to make that decision? Which of us is even remotely qualified?

John Hickenlooper made that decision himself in the case of Nathan Dunlap, granting him a “temporary reprieve” rather than letting an execution go forward. He didn’t say that Dunlap deserved any form of mercy. He wouldn’t even bring himself to use Dunlap’s name. Hickenlooper said his problem was with the system of capital punishment and whether it delivers the justice that it promises. He said you can’t have an imperfect system and also have justice.

The imperfections are there for all to see, in matters of race, gender and class. It’s no wonder that only seven states executed anyone last year. The botched execution in Oklahoma of Clayton Lockett led the Nebraska legislature, of all places, to end the death penalty there, even overriding a governor’s veto to make it happen.

The arguments in Nebraska were familiar. The long, expensive appeals process. The DNA tests freeing those wrongly convicted decades ago. The stories of pharmaceutical companies getting out of the death business — leaving some states forced to buy the lethal-injection cocktail from a London middleman who shared space with a driving school.

We don’t know what arguments were made in those two Colorado jury rooms. We do know, though, where the arguments led. And we can now guess, after the two verdicts in two different jurisdictions in two very different cases, how the argument will end.


Photo by Andreia Bohner, Creative Commons, via Flickr


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