Lawmaker: Prosecutors need two chances to win a death penalty verdict

Republican Rep. Kim Ransom is working on new legislation to give prosecutors a second chance, in the case of a hung jury, to win a death penalty verdict. Photo credit: Matt Freedman, Creative Commons, Flickr.


The Aurora theater shooting. A stabbing in Fero’s Bar. An attack on Planned Parenthood. In Colorado, as two capital cases end, there could soon be another in a state far too familiar with the trials and procedures involved in putting people to death.

Now, according to one lawmaker, the upcoming legislative session that begins next month could also see at least one measure dealing with how the state carries out capital punishment.

Douglas County Republican Rep. Kim Ransom is working on legislation that would allow prosecutors another shot with a jury if they can’t get a unanimous death penalty verdict the first time around.

“I am looking at making the change and running something this session to have a conversation about sentencing in death penalty cases,” she told The Colorado Independent. “We are looking at the potential of doing a referred measure, but we are also looking at the possibility of doing it statutorily.”

In Colorado, if just one juror holds out on the state’s willingness to execute a defendant in a capital case, execution is off the table. That happened earlier this year in the trial of the Aurora theater shooter. And a jury in a different death penalty case this year involving a man who stabbed five people to death in Fero’s Bar bar in 2012 also chose not to seek death.

Ransom stressed that any potential change she’s working on to address how Colorado carries out capital punishment is not in response to any particular case, nor is it aimed at any potential future cases. She said an early draft of the measure had a provision stating the law would only affect crimes committed after 2016.

“What this would do is add some flexibility to the district attorney and prosecutors to re-try the case if there’s a hung jury in the penalty phase,” she said. Prosecutors would only get one more shot; they couldn’t just keep re-trying a case until they got a unanimous verdict. The law, she said, is similar to current legislation in Arizona.

Any potential measure this year in Colorado is in its nascent stage.

“That is all still being discussed,” Ransom said. “Those are still items that are up in the air.”

Contacted by The Independent, Sam Kamin, a professor of constitutional law at the University of Denver, said while he couldn’t think of any constitutional hurdles for such a law off the top of his head, there’s always a chance such changes can be invalidated.

“We’ve had sort of a strange history with the legislature tinkering often in this direction to make a death verdict more likely,” he said. For instance, in 1995 the General Assembly shifted Colorado to a system that allowed a three-judge panel that could sentence defendants to death. But that was deemed unconstitutional less than a decade later, and now only juries can deliver execution verdicts.

“The death penalty is expensive and the procedures are long, and often you have legislators who try to bust through that log jam and try to make it easier, and that often leads to constitutional concerns,” Kamin said.