Littwin: The death penalty conversation in Colorado just grew a lot louder

It was a coincidence, but hardly a happy one, that a pair of prominent Coloradans made news this week concerning the death penalty. In an interview, John Hickenlooper said he was considering granting clemency to Chuck E. Cheese multiple murderer Nathan Dunlap. And a few days later in his first Supreme Court vote, Neil Gorsuch voted to send convicted Arkansas murderer Ledell Lee to death.

Politics, of course, played a key role in each case. Four years ago, Hickenlooper took a significant political risk in switching his views on capital punishment in order to grant a temporary reprieve to Dunlap. Predictably, the decision not to execute Dunlap became a central issue in Hickenlooper’s 2014 re-election campaign.

And now, even though Hickenlooper is term-limited, the issue is back. Republican DA George Brauchler, who hopes to replace him, has promised that if elected he’ll revoke Dunlap’s stay. And Hickenlooper, who was criticized by many for leaving the ultimate Dunlap question to a future governor, has said he’ll reconsider the decision. You don’t have to wonder this time what he’ll do.

“To me there is no question that Nathan Dunlap has severe mental disabilities and … when I looked at the case I couldn’t imagine putting him to death,” Hickenlooper told Colorado Politics. “We did a temporary reprieve because we wanted to be respectful of judicial process and all the people that worked on his case all the way through.”

It was a tough call then, but the call is a little easier now as the politics of capital punishment are changing. Or at least they were changing until Donald Trump’s election and his appointment to the court of a conservative like Gorsuch.

You may remember that in his confirmation hearing, Gorsuch made a great point of saying there were no Republican judges and no Democratic judges. But in that first vote, Gorsuch joined the four other Republican appointees against the four Democratic appointees in a 5-4 decision.

I’m not suggesting this was party politics. It simply reflects the court’s head count of five conservatives and four liberals and the fact that you should never take too seriously what you hear about judicial independence in confirmation hearings.

This vote was, of course, a matter of life and death. And as for the politics: If Mitch McConnell hadn’t blocked Obama Supreme Court nominee Merrick Garland or if Trump hadn’t gone on to beat Hillary Clinton, then Arkansas probably wouldn’t have held its first execution since 2005.

But, as we’re so often told, elections matter—or at least they do in those times when McConnell is not Senate Majority leader. And so Ledell Lee is now dead.

The Arkansas case set a particular challenge. The state had planned to execute eight men in an 11-day period, which was shocking considering that no one had been executed in Arkansas for 12 years. But there was apparently a need to rush. One of the drugs in the three-drug lethal-injection cocktail was about to reach, as Justice Steven Breyer so deftly put it, its “use by date.”

And because drug companies no longer want to be associated with capital punishment, not least because of the recent botched execution attempts involving midazolam, the expiring drug would be difficult to replace. And not just difficult. Some states had gone as far as to use a London middleman who shared an office with a driving school to score their drugs until the FDA intervened.

For Arkansas, it was kill now or kill much later or kill maybe never. Several of the executions have been stayed, and Arkansas may be running out of time. But there was time, at least, to execute Lee, who had argued that a DNA test would prove his innocence and that there were problems with ineffective, and possibly impaired, counsel.

The death penalty has many flaws, but its most indefensible is its random enforcement. The statistics are inarguable: A convicted killer’s chances of being sentenced to die depend largely on race, gender, geography, age and access to a good lawyer. And now you can add a drug’s expiration date.

From Breyer’s dissent: “The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state. It has nothing to do with the need for speedy punishment. Four have been on death row for over 20 years. All have been housed in solitary confinement for at least 10 years. Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire. In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random.”

In Colorado, randomness is the best argument against Nathan Dunlap’s execution. Brauchler was, of course, the DA in the James Holmes case, in which a death-qualified jury could not reach a decision to execute the mentally disturbed Aurora theater mass murderer. Weeks later, another death-qualified jury refused to execute Dexter Lewis, who was convicted of stabbing to death five people as they were held at gunpoint in a horribly botched robbery at Fero’s Bar and Grill in Denver. Why Dunlap and not Holmes or Lewis? It’s a question that doesn’t have an easy answer.

This is what Hickenlooper said of why he has changed his mind on the death penalty: “When I was elected I was pro-death penalty – an eye for an eye, a tooth for a tooth. I’ve come 180 degrees. It’s not cost effective, it doesn’t do any benefit, it really divides … there’s no deterrence, whether you have the death penalty or not, the same amount of crime, the same amount of heinous violent murders.

“(It’s) the ultimate moral question. My job is to call up some jailer down in Cañon City and tell him to kill somebody he doesn’t want to kill. That’s just morally a very difficult position.”

It’s a position that Hickenlooper couldn’t take, but one, from his seat as the new Supreme Court justice, that Gorsuch apparently could.

Photo by Allen Tian for The Colorado Independent


  1. Justice Gorsuch’s early position on the death penalty and other forms of death is interesting.

    His book makes it abundantly clear that he opposes the right for an individual to kill him or herself. Or to assist another to kill him or herself.

    Gorsuch apparently is clear it is wrong to abort a fetus and apparently believes governments should prevent such an act.

    Yet it apparently is fine for a state government to kill.

    Yep … the nominee of the “small government” party believes in the sanctity of life except when the state acts to kill.

  2. Clown car runs over discarded Easter eggs.

    “Hiding news that doesn’t fit an ideological or a partisan agenda is perhaps the worst form of media bias. And it’s one more reason the public holds the press is such low esteem.” – Investor’s Business Daily

    Mike Littwin on anger in politics:

    “Anger rarely wins in American politics.” – July, 2016

    “It was the anger, of course, that got (President) Trump elected.” – April, 2017


    For the better part of the last two years Mr. Littwin has commented on and criticized everything President Trump has said or done.


    But for some as yet unexplained reason Mr. Littwin has nothing to say about the April 6th Cruise missile strike President Trump ordered against Syria in response to Syrian President Bashar Assad’s use of banned chemical weapons against innocent Syrian men, women and children.


    Which is why what Mr. Littwin doesn’t write about is as important—-and in some instances more so—- than what he does. How can Mr. Littwin, who ostensibly seemed so concerned about the plight of refugee children,—-well, at least those on our southern border—-remain silent on President Trump’s order to strike Syria more than two weeks ago? And how can Mr. Littwin, who wrote an entire column on an eye-roll (you could look it up), suddenly become mute on a missile strike that even drew favorable reactions from some Democrats?

    But the absence of any mention of the 59 Cruise missiles President Trump launched against Syria would go a long way in explaining why Mr. Littwin was not a recipient of one of the six honors awarded Colorado Independent journalists in this year’s Top of the Rockies awards from the regional Society of Professional Journalists

    And it would explain why an intensive, thorough and exhaustive search of the 2017 Pulitzer prize winners failed to show Mike Littwin as a recipient.

    While Mr. Littwin ignored President Trump’s missile strike he somehow found the time to write about a semi-meaningless special election in Georgia and its effect on Rep. Mike Coffman next year: “In 2018, Coffman has to survive Donald Trump, which could be another thing altogether.”

    Here’s what the very same Mr. Littwin said about Rep. Coffman on December 30th , “How about Morgan Carroll getting clobbered by Mike Coffman two years after Coffman had clobbered Andrew Romanoff? (I have no idea why or how Coffman became invincible, but the question now is whether he’s ready to give that invincibility a try in the 2018 governor’s race.)”

    Now Mr. Littwin wants readers to believe that in less than four months Rep. Coffman has gone from invincible to vulnerable because of an obscure special election in Georgia.

    You can’t make this stuff up!

    And while Mr. Littwin has inflated beyond recognition the importance of the Georgia special election there are others who find the results far less noteworthy. This from Frank Rich in the New York Magazine:

    “This little race was fun while it lasted, and may have been the most successful jobs program (albeit for journalists) of the Trump presidency. But even if Ossoff had actually won it’s hard to see how this contest was a bellwether for 2018 or much else.”

    Or this from Politico:

    “As it became clear late Tuesday evening that Jon Ossoff would fall just short of the 50-percent mark in the first round of voting in a suburban Atlanta special election, Democrats back in Washington started leafing through their calendars and asking: When does the winning start?”

    Or this from TheWeek:

    “First, last night’s special election in Georgia, where Democrat Jon Ossoff came out of seemingly nowhere in recent weeks, and ended up capturing 48 percent of the vote in a splintered field. But because he failed to eclipse 50 percent, Ossoff now faces Republican Karen Handel in a June run-off. Despite his strong performance Tuesday, Ossoff is now all but assured to lose in a one-on-one race in this deep-red district. No one should read too much into this one idiosyncratic congressional election. It was not a referendum on Trump.”

    It would appear not only are Mr. Littwin and reality no longer on speaking terms they apparently no longer occupy the same planet.

    So when Mr. Littwin suggests that some insignificant special election in Georgia should worry Rep. Coffman keep in mind, Mr. Littwin is the same guy who last October said: “(Mr. Trump) won’t be president. He was sliding in the polls before the video, and the video now means that he has no way to climb back. Which independent voter, which suburban woman, which Main Street Republican on the fence is going to vote for Trump now?”

    And while Mr. Littwin ignores President Trump’s Syrian missile strike he did find time to, again, discuss the death penalty.

    Mr. Littwin is a long time opponent of the death penalty and since joining the Colorado Independent has written at least four columns reaffirming his opposition. So it was surprising that when Dylann Roof was sentenced to death for killing nine African-American churchgoers all Mr. Littwin had so say was this:

    “Meanwhile, Dylann Roof was sentenced to death for the massacre at the Emanuel AME church, a terrible reminder of both the limits of justice and the limits of progress and of the many speeches Obama has made following too many gun deaths.”

    Is that all Mr. Littwin has to say about Dylann Roof’s death sentence? No outrage? No reaffirmation of his opposition to capital punishment? No equating the death penalty to torture? It seems like such a milquetoast response when compared to this over-the-top reaction after Nathan Dunlap received a temporary death penalty reprieve in 2013 :

    “But the most compelling arguments against the death penalty would include nearly everything else, starting with the fact that it’s nearly impossible to administer the punishment equitably. Convicted murderers are sentenced to die disproportionately according to race, gender, geography, the ability to hire a good lawyer, how they scored on an IQ test.”

    But you won’t see Mr. Littwin using Dylann Roof’s death sentence to express his opposition to the death penalty despite having said, “I’m opposed to capital punishment in all cases.”.because for Mr. Littwin, the optics are so bad.

    Am I accusing Mr. Littwin of being a hypocrite? Well, let’s just say he’s—-what’s a nice way to say gutless—-timid.

    Very, very timid.

    November 08, 2016

    “’Cause I don’t have no use
    For what you loosely call the truth” – Tina Turner

    Greenlight a Vet
    Folds of Honor
    Special Operations Warriors Foundation

    Veterans Day – November 10, 2017

  3. Gorsuch is just another typical right wing hypocrite. I don’t know why anyone would be surprised. If I were a member of Ledell Lee’s family I would be camped outside of Mitch McConnell’s office everyday.

  4. As a libertarian-conservative who believes in the rule of law, I’m also cognizant that the law can, and sometimes is, applied arbitrarily.

    If OJ Simpson had been been a poor black man from Watts with a public defender instead of a multi million dollar “dream team” of defense attorneys, I believe the verdict in that case would have been different.

    And as a libertarian, I fear the power of a state that claims the authority to kill it’s own citizens.

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