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