Littwin: Whatever the state legislature decides, there is no death penalty in Colorado

The trial of Aurora theater shooter James Holmes in August 2015.

The big news from the state Capitol has been not only that it’s a new day, with Democrats in charge everywhere, but with the pace of change at which Democrats are moving — and the desperate attempts by Republicans to slow them down.

One very large exception, though, has been in the state Senate, where, not long ago, it looked as if the end of the death penalty in Colorado was assured. It was sure to pass the House. Jared Polis said he would sign the bill. And now?

Well, if there is another such failure — and, remember, we’ve seen this movie before — it would, of course, be disappointing to those who oppose the death penalty. But it would not be a disaster. Because the truth is that, whatever the legislature decides, capital punishment no longer exists in any meaningful way in Colorado.

Whether or not the bill passes, the death penalty is done here. Someday, a law will make it official. Maybe this year. Maybe the next.  But when a state has executed only one person since 1967, that means the single execution was basically a random event — the kind that Supreme Court Justice Steve Breyer once rightly described as “the antithesis of justice.” 

And if you need proof of that — or the fact that we’ve basically moved on from what most of our peer countries now accept as barbaric — all you need do is look back to a few weeks in 2015 when the whole concept of the death penalty fell apart in Colorado.

In the course of that time, two particularly heinous crimes were adjudicated. In neither case was there any doubt about the guilt of the murderers. In neither case was there any question about the brutality and ugliness of the crimes and the shock to the community. In fact, if you were asked to research arguments to justify the death penalty in Colorado, these two cases would probably be found near the top of anyone’s list.

And in both cases, a death-qualified jury — meaning jurors who swear under oath they don’t object to the death penalty in either principle or practice — refused to sentence to death the men they had just found guilty.

You know the stories, especially the one of James Holmes, the Aurora theater killer, who was clearly mentally ill, even if not legally insane. He gunned down 12 people in a massacre that somehow bookends Columbine and leaves Colorado as a state forever marked by this era of mass murder. 

Our history of mass murders contributed to making Colorado an outlier among Western states in passing modest — if highly controversial — forms of gun control and now, it seems, a red-flag bill that would temporarily remove guns from those found by a judge to be a danger to themselves or others. But that history did not convince two juries to respond by unanimously imposing the death penalty.

According to one person on the Aurora jury, one of the jurors was firmly opposed to the state killing of Holmes and two were wavering. And when Holmes was taken to prison, the question would be asked and never satisfactorily answered: If you can’t impose the death penalty on a mass murderer, who does qualify?

Three weeks later, we actually did get an answer of a kind when Dexter Lewis was convicted of stabbing to death five people in a robbery — netting all of $170 — that had gone terribly wrong at what was then Fero’s Bar and Grill in Denver. This was a case of murdering potential witnesses, in which Lewis apparently went down a line, stabbing the owner and four customers who were being held at gunpoint by Lewis’s accomplices. Then they burned down the place to cover up the deaths.

The jury didn’t go for death, though, after hearing testimony of the years of physical abuse that Lewis had suffered during his childhood. And so, as I wrote back then, the jury was charged with measuring the crimes Lewis had committed against those committed against him as a child. What a strange system of justice at which we’ve arrived. The jury settled for life without parole. 

Given that the 40-some percent of people who oppose capital punishment are not eligible to serve on these juries, it must seem strange that the 12 serving couldn’t condemn the killers to death — unless you were being asked to make that decision yourself.

Lawmakers are taking that issue upon themselves again. Two who support the death penalty are Sen. Rhonda Fields and Rep. Tom Sullivan, both of whom lost children to murder and whose careers in politics can be traced to that awful moment in their lives. Both strongly support the death penalty, and no one should or could blame them.

But ask John Hickenlooper how difficult the issue is. Once a death penalty supporter, Hickenlooper controversially granted a “temporary reprieve” rather than executing Nathan Dunlap, the notorious Chuck E. Cheese killer. When Hickenlooper was faced with the actual fact of the death penalty, he couldn’t bring himself to do it. He would say it was not a matter of mercy but a matter of the many problems with the death penalty itself. And now, as he runs for president, Hickenlooper says he opposes the ultimate punishment.

There are a wide range of reasons to oppose capital punishment. Go to the web site of the Death Penalty Information Center for the numbers that help explain the opposition. Start with the issue of race (blacks who kill whites are many times more likely to get the death penalty than whites who kill blacks), gender, class, geography (since 1976, 1,220 people have been executed in the South as opposed to only four in the Northeast), the oft-proven lack of deterrence value, the fact that more than 150 prisoners have been released from death row since 1973 upon new evidence, the spate of botched executions, the reluctance nationally to impose the penalty (295 sentenced to death in 1998, 42 last year).

For me, the most compelling argument has always been that state-approved killing of murderers argues that killing is a reasonable solution — that ultimate violence is the proper response to ultimate violence. The polls show that a majority of Coloradans support the death penalty. But the record shows that when it comes to applying the death penalty, Colorado passes. 

In the end, we have to ask ourselves what point there is to a law that we have decided to basically reject. In the end, there can be only one answer.


  1. If we can awake the Colorado Conservatives from their national party’s obsessive fever dreams about gay people, abortions, refugees and executioners, we might actually get some stuff done this legislative session.

  2. contd

    Innocents at Risk;

    You didn’t fact check/vet

    The current claim by death penalty opponents (DPO) is that 164 (1.8%) (13) were “exonerated”, wherein DPO thought it a good idea to redefine both “innocent” and “exonerated”, as redefining lie as truth, and then stuck a bunch of cases into those “revised” definitions (13,14,15). This has been known for about 20 years.

    NY Times reported “innocent” claims to be 71% false (16). Today, that being 116 false claims of the 164 claimed “exonerated”, or 48 (0.6%) proven innocent, all of whom have been released (16). The false claims of innocence range from 71-83% (17) .

    We might have proof that innocents were executed as recently as 1915 – two brothers from South Carolina. Tragic.

    The major innocents problem, nationally, as within California, is this:

    Since 1973:

    21,000 innocents have been murdered by those KNOWN murderers that we have allowed to murder, again – recidivist murderers

    440,000 innocents have been murdered by those KNOWN criminals that we have allowed to harm, again – recidivist criminals

    Living murderers harm and murder, again. Executed ones do not.

    Where are the innocents at risk?

    13) The Innocence List, DPIC, as of November, 2018,

    14) ibid, The modern era of death penalty cases did not begin until after Gregg v Georgia, 1976, however, based upon the numbers, the end of 1978, is when we finally resolved all the Gregg issues, in the modern era, which means, we should omit 34 of those cases (1963-1978), bringing the number down to 130, minus the 71%, or 38 innocents – see

    TABLE 16 Prisoners sentenced to death and the outcome of the sentence, by year of sentencing, 1973–2013, Capital Punishment, 2013, Statistical Tables, Bureau of Justice Statistics, December 2014,

    15) see sections 3 and 4
    The Innocent Frauds: Standard Anti Death Penalty Strategy…/the-innocent-frauds…


    The “Innocent”, the “Exonerated” and Death Row:
    An Open Fraud in the Death Penalty Debate: How Death Penalty Opponents Lie…/the-innocent-exonerated…

    16) Liptak: “To be sure, 30 or 40 categorically innocent people have been released from death row,” (NY Times, 1/23/05), At the time of the article, there were 119 listed on the Innocence List (fn 13) 35 innocent, as per average by Liptak, means a 71% error rate with the 119. ‘The Death of Innocents’: A Reasonable Doubt, by Adam Liptak, NY Times, JAN. 23, 2005

    17) ibid, fn 15

  3. How bad is Colorado?

    Since 1976:

    With 113 executions (72%) and other removals (23.4%), Virginia has cleared 95.4% of their death row cases

    With 1 execution (4.5%) and other removals (82%), Colorado has cleared 86.5% of their death row, in very different fashions.

    Gary Lee Davis kidnapped his neighbor, Virginia May, from in front of her children, drove her to a deserted field, raped May and then shot her 14 times with a rifle.

    Davis was sentenced to death exactly one year after the murder, on July 21, 1987. He was executed 10 years later.


    “A Colorado study in 2013 found that death penalty cases took more than five years on average to complete, compared to 1 1/2 years for cases involving life without parole.” That is 5 years for pre trial and trial, only, not appeals.

    Nathan Dunlop was sentenced to death in 1996. His execution date was set for August 2013.

    Hickenlooper granted him an indefinite stay, based upon nonsense.

    For some reason, into 2019, Dunlop has not been executed – 22 years after his just sentence and 3 months after Hickenlooper left office.

    Dunlop murdered 4 people in 1993 and wounded another.


    Virginia has executed 113 murderers, within 7 years of FULL appeals, on average.

    Sylvia Crowell, 19, was cleaning the salad bar when Dunlop shot her at close range in the right ear. Sylvia was mortally wounded.

    Ben Grant, 17, was fatally shot near the left eye.

    Colleen O’Connor, 17, pleaded for her life and sunk to her knees, but Dunlap fatally shot her once through the top of her head.

    Marge Kohlberg, 50, the store manager, was shot in the ear. Dunlap fired a second fatal shot through Kohlberg’s other ear after he noticed she was still moving.

    Bobby Stephens, 20, the lone survivor of the shooting, was shot in the jaw, played dead and survived.Hickenlooper had no respect for the innocent murdered, their survivors nor the prosecutors.

    Hickenlooper’s injustice is horrendous.

  4. Even a relative of one of Nathan Dunlap’s victims said she didn’t want to see him executed when Hickenlooper stayed the event.. As the families of murder victims usually discover, the execution of the murderer (s)–which today is fraught with complications like obtaining appropriate lethal injection drugs–does not bring the relief and satisfaction they thought it would. An execution, which, in effect, brutalizes the law enforcement officer who has the job of committing it, does not restore the victim to life or to his/her family. Their feelings of satisfaction are reportedly brief. As for Dunlap, he, and his mother and sister, were all seriously bi-polar as he was when he killed the people in Chuck E. Cheese. Since he’s been on appropriate medications he is apparently a different man.(If someone had red-flagged his gun he might never have killed those people) Also, even in Colorado, back in the ‘thirties, there was an execution of an innocent man, who was mentally deficient, and another wrongly accused person was incarcerated for 17 years. Mistakes get made, and they, too, represent murders of innocent victims.

  5. Let us all insure no consequences for personal action. Keep believing that an evil person can be “rehabilitated”. That makes perfect, logical, common sense. WAKE UP! Stop smoking the green! Can’t we all look at each situation from an objective point of view and trust our elected officials to take a common sense approach to each occurrence…. Oh, wait, we here in Colorado have been over run with the California concept of UTOPIA…. Socialism does not work!. It has been a proven failure! The lazy people are not willing to pull their weight to make it come true!

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