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Colorado’s death penalty law is complex, little-used

Rohn Robbins
Vail, CO, Colorado

Two recent cases before the United States Supreme Court raise the 8th Amendment question of what amounts to cruel and unusual punishment, particularly in the context of the death penalty. Is it cruel and unusual punishment to impose the death penalty and, if not, under what circumstances may it be imposed?

For those of you whose civics books have gathered dust, the 8th Amendment provides that “Excessive bail shall not be required, nor excessive force imposed, nor cruel and unusual punishment inflicted.” That’s not the 8th Amendment in a nutshell; that’s the 8th Amendment in its entirety. Count ’em up, 16 words. I doubt it would be an exaggeration to hold that those 16 words have spawned several million words of commentary and interpretation. What does “cruel and unusual punishment” mean? What is it intended to mean?

Forty of the 50 states permit capital punishment. Death by lethal injection is the preferred method of execution in 39 of the 40 states. The federal government may also impose the death penalty for certain federal crimes. You need think no farther than Timothy McVey, the Oklahoma City bomber who was put to death in June, 2001.

Generally, but not in all circumstances, capital punishment is reserved as a punishment for murder.

Of the two recent cases, one involves the means of capital punishment, the other its breadth. The first case, from Kentucky, asked the court to determine whether it is cruel and unusual punishment to execute by lethal injection? The answer was no.

“Simply because an execution method may result in pain,” Chief Justice Roberts noted, writing for the 7-2 majority, “as an accident or an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual.”

The second case, from Louisiana, questions the breadth of capital punishment, asking, may the death penalty be imposed for a crime other than murder? In the specific case, the defendant, convicted of raping his 8-year-old step-daughter, is challenging the Louisiana statute which allows the death sentence for the rape of a child. At the time I pen this column, the decision of the Court is pending.

Colorado is among the states that have a death penalty. The only approved method of execution in the state is lethal injection and the penalty may only be imposed for the crime of murder. However, only one person has been executed in Colorado in the last 40 years and there is only one person ” Nathan Dunlap ” on Colorado’s death row. Dunlap, you may recall, was the gunman in a multiple murder at a Chuck E. Cheese restaurant in Aurora in 1993.

Colorado’s death penalty originates in Article II of the Colorado Constitution which is an exact restatement of the 8th Amendment to the United States Constitutional provision, prohibiting “cruel and unusual punishment.”

When a defendant is convicted of a class 1 felony, the trial judge must conduct a separate sentencing hearing before the trial jury to determine whether the defendant should be sentenced to death or life imprisonment. A defendant who is determined to be mentally retarded as provided by statute is not eligible for a sentence of death and must be sentenced to life imprisonment. Similarly, the execution of individuals under the age of 18 at the time of their crime is prohibited by the Eighth and Fourteenth Amendments to the United States Constitution.

Statutes set forth the relevant factors the jury must consider and the procedures which must be followed at the sentencing hearing. If the jury finds that no aggravating factors exist or cannot unanimously agree on a sentence, then it must sentence the defendant to life imprisonment.

Any time a death sentence is imposed, the trial court must automatically enter a stay of execution of the sentence pending review by the Colorado Supreme Court. If any death sentence is held invalid or unconstitutional, the defendant must, by law, be re-sentenced by the trial court to life imprisonment.

While on the books in Colorado, the death penalty is only rarely invoked and, even less commonly, carried out. While a majority of Americans continue to support the death penalty, it continues to be whittled at, particularly in light of the many recent DNA exoneration cases.

As crafted by the founders, the constitution lives and breathes and, as with all living things, there are pangs of growth and contraction. It will be interesting, to say the least, where the Roberts Court, and our own state courts, next steer the vessel of debate.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.”


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