Death penalty repeal measure now in limbo

The Colorado Statesman

A House committee on Wednesday delayed action on a proposal to ask Colorado voters whether to repeal the state’s death penalty. The move comes on the heels of nine hours of emotional testimony heard by another House committee the night before on a rival measure that would abolish the death penalty outright.

State Rep. Rhonda Fields, D-Aurora, asked the House Local Government Committee to lay over consideration of House Bill 1270, which would send the death penalty question to the 2014 ballot, pending final action by the House Judiciary Committee on House Bill 1264, sponsored by state Reps. Claire Levy, D-Boulder, and Jovan Melton, D-Aurora, which would end the death penalty in Colorado for crimes committed after July 1. That bill was also held by the committee for final action, which hadn’t been scheduled at press time.

Fields is the only Democrat in the legislature who has stated that she’s opposed to a death penalty repeal, and for her, it’s personal. She entered public life after her son Javad Marshall-Fields was gunned down ahead of testifying in a murder case in Aurora. Two of Colorado’s three death row inmates, Robert Ray and Sir Mario Owens, were convicted of killing Marshall-Fields and his fiancée, Vivian Wolfe.

“If we pass a bill that says (the death penalty) is a failed public policy, then that gives enough ammunition for clemency, maybe for them not moving forward on the highest sanction that was rendered in my son’s case,” Fields said on Wednesday, urging lawmakers to reject the repeal bill and instead let voters decide the matter. She added that polling shows high levels of support for the death penalty in Colorado and nationwide.

Democratic Gov. John Hickenlooper hasn’t said publicly whether he will sign either bill, though a House Democrat confirmed that the governor told the caucus earlier this week that he might veto the Levy/Melton bill if it makes it to his desk, as The Denver Post first reported on Wednesday.

The repeal bill has a Republican co-sponsor, state Rep. Kevin Priola, R-Henderson. “On a personal level, as a Catholic, the church is clear on the issues of life, the openness to redemption and repeal,” said Priola in a statement. “The death penalty has proven to be a legally arbitrary, expensive and painful process that drags families through decades of proceedings while giving notoriety to criminals.”

A 2009 attempt by legislators to repeal Colorado’s death penalty — it would have directed the cost savings to solve cold cases — failed by a single vote in the Democratic-controlled Senate after passing by a one-vote majority in the House, which was also controlled by Democrats. There has only been one execution in the state since 1967, following a U.S. Supreme Court ruling that the penalty was unconstitutional in 1972, that decision’s subsequent reversal, and the penalty’s reinstatement in Colorado in 1984.

On Monday, Fields introduced her bill just days after sponsors unveiled the death penalty repeal and quickly scheduled a hearing on it. By delaying action on the referendum, she doesn’t risk sending the question to voters — where the result would be uncertain — unless the competing bill moves forward.

Her daughter Maisha Fields-Pollard pleaded with lawmakers to leave capital punishment on the books.

“Today I sit before you asking you to not put the justice of my brother at risk,” she said on Tuesday. “The death penalty is not a failed attempt — it rendered justice.”

The next day Fields-Pollard asked the second committee to let voters weigh in.

“I just don’t think that my mother should have to carry the weight of every victim, of every mother, to say that ‘I believe in the death penalty,’” she said, adding that others affected by crimes should also have a say.

A cavalcade of equally impassioned witnesses testified in favor of repeal on Tuesday, including victims’ family members, former prosecutors and corrections officers and former inmates who said they narrowly escaped wrongful execution.

“Remember, you can release an innocent man from prison, but you cannot release him from the grave,” said Randy Steidl, who spent 12 years on death row in Illinois before a judge threw out his conviction.

Bob Autobee carried the ashes of his son Eric, a state corrections officer who was murdered by an inmate in 2002, and asked lawmakers to bring an end to “Colorado’s broken death penalty system.”

He said he has come to oppose capital punishment after the decade he and his wife have spent enmeshed in his son’s case and would rather see resources spent helping victims.

“Justice should be swift,” Autobee said. “This just isn’t possible with the death penalty.”

Opponents of the repeal measure argued that Colorado doesn’t apply the death penalty excessively or indiscriminately, unlike other states that count hundreds of inmates on their death row.

Calling the punishment “society’s self defense,” Deputy Attorney General Matthew Durkin, testifying on behalf of Attorney General John Suthers, said the state’s death penalty policies stand up to scrutiny.

“It’s not done glibly, and it’s not done lightly. Rather, what you’ve seen is that it’s done with significant care, significant investigation, and the utmost concern for the victims and the process,” he said.

Denver District Attorney Mitch Morrissey testified on Tuesday against the Levy/Melton bill and again on Wednesday in support of the Fields bill. He noted that a group has told him it intends to launch a campaign to reinstate the death penalty via its own ballot initiative if the repeal bill passes.

“It’s tough for me to support this bill, because I believe in the death penalty, but I also believe the people of the state of Colorado should make this decision,” he said on Wednesday, sitting next to Fields.

Introducing HB 1264 the day before, Levy called the death penalty “inconsistent with evolving standards of decency that mark the progress of a maturing society,” but said she wanted it repealed for more practical reasons.

“The risk of executing an innocent person, the arbitrariness of the death penalty in Colorado and the amount of power that is vested in one elected official, the cost to the system relative to the benefit that is achieved and relative to alternative sanctions, which are equally effective at protecting the public, and the toll on victims’ families and those who are required to carry out the death sentence,” she said.

Levy reviewed a host of successful constitutional challenges to death penalty practices, from racial bias in jury selection to lengthy delays to the formerly standard practice of executing mentally handicapped criminals.

“What will be the next issue, and will Colorado have executed somebody the Supreme Court says should not have been executed?” she asked.

Melton charged that the death penalty isn’t applied uniformly, particularly because of the wildly disproportionate number of black men sentenced to death in the country and in Colorado. Noting that all three of the state’s death row inmates are African-American men of roughly the same age, who committed their crimes in Melton’s central Aurora district, he said, “I fail to believe the similarities are just by chance or coincidence.”

Convicted killer Nathan Dunlap, who gunned down four victims at an Aurora Chuck E. Cheese’s restaurant 20 years ago, has exhausted his appeals and could face lethal injection within months. If his death sentence goes forward, he would be the first prisoner executed in Colorado since 1997.

Like those of the convicted killers of Fields’ son, Dunlap’s sentence would stand under the Levy/Melton bill. So would the possibility that accused theater shooter James Holmes, accused of killing 12 and injuring scores more last summer at an Aurora showing of the new Batman movie, could still face the death penalty. (Prosecutors have said they’ll announce their decision in that case by April 1.)

But state Rep. Bob Gardner, who sits on both the Judiciary and Local Government committees, called it “disingenuous” for the repeal bill’s sponsors to think the legislation wouldn’t influence existing or pending death sentences.

The bill’s legislative declaration calls Colorado’s death penalty “a failed public policy,” says it has been “unfairly applied,” and lumps the state with “Iran, China, and Saudi Arabia” if it retains the punishment, which infuriates Gardner.

“It’s inflammatory, in my view — it’s unnecessary, it’s damning of dedicated public servants, it’s conclusory. Even if you believe the death penalty is appropriate for repeal,” Gardner told The Colorado Statesman, “that language could be invoked by inmates on death row that somehow the legislature made a declaration that determined their sentencing was unconstitutional.”

Gardner is unequivocal in his support for the state’s death penalty statute, calling it “appropriate for the most heinous of crimes.”

“It is a specific deterrent for those who would contemplate the murder of corrections officers, fellow inmates, law enforcement officers and witnesses, and there are instances of purely evil people in the world,” he said. “It is not something to be used lightly and has been pursued with the greatest of care and gravity in Colorado, and only when (prosecutors) believe their community standards call for nothing less than the death penalty.”

He also blasted Democrats for rushing the Judiciary hearing and equally for drawing out testimony over nine hours, ensuring that most of the bill’s opponents wouldn’t be heard until it was too late to make the evening news.

“Whether we had a hearing yesterday or whether we had it a few days down the road may not have mattered to the majority party, but it certainly mattered to the public and their ability to testify on the matter,” he said, adding that it was “a travesty” that the committee forced most of the bill’s opponents, including several district attorneys, to wait hours before testifying.

Gardner said he plans to support the referendum legislation if the House advances the rival measure, a position echoed by several district attorneys who testified against the repeal bill and in favor of Fields’ bill.

“We recognize that her proposal is probably our only chance of getting a fair hearing,” Gardner said. “If you truly believe the thoughts and attitudes of the people of Colorado have changed, we have a very good mechanism to ask them.”