Gov. Hickenlooper Grants "Reprieve" from Death Penalty to Nathan Dunlap

Colorado Governor John Hickenlooper today granted a reprieve from the death penalty to Nathan Dunlap, who is scheduled to be executed in August for killings 15 years ago at a Chuck E. Cheese pizza parlor.

The reprieve is not clemency. A future governor could lift it. But it means Dunlap's execution date is canceled and Hickenlooper says he is unlikely to revisit the decision.

"It is a legitimate question whether we as a state should be taking lives," the order says. "Because the question is about the use of the death penalty itself, and not about Offender No. 89148, I have opted to grant a reprieve and not clemency in this case."

The Governor's press release is here. The Executive Order granting the reprieve is here. [More...]

From the Executive Order:

If the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado's system for capital punishment is not flawless. A recent study co-authored by several law professors showed that under Colorado's capital sentencing system, death is not handed down fairly. Many defendants are eligible for capital punishment but almost none are actually sentenced to death. The inmates currently on death row have committed heinous crimes, but so have many others who are serving mandatory life sentences.

Hickenlooper cites the disparity in meting out the death penalty in Colorado, with examples.

We heard of many cases similar to the Chuck E. Cheese shooting, wherein defendants received mandatory life sentences rather than death. (examples) The fact that those defendants were sentenced to life in prison instead of death underscores the arbitrary nature of the death penalty in this State, and demonstrates that it has not been fairly or equitably imposed.

As one former Colorado judge said to us, "[The death penalty] is simply the result of happenstance, the district attorney's choice, the jurisdiction in which the case is filed, perhaps the race or economic circumstance of the Defendant." Indeed, "Death, in its finality, differs more from life imprisonment than a 1 00-year prison term differs from one of only a year or two," U.S. Supreme Court Justices Stewart, Powell, and Stevens wrote in a 1976
decision. Thus, they said, "there is a corresponding difference in the need for reliability."

He also cites the problem with the shortage of execution drugs:

Finally, as a result of the infrequent use and application of the death penalty in Colorado, the State is not immediately equipped to carry out a death sentence. Recent restrictions imposed by pharmaceutical companies and the Food and Drug Administration make procuring these drugs challenging. We must ensure that individuals facing the death penalty are afforded certain guaranteed rights of due process before a state proceeds with an execution.

The Governor quotes former Justice Harry Blackmun who called the death penalty a failed experiment. He also recaps the status of the death penalty in other states and around the world.

Maryland, Connecticut, New Jersey, Illinois and New Mexico recently repealed the death penalty. There are now 18 states without the death penalty and 7 of the states with the death penalty (including Colorado) have not carried out an execution in at least 1 0 years. There has been a moratorium on executions in California for more than 6 years due to concerns regarding the constitutionality of their execution procedures. And the death penalty is effectively suspended in Oregon, where the governor has imposed a moratorium on the death penalty for the duration of his service as governor.

Internationally, the United States is one of only a handful of developed countries that still uses the death penalty as a form of punishment. Approximately two-thirds of countries worldwide have abolished the death penalty in law or in practice, largely due to concerns regarding human rights violations. As U.S. Supreme Court Justice Harry A. Blackmun said, "The death penalty experiment has failed."

Hickenlooper adds that the death penalty is not a deterrent.

I once believed the death penalty had value as a deterrent. Unfortunately, people continue to commit these crimes in the face of the death penalty. The death penalty is not making our world a safer or better place.

By granting a reprieve instead of clemency, Dunlap will remain in administrative segregation. Death penalty inmates are automatically placed in administrative segregation. The conditions are:

  • Single Cell
  • 23 hours a day with a minimum opportunity of 1 Hour out of cell at least 5 days per week.
  • Restrained during movement and escorted by 2 staff
  • Access to grievance process, ADA accommodations, law library, general library, religious programs, mental and medical health services, telephone, non-contact visiting,
    television etc.
  • Televisions are utilized for education and cognitive program delivery as well as personal use.

How does this differ from solitary confinement? According to this 2013 analysis of recent reports on Colorado's Administrative Segregation program,(Toward an Improved Understanding of Administrative Segregation):

Solitary confinement typically refers to conditions that incorporate isolation and sensory deprivation: one person relegated to a small, windowless cell with minimal or no distractions (for example, very limited or no books, magazines, radio, or television), food delivered through a trap door without spoken communication, and no access to other inmates, family, or friends.

By contrast, administrative segregation in Colorado translates to:

As noted by O’Keefe et al. [A Longitudinal Study of Administrative Segregation] the conditions of confinement in administrative segregation in the Colorado State Penitentiary that reflect the study conditions are quite different from those expected in solitary confinement.

Inmates there are provided medications, a library, and programs. An intercom system for on-demand communication between the inmate and the control center staff is present in each cell. Officers make rounds every 30 minutes, performing visual checks. Inmates receive at least one hour of recreation five times per week plus a 15-minute shower three times per week. Incentive-based programming incorporates three progressive levels, bringing more privileges with each level earned. The most restrictive level usually lasts 7 days; thereafter, televisions are permitted in the cells. Three televised cognitive classes are part of the incentive programming. Mental health services include individual counseling sessions, psychiatric medication management, and crisis management.

The ACLU of Colorado on the decision:

"The ACLU of Colorado applauds the Governor for recognizing real inequities in the death penalty and for acting affirmatively to halt movement towards execution of Nathan Dunlap," the group said in a statement.

"Killing Nathan Dunlap would do nothing to prevent crime, add to public safety, or bring back the lives that were lost," the ACLU statement said. "There will never be a way to guarantee a fair and just death penalty, and every execution perpetuates an arbitrary system that can and does make irreversible mistakes."

Extremely upset by the decision, not surpisingly, is the DA of Arapahoe County, who recently filed death charges against Aurora Shooting suspect James Holmes. He sounds like a spoiled brat.

"A man who ran on support of the death penalty can't muster the courage or decisiveness... Hickenlooper had made himself Dunlap's "guardian angel."

Hickenlooper's change of heart of the death penalty has been well-chronicled over the years, and it is based on principle, on knowing things now that he didn't know then, and hardly on indecision or lack of courage.

More on today's press conference at Westword. Congratulations to the defense lawyers for Nathan Dunlap who saved his life. Phil Cherner and Assistant Federal Defender Madeline Cohen. Their statement today:

"We agree with Governor Hickenlooper's well-reasoned decision to grant Nathan Dunlap a reprieve and indefinitely stay his execution. There has been widespread and diverse support from hundreds of people and organizations in Colorado who support permanently commuting Nathan Dunlap's sentence to life in prison without the possibility of parole.

As the Governor notes in his statement, 'Colorado's system for capital punishment is not flawless.' Faith leaders, civil rights organizations, former judges and prosecutors, academics and many others have expressed serious concerns about Colorado's capital punishment system, which is unfair in its application of the death penalty. Colorado's broken death penalty system reflects racial discrimination, geographic concentration, and is used in an arbitrary manner.

The Governor also recognizes that the death penalty is not a deterrent, and 'is not making our world a safer or better place.' Further, as the Governor explains, 'Colorado is not equipped to carry out a death sentence.'

Given the problems with Colorado's use of capital punishment and the apparent inability of the Colorado Department of Corrections to move forward with a legal execution, Governor Hickenlooper made a fair and correct decision to indefinitely stay Mr. Dunlap's execution."

Nathan Dunlap's clemency petition with attachments is available here.

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  • Display: Sort:
    Sometimes the wingers ... (5.00 / 2) (#4)
    by Yman on Wed May 22, 2013 at 11:04:29 PM EST
    Now, if EVERYONE got the death penalty then maybe it would have some deterrent value while at the same time being fairly and equitably imposed.

    ... truly nutty ideas just can't be stifled any longer.

    Smallness of spirit... (5.00 / 1) (#7)
    by sj on Thu May 23, 2013 at 06:27:36 PM EST
    ...can't be hidden for very long, can it?

    Sometimes, ... (none / 0) (#8)
    by Yman on Thu May 23, 2013 at 08:12:45 PM EST
    ... you wonder if they've ever even bothered to try ...

    Read between the lines guys; (none / 0) (#9)
    by NYShooter on Fri May 24, 2013 at 03:56:32 AM EST
    he didn't even say one had to have been found guilty of a crime before imposing the death penalty. He said "Everyone." I wonder what would justify the ultimate penalty in his eyes, and who gets to choose? Hmm...

    I had a conservative clasmmate ... (none / 0) (#10)
    by Yman on Fri May 24, 2013 at 08:28:42 AM EST
    ... in law school who not only insisted that discriminatory application of the death penalty was constitutional, but that any penalty's passed by a legislature were constitutional under the 8th amendment.  The obvious question I asked him when our Con Law class was discussing this issue vis-a-vis the 8th amendment was whether it would be permissible to apply the death penalty for shoplifting, traffic offenses, jaywalking, etc.

    He said, "Of course."

    Lotta chuckling at that response.


    Congrats to the Governor (none / 0) (#1)
    by Dadler on Wed May 22, 2013 at 08:31:06 PM EST
    And to the state of Colorado. Wish ours was still in Governor Moonbeam mode.

    Very interesting. This really shows how (none / 0) (#2)
    by Peter G on Wed May 22, 2013 at 09:58:24 PM EST
    one state can differ radically from another, even when both "have the death penalty."  In particular, I have never previously heard of an indefinite reprieve that leaves someone nominally under a sentence of death.  In Pennsylvania, a "reprieve" is for 30-90 days, to allow some legal proceeding to conclude, or to make a new competency determination, or to complete DNA testing, or the like.

    I wonder if a future governor can cancel (none / 0) (#5)
    by ruffian on Thu May 23, 2013 at 12:32:24 PM EST
    an 'indefinite reprieve'.

    Now I have to read J's post more carefully in case she answered my question!


    And there it is, in her 2nd paragraph! (none / 0) (#6)
    by ruffian on Thu May 23, 2013 at 12:34:07 PM EST
    Future governor can lift it.

    I smell a campaign issue.