Death penalty reprieve in Colorado: what it could mean for James Holmes

Colorado Gov. John Hickenlooper has called off the execution of one of the state’s three death row inmates, churning new debate over the wrenching issue of capital punishment as the state prepares for the trial next year of accused Aurora movie theater shooter James Holmes.

“Our system of capital punishment is imperfect,” he told reporters gathered Wednesday outside the state capitol. “There’s inherent inequity at a level of punishment that really does demand perfection.”   

In an executive order granting a “temporary reprieve” to Nathan Dunlap, who was convicted of murdering four people in a suburban Denver restaurant in 1993, the governor wrote that “death is not handed down fairly” in the state and cited national and international trends toward abolition of the practice.

The death penalty is an issue that Governor Hickenlooper, a Democrat, has dodged deftly until now – and with good reason. For a governor who ran as a moderate in 2010, he has already been dragged leftward on a laundry list of social issues: the legalization of marijuana, civil unions, and, most visibly, gun control. That’s caused rising unease in a state that, while recently slanting leftward, retains a strong conservative base. 

Now, with Wednesday’s executive order, which will be in force unless revoked by another executive order, the governor has set himself up for an emotional confrontation with conservatives in next year’s gubernatorial race.

Republican Attorney General John Suthers, echoing sentiments expressed by many prominent conservatives in the state, said in a statement that Hickenlooper “has proven to be uncomfortable confronting the perpetrators of evil in our society.”

The governor's announcement also circles back to what has become one of the most unexpected political challenges of his term in office: the aftermath of last summer’s Aurora shooting.

Although his order was specifically targeted at Mr. Dunlap, it will throw a wrench into the prosecution of Mr. Holmes, says Karen Steinhauser, a former prosecutor and Colorado defense attorney.  

“When the prosecution seeks the death penalty, they need to be able to say to the victims and to themselves that there is a real likelihood the execution they’re seeking will take place,” she says. “Now that notion is in limbo.”

Like many states, Colorado balances in a shadowy no-man’s land on the death penalty issue. The practice is technically legal, but has only been used once since 1967. In March, the Colorado House of Representative's Judiciary Committee voted against a repeal of the practice after the governor implied that he would veto the bill.

In granting Dunlap a reprieve, however, Hickenlooper noted that his decision was based on the ethical implications of the death penalty in general.

“My decision to grant a reprieve to Offender No. 89148 is not out of compassion or sympathy for him or any other inmate sentenced to death,” he wrote. “It is a legitimate question about whether we as a state should be taking lives."

The governor also cited the “arbitrary nature” of who receives a death sentence in the state. Of the three men who currently sit on Colorado’s death row, all were convicted of murders in a single Denver suburb, Aurora, which was also the site of Holmes’ alleged rampage last July.  

In many ways, the governor’s reprieve for Mr. Dunlap simply holds the status quo. He is not calling for the abolition of the death penalty, experts note, nor is he even granting Dunlap permanent clemency. If Hickenlooper is ousted from his seat in next year’s election, the next governor is free to reverse his decision on the case.

At the same time, the reprieve will likely be a deterrent to future death penalty prosecutions in the state, says Sam Kamin, a University of Denver law professor who coauthored a study on the death penalty cited by the governor in his executive order.

Hickenlooper’s action, he says, “makes clear that Colorado will not be executing anyone anytime soon.”