Does Colorado want death penalty? Holmes trial might give insight

The James Holmes trial is taking place against a backdrop of increasing ambivalence about the death penalty in America. Colorado, where the trial is taking place, has executed one person since 1976.

When the James Holmes trial comes to a close later this summer, jurors will first have to decide whether the Aurora shooting perpetrator – who killed 12 and wounded 70 when he opened fire in a crowded movie theater – is innocent by reason of insanity, a defense many experts say is a long shot in a case this horrific.

If jurors find him guilty, they’ll then have to determine whether Mr. Holmes should get the death penalty, as requested by prosecutors, or life without parole.

Meanwhile, jurors in another national death-penalty case will begin deliberations today as to whether Dzhokhar Tsarnaev, who was found guilty last month of all 30 counts against him in the Boston Marathon bombing case, should be put to death.

Those two high-profile cases are taking place against a backdrop of increasing ambivalence about the death penalty in America, where national support has dropped from close to 80 percent in the 1990s to 56 percent today. That ambivalence is particularly apparent in the states where the trials are taking place. The verdicts – particularly if life sentences are returned in such high-profile cases – could end up offering significant insight into shifting views on the penalty.

“Both death-penalty supporters and death-penalty opponents are very interested in what will happen in these two trials,” says Robert Dunham, executive director of the Death Penalty Information Center, a national nonprofit that compiles data and analysis related to the death penalty. Mr. Dunham emphasizes that both cases are extreme offenses that aren’t typical of capital cases, and which makes extrapolating general conclusions from them challenging. But they also both have mitigating circumstances the juries will have to consider.

“The offenses are clearly among the worst, but the circumstances surrounding the offenses are troublesome,” says Mr. Dunham. “You can imagine juries in both cases returning either verdict.”

In Massachusetts, the death penalty has been abolished since 1984 (not a factor in the bombing trial since it’s a federal case) and polls have shown a majority of Boston residents favor life without parole for Mr. Tsarnaev.

In Colorado, just one person has been put to death since the death penalty was reinstated nationally in 1976, and three inmates are on death row. Democratic Gov. John Hickenlooper granted a temporary reprieve to one of those inmates in 2013, citing his concerns with the death penalty – a decision that came back to haunt him in the 2014 election, where he was ultimately reelected.

“It is a penalty that has been used very infrequently; it is a penalty which the people of Colorado do have very mixed feelings about,” says Karen Steinhauser, a former prosecutor and Colorado defense attorney.

Still, Ms. Steinhauser emphasizes that the decision in this case will ultimately be about James Holmes and the evidence jurors are presented with.

“The issue is going to be first of all, if we get to the death penalty phase, and whether the jury decides unanimously that death is the appropriate sentence,” Steinhauser says. “Without regard to what the governor has done, without regard to whether other people have or have not been executed. The issue for jurors in this trial right now is to decide whether this is the appropriate sentence, given that Colorado still has the death penalty."

The prosecutor in the Holmes trial, Arapahoe County District Attorney George Brauchler, has been adamant that death is the correct sentence, telling Coloradans that “justice is death” at a hearing two years ago. Mr. Brauchler rejected an offer by Holmes’s lawyers to avoid a trial by agreeing to plead guilty in exchange for life without parole. And some of the victims and their family members in the Aurora shooting have said they think death is the only acceptable punishment.

But Dan Recht, a prominent Denver defense attorney, notes that decision has meant greatly prolonging the legal process and spending millions of public money, and will take an emotional toll on jurors, witnesses, and victims. He cites the parents of 8-year-old Boston Marathon bombing victim Martin Richard, who have urged that Tsarnaev be given life without parole.

“When you have victims’ families urging life in prison without parole and not the death penalty, that’s significant, and shows I believe a shift in how people view the death penalty,” says Mr. Recht.

In the Holmes trial, the mitigating factors involve mental illness. Even if the jury ignores Holmes’s insanity defense, virtually everyone agrees he suffers from mental illness – a factor that further affects how Americans view the death penalty. The most recent national poll, conducted late last year, shows Americans opposing the death penalty for people with mental illness by a 2-to-1 margin.

“Holmes’s case raises very serious issues of mental health and the question of whether a person who is so extremely mentally ill should be the subject of the death penalty,” says Dunham.

Given the constraints on jury selection, neither jury – and particularly the one in Boston – is actually reflective of the conscience of the community, Dunham says. All of which could make a life-imprisonment verdict, if it happens in either case, particularly noteworthy.

“If [Holmes] isn’t given the death penalty, I believe that will hasten the day in Colorado when the death penalty is abolished,” says Recht. But no matter what the verdict in the Holmes case is, he believes that day will eventually come. “In Colorado, the death penalty’s death is a foregone conclusion,” he says – whether by legislature, court decision, or ballot initiative.

Still, polling in the state suggests a large majority of Coloradans (69 percent in a poll two years ago) support the death penalty, and Hickenlooper took extreme criticism over his decision to grant a reprieve to inmate Nathan Dunlap, the death row inmate who killed four employees at a Chuck E. Cheese restaurant. It was a factor that nearly cost him reelection.

When he announced his decision to seek the death penalty, Brauchler said his office had polled more than 800 people connected to the shooting.

With Hickenlooper’s decision that no death-row inmate will be executed during his governorship, Colorado has joined Washington, Oregon, and Pennsylvania as states that have capital punishment on the books but have some sort of governor-imposed moratorium.

“Historically, Coloradans are not viewed as vindictive people, and they don’t have a reputation for blood lust in prosecutions,” says Dunham.

Nationally, opinion of the death penalty has been affected by increasingly publicized concerns about innocence, fairness, reliability, and cost of imposing the death penalty, he says – all of which could play into the decisions of jurors even when they support capital punishment.

“What makes both Aurora and Boston interesting for observers to watch is that they both have compelling reasons for death verdicts, and they both have compelling reasons for life verdicts,” says Dunham.