On Death Penalty, Colorado Governor Buys Himself Some Time

A condemned man is spared, for now. But after a day of drama in Denver, questions about Colorado's death penalty and the case of Nathan Dunlap remain unanswered.
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Rick Wilking/Reuters

Faced with a life or death choice over the fate of convicted murderer Nathan Dunlap, Colorado Governor John Hickenlooper decided instead Wednesday afternoon to buy himself, and the condemned man, more time. Infuriating some family members of the victims of Dunlap's 1993 crimes, and delaying a substantive decision on the fate of the state's beleaguered capital punishment regime, the governor issued a "temporary reprieve" indefinitely blocking Dunlap's scheduled August execution until further notice, the Denver Post reported.

That "further notice" may never come, at least from this governor. At a dramatic press conference held immediately after the reprieve was announced, Gov. Hickenlooper said it "is highly unlikely that I will revisit" the order. Dunlap's attorneys immediately praised what they called the governor's "well-reasoned decision." The prosecutor in the case quickly suggested that the reprieve was motivated by the governor's political ambitions in 2014. And the Post provided some immediate reaction from some of the family members of Dunlap's victims:

"The knife that's been in my back for 20 years was just twisted by the governor," said a visibly upset Bob Crowell, whose daughter, Sylvia, was among those killed by Dunlap. Crowell made the comment after a conference call with the governor. Families of other victims could be heard shouting at Hickenlooper during the call.

"The justice system is broken," Crowell said during the call. During the news conference after the phone call with victims' families, Hickenlooper acknowledged that their general reaction was "disappointment."

Citing their client's mental illness at the time of the crimes, and abnormalities in his brain,  Dunlap and his defense team had asked for clemency -- a life sentence without parole. The family members of Dunlap's victims, and prosecutors, had asked that the long-awaited execution of one of the state's most notorious criminals be permitted to proceed. The governor in recent weeks had consistently expressed his concerns about the case without tipping his hand on which way he would decide (Here is a link to The Atlantic's prior coverage of this story). In Wednesday's order, the governor again framed the issue of capital punishment as an open one, despite Colorado's long-standing death penalty laws. From the Post:

"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 bottom line here is that Dunlap will remain for now on the state's death row without any likelihood that he will ever be executed. The state's death penalty law will remain on the books but wholly uncertain in its application. And the so-called "closure" that many people involved in this sad story had hoped would somehow come to them with the resolution of this 20-year-old drama remains perpetually elusive. In this case -- an essentially political case about law and order, life and death, justice and injustice -- Gov. Hickenlooper has made a politician's essential choice. He has decided something profound without really deciding anything at all.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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