In late March, the Democrats who control the Colorado House of Representatives thought they were on the verge of repealing the state's death penalty law, used sparingly but not without controversy since the Supreme Court reinstated it in 1976. "I have the votes in the House to pass the bill and it's not just partisan, it's bipartisan," said the repeal bill's co-sponsor, Representative Claire Levy (D-Boulder). But in a private meeting that week with lawmakers, Governor John Hickenlooper, his local chops high, his national stature growing, voiced doubt about the bill.
"He did not say, 'I will definitively, undoubtedly with no question veto this,'" Rep. Dan Pabon (D-Denver) told the Denver Post. "But he did say that is something he is bouncing around. He used the 'v' word." The "v-word" from the governor was enough to block the measure. "I think had the governor not signaled so strongly that he wouldn't sign the bill, I think we would have had those votes," Rep. Levy said. "We would have repealed the death penalty in Colorado, and I think we could all stand up proud and strong and know that we did the right thing."
Without even a public threat of a veto, Gov. Hickenlooper had imposed his will on the issue. And everyone in Colorado seems to have a theory about why. He didn't want the repeal effort to cloud the legislature's frenetic work on gun safety. He believes in capital punishment more than he has let on. He was saving his fellow Democrats from scorn in the next election. He genuinely thinks the issue should be resolved by a popular vote, which would almost certainly ensure that capital punishment stays a part of the state's sentencing scheme.
Whatever the case, the time for private vetoes and backroom maneuvering is over. The time has come for Gov. Hickenlooper to make a very public choice between life and death -- and, in so doing, to shape the contours of a debate that has sounded furiously all over Colorado for the past few months. In the next few weeks, perhaps even in the next few days, the governor will have to decide whether Nathan Dunlap, one of the state's most notorious murderers, lives or dies. And this time there will be no legislature to hide behind.
A State Divided
Dunlap, who murdered four people at a Chuck E. Cheese pizzeria in Aurora in 1993 and later bragged about the killings in a jailhouse interview shown on local television, is scheduled to be executed by lethal injection the week of August 18th. He is one of only three men, all of whom are black, who are currently on Colorado's death row. While his lawyers continue to seek relief from the courts, the focus of their efforts has been a clemency request asking the governor to commute their client's sentence to life in prison without the possibility of parole.
The issue has riven the state. Virtually every major newspaper has come out in favor of clemency -- for many of the same reasons that the repeal effort seemed on its way to success before Gov. Hickenlooper sabotaged it. But many conservatives, victims'-rights advocates, and the law enforcement community have reacted to Dunlap's request with remarkable scorn. So have prosecutors in the case. Their response to Dunlap's clemency request is by far the angriest I have ever read in any clemency case I have ever covered.
As he is on many other contested issues, and as befitting a politician who reckons he has a few more elections to go, Gov. Hickenlooper isn't easy to pin down on death. A few months before he blocked the repeal effort, before he undermined his fellow Democrats, he explained how much of a role his looming decision plays in his mind. "I wrestle with this," he told the Associated Press in December, "right now, on a pretty much daily basis in a position where we have a couple of death row inmates that are going to come up and I haven't come to a conclusion."
In February, in an interview on Colorado Public Radio, Gov. Hickenlooper disclosed that he has talked about the death penalty with Archibishop Charles J. Chaput, an outspoken opponent of capital punishment. "I don't feel that I've got, I've got to the final place where I'm going to get," the governor said. In March, in another radio interview, he said "what I'm trying to look at now is to look at how many places have we not asked for it where the circumstances were just as heinous, just as malevolent and evil as in Nathan Dunlap. And if that's true, are we really meting out justice?" More recently, he has said on the topic: "[C]ertainly what I believed a year ago is not the same as what I believe now."
These comments have given hope to Dunlap and his advocates. This is a governor, they believe, who is willing to reevaluate old arguments about retributive justice. It's a governor who appears at least willing to study clemency memos. It's a governor clearly struggling with the moral and philosophical questions posed by the government's taking of life. But, by the same token, Gov. Hickenlooper's more recent move to block the repeal effort has given comfort to those who believe he's not as wishy-washy on capital punishment as he sounds. If anyone deserves to be executed, they say, it's Dunlap, for a time Colorado's most infamous villain.
The Case for Clemency
First of all, in his clemency request, Dunlap says that he is sorry. "For the pain and suffering I've caused the victims' families and friends ... I'm sorry for the hate that I've created. I'm sorry for the loss of life. The loss of friends, family and loved ones. ... I know saying, writing, and feeling sorry isn't enough and I wish there was something more that I could do to relieve the pain." This isn't dispositive, of course. Most condemned prisoners express remorse in the hangman's shadow. But it's not nothing, either. Here's how Dunlap's team frames their case:
There are many reasons to spare Nathan Dunlap, and there is no principled reason to execute him. He has been safely housed in prison for nearly 20 years, and he poses no danger to others. His execution will have no deterrent effect, and his case involves the same problems of racial bias, arbitrariness, and geographical disparity that have led to calls for the repeal or reform of Colorado's death penalty.
Nathan Dunlap's childhood was characterized by extreme physical, emotional, and sexual abuse. The jury that sentenced him to death knew nothing of his serious mental illness, or the role of that illness in his commission of the murders. Nathan Dunlap -- then 19 years old -- was in the grip of his first full-blown manic phase when he committed his terrible crime.
Today, three of Mr. Dunlap's trial jurors say that if they had known about his bipolar disorder and psychosis, they might have voted for life, instead of death. Under Colorado law, even one juror's "life" vote would have spared Mr. Dunlap. Further, recent neuro-imaging confirms that Nathan Dunlap suffers from significant brain abnormalities that impair his impulse control and moral reasoning. This brain damage was surely present in 1993, and it further helps us understand how Mr. Dunlap came to commit his terrible crime.
Not a single black person was on Dunlap's jury when he was tried, convicted, and sentenced to death. On appeal, the Colorado Supreme Court said the prosecutor's closing argument in the sentencing phase of the trial was "inflammatory and biased" and a "highly inappropriate appeal to passion and prejudice." It didn't matter. Dunlap's conviction was affirmed, over and over again, as the case has wound its way through the courts. And that may say more about the law than it does about the defendant.