Time's Up: Colorado's Governor Needs to Pick a Death-Penalty Position

By Andrew Cohen

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Governor John Hickenlooper in March (Rick Wilking/Reuters)

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 "We would have repealed the death penalty in Colorado, and I think we could all stand up proud and strong and know that we did the right thing."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.

The Case Against Clemency

It's hard to know precisely why Dunlap's clemency request triggered such an angry response from prosecutors. My guess is that the case has triggered all the pent-up frustration supporters of capital punishment feel about the process. It has been 20 years since Dunlap committed his crimes. He's undoubtedly guilty. Millions of words have been spoken and written in court about it. Dozens of judges have reviewed the record. Colorado has a death penalty. It has been upheld by the United States Supreme Court. Go ahead and execute him already!

In this Dunlap case, this frustration has manifested itself in odd ways. To prosecutors, Dunlap's apology isn't just unsatisfactory, it is bogus. He doesn't mean it. The same goes for the expert testimony of the men and women who now conclude that Dunlap was mentally ill at the time of his crimes -- the result not just of nurture, i.e. the abuse he suffered at the hands of his family, but also of nature, in the form of brain malformations. These experts aren't just wrong, they are malevolently so and part of a vast conspiracy that includes Dunlap's defense team. Here's the essence of the state's pitch:


For the defendant to seek again to manipulate the system by claiming mental illness contributed to his actions is predictable. For his lawyers to facilitate this charade in the name of "justice" is unfortunately also expected. For the defense lawyers to infer the defendant's race played a role in the DA's decision as a decoy to minimize the brutality of the defendant's conduct is shameful, but expected as well.

But when our state's leaders are asked to accept as "objective" evidence the conclusions of the anti-death penalty movement's "best and brightest" experts, and to ignore their obvious collaborative biases, to disregard their abandonment of professional ethics, and rely upon their convenient "scientific" epiphanies with respect to Nathan Dunlap's brain and behavior, it is then that we must say "enough is enough."

When "the movement" takes over the process and asks the elected Governor of the State of Colorado to forget the victims and see the killer as a victim, then we must ask ourselves, "How can we tolerate this perverted view of justice?"

The Choice

The choice the governor faces can be distilled this way: if he wants to act like a politician, he will permit Dunlap to be executed as scheduled. That's the politically safe choice. If he wants to act like a political leader, he will commute Dunlap's sentence. That's the courageous choice. And if he wants to make his choice historic -- if he wants to make something good come from something so bad -- he will do what no one thinks he can or will do. He will allow Dunlap's execution to proceed and then work tirelessly to repeal the state's capital punishment law.

He can, in other words, become Nixon so that he can go to China. But he will have to sacrifice Dunlap to do so. Some believe it is "morally impossible" for the governor to take such evidently contrary positions. You choose death and then you fight for life? But the two positions aren't necessarily mutually exclusive. The governor can justify doing so on both legal and moral grounds. He can say to constituents that he is duty-bound in the Dunlap case to honor Colorado's existing death penalty law, flawed though it is, but also duty-bound to try to ensure that no future governor, judge, or juror ever has to face the grim choice he now faces.

There is precedent for such a dichotomy. George Ryan, then governor of Illinois, refused in 1999 to grant clemency to convicted ritual murderer Andrew Kokoraleis. The condemned man was executed. Less than one year later, however, as the magnitude of the problems in the state's capital cases became more clear, the governor declared a moratorium on executionsin Illinois. At the time, Gov. Ryan said: "I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life." Illinois has since repealed its capital punishment law.

Gov. Hickenlooper can similarly say that the Dunlap case proves that the death penalty in America is too arbitrary and capricious to enforce on a regular basis; that even in a case like this one, where there are no questions about the defendant's guilt, there usually are profound questions about whether it is just or moral to execute a man anyway. The Dunlap case is among the strongest capital cases any governor is ever likely to review. But it's still manifestly imperfect. And that's the core of the problem. We have not yet devised a justice system based on the human condition that is perfect enough always to justify the government's ultimate sanction.

By showing no mercy to Dunlap, by earning his bona fides in this way, Gov. Hickenlooper could then more credibly pivot to his constituents and say, especially to those who want so badly for Dunlap to die, that capital punishment in Colorado is unworthy of those who seek it. Repeal wouldn't spare Dunlap's life in any event. But it would end the state's failed death penalty experiment. And if the timing is right it will mean, not incidentally, that in his death Nathan Dunlap will finally have accomplished some good in an otherwise miserable life that caused so much pain for so many for so long. Here's how Gov. Hickenlooper could make his case.


The Letter

Dear fellow citizens:

Over the past few months, I have spent a great deal of time reviewing our state's death penalty law, its history, and its application in the case of Nathan Dunlap. I have read the briefs, and the expert reports from all sides, and have consulted at great length with the family members of the victims of the condemned man's crimes as well as the survivors of his violent acts. I have talked to more lawyers in the past months than any man should. When I said in December that I was uncertain about what I would do about capital punishment, I meant it. But since then I've come to some clarity on the issue as well as Dunlap's request to have his punishment commuted from death to life in prison without parole.

I have come to two conclusions. The first is that I cannot in good conscience commute Nathan Dunlap's looming execution. The second is that going forward I cannot in good conscience continue to support Colorado's death penalty law. I will not stand in the way of the August execution of the man who brutally murdered four people. Neither the law nor custom requires me to do so. In this case, I must abide by the law that exists today. But that doesn't mean I have to abide by that law tomorrow or the day after that. Indeed, from this day on I will do all I can to repeal the state's capital sentencing laws. After today, I will no longer "tinker with the machinery of death," to quote Supreme Court Justice Harry Blackmun. Let me explain why.

Why I Won't Commute Nathan Dunlap's Sentence

Were I writing on a blank slate, I would commute Nathan Dunlap's sentence to life in prison without parole. I believe there is ample evidence at this time to support such a result. There are questions about his mental health at the time of his crimes and about abnormalities in the size and shape of his brain. There are questions about the role race played in his prosecution and sentence. There are broader questions, in Colorado and the rest of the country, about the arbitrary nature of capital punishment -- why some murderers are sent to death row and others aren't. These questions so far have proven to be legally insufficient to give Dunlap any relief. But that doesn't make them any less real.

The defense wants me to stop my inquiry there. They remind me that my clemency powers are absolute here; that I am bound neither by the countless court rulings that have been made in this case nor the legislative policies upon which Colorado's death penalty are based. But not being bound by this history and precedent doesn't mean that I would be wise to ignore it. The fact is that I am not writing on a blank slate. I am writing on the backs of judges and lawyers and medical experts and jurors and witnesses, all of whom have contributed to putting Nathan Dunlap where he is today. I am not comfortable rejecting all that has come before me in this long, tragic case. I am not comfortable overturning all of those judgments just because I can.

The condemned man now says that he is sorry. Unlike the prosecutors, I believe him. I believe that someone who could have so coldly killed in 1993 can feel genuine remorse and regret 20 years later. I believe that people can change. I believe that the medicine Nathan Dunlap now takes has helped him understand the nature of his crimes. I believe that he had a terrible childhood -- that in many ways he was doomed from the start. I believe all of this -- but sadly for Nathan Dunlap, none of it is enough to justify countermanding the decision the jury returned all those years ago in this case, the decision upheld by one judge after another. Those decisions have to count for something if we are to continue to be a nation ruled by law.

I recognize that some jurors now claim they never would have voted for a death sentence had they known about Dunlap's mental illness. But the questions I mentioned above -- questions about the man's mental state and physical condition -- cut the other way, too. Judges are far better equipped than me to evaluate the credibility and reliability of the expert testimony the defense has cited to sway these jurors. And yet no judge has ever ruled that Nathan Dunlap should get a new trial, or even a new sentencing trial, based on the medical information that has come out since his trial. That must count for something, too, even in a capital punishment regime that is, as I will now discuss, deeply flawed in both conception and implementation.

Why I Will Seek to Repeal Colorado's Death Penalty

If the Nathan Dunlap case proves anything, it proves that a defendant's journey to death row is dependent on any number of random factors, from the venue of his crimes to the color of his skin to the appointment of his public defender to the makeup of his jury to the competence of the experts who examine his mental capacities. To say that Dunlap deserves to die because his trial was less imperfect than other capital trials here in Colorado and around the nation is to acknowledge the enormity of the problem. It is to accept something less than we would want in our own cases. You may be comfortable with that formula. I am not. And I'm going to do something about it.

My review of the record of this case, and of the record of other capital cases in Colorado, tells me that the criminal justice system is set up to fail in capital cases. Prosecutors too often overreach. Witnesses too often have imperfect memories or are tainted by promises made by the government. Defense attorneys are too often grossly overworked or plain incompetent. Jurors are too often swayed by passion and prejudice. Expert testimony, as we see in the Dunlap case, is mercurial at best. And the courts, including the United States Supreme Court, have not done enough to ensure more accurate results at trial or to remedy those cases where inaccuracies have occurred. I can't fight the justices. But I can effect change here at home.

So I will move now to aid the legislative effort repeal the state's death penalty law. It is too expensive to implement, too arbitrary in its application, and too susceptible to human error to administer in a way that should give any of us comfort not just that we've gotten it right in any single case but that we've gotten it right in all cases. It is an enormous burden to meet and none of us can ever be sure we've met it. I will leave the moral judgments about capital punishment to the moralists and say simply that, as a matter of public policy I have come to believe, strongly, that Colorado should approach sentencing in a more enlightened way. The death penalty experiment has failed. We should acknowledge that this is so and move on.

If Colorado had no death penalty 20 years ago, Nathan Dunlap would long ago have been forgotten serving a life sentence without parole. The state would have spent millions less in defending its capital conviction against him. The family members of his poor victims would long ago have accepted his punishment. And the anger that is palpable today -- in the papers filed by prosecutors, in the cries of the family members of victims -- would long ago have subsided. Colorado is sharply divided on this issue. I recognize that. But that is no excuse not to act. We've learned a lot about capital punishment since Nathan Dunlap committed his awful crimes. We've learned that we can always do better. Repealing this law would be a step toward that worthy goal.


UPDATE, 3/21: Phil Cherner and Madeline Cohen, counsel for Nathan Dunlap, reply:

Mr. Cohen implies that if Governor Hickenlooper commutes Nathan Dunlap's death sentence, which Mr. Cohen seems to agree was imposed under a biased and unfair system, then the Governor would be undermining the existing legal decisions in the case. However, the Governor's power to commute a death sentence, enshrined in the Colorado Constitution since its inception in 1876, is an integral part of the legal process, not simply a refutation or denial of previous decision. The writers of our state's constitution stipulated that the Governor's role in the process, while different, is no less important than the jury's or previous judges in the case. He alone can consider the case in its totality, which includes questions about fairness and the death penalty, including issues of racial discrimination, geographic concentration, and other issues; the mental health issues in the case; the concerns of jurors who did not have all the information; and other important issues. The power to commute is an integral part of how our framers conceived of capital punishment, and it remains a vitally important safeguard against unfair outcomes in capital cases.

This article available online at:

http://www.theatlantic.com/national/archive/2013/05/times-up-colorados-governor-needs-to-pick-a-death-penalty-position/276016/