The 22 Coloradans who decide whether a person should face the possibility of execution are divided on nearly every aspect of the death penalty and whether state lawmakers should end the practice.
District attorneys across the state disagree on whether the death penalty is effective, how it should be used — if at all — and how the state should decide whether to repeal it. At least three elected prosecutors support a bill to end execution in the state, enough of a shift from a decade ago that the statewide district attorneys’ council no longer takes a stance on the issue.
The district attorneys’ debate comes as the state legislature considers a bill that would repeal the death penalty in Colorado. The Senate will vote as soon as Wednesday on the bill; the House has not yet considered it.
At the crux of the divide, district attorneys disagree on whether the possibility of the death penalty is necessary to facilitate plea deals on potential capital cases and avoid lengthy, costly murder trials. Without the death penalty, more defendants will be able to plead to second-degree murder, district attorneys who oppose repeal warned, though they clarified that they wouldn’t seek death in a case that didn’t merit it simply to obtain a plea.
“Without this tool that we have at our disposal right now, reserved for the worst of the worst, those pleas simply don’t happen,” said Republican Weld County District Attorney Michael Rourke, citing the recent case of a Frederick man who pleaded guilty to murdering his family to avoid the death penalty. “Chris Watts doesn’t have an incentive at that point.”
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The vast majority of all criminal cases are resolved by plea deals, including murder cases, said District Attorney Dave Young, a Democrat who represents Adams and Broomfield counties and opposes the repeal. He is pursuing the death penalty against a man charged with killing Adams County sheriff’s Deputy Heath Gumm.
“We would not be able to do that without leverage,” he said. “The whole legal system is based on leverage — not just criminal cases.”
Denver District Attorney Beth McCann disputed that analysis and said convictions shouldn’t rely on the prospect of the death penalty, but instead on the strength of the evidence in the case. McCann has said publicly that she will not seek the death penalty in any case because she morally opposes it, and she has said the decision has not affected her ability to convict.
“I really don’t view it as a bargaining chip, if you will,” McCann said in an interview.
Research on the effect the death penalty has on plea bargains is relatively sparse.
One 1995 study of cases in New York found that the threat of execution did not increase defendants’ likelihood of pleading guilty but did convince them to agree to harsher punishments. A 2013 study of cases in Georgia found that the death penalty slightly decreases the probability that a case will go to trial but did not save the state money.
Ten years ago, the Colorado District Attorneys’ Council lobbied against an attempt to end the death penalty. For the last decade, however, the council representing the state’s 22 district attorneys has not taken a position on attempts to end the death penalty because there is no longer a super majority who agree, said Tom Raynes, the council’s executive director.
“We have not had that level of agreement on the death penalty since I have been here,” said Raynes, who started at the council in 2010.
Three Democratic district attorneys — McCann, Boulder District Attorney Michael Dougherty, and Bruce Brown, who represents Summit, Lake, Eagle and Clear Creek counties — told The Denver Post or have publicly stated that they oppose the death penalty. Eight have said they support the death penalty, and the remaining did not respond before deadline for a request for comment on the issue. About 60 percent of the district attorneys are Republicans.
Nationally, district attorneys often are split along rural and urban lines about the future of the death penalty, said David LaBahn, president and CEO of the Association of Prosecuting Attorneys. Those who represent suburban areas with little crime tend to support the death penalty because murders there often garner more attention and deeply disturb the community’s sense of safety.
“Most everyone who has touched death penalty cases don’t do it with a zest and a zeal,” he said. “It’s an incredible amount of reluctance. Everything else we do is to protect people and restore life.”
Even among those district attorneys who oppose the death penalty, McCann stands out for her decision to not pursue the penalty in any case, LaBahn said. Many others who don’t believe in the death penalty believe they still must use it when applicable because it is the law.
“She is one of the few to flat-out say, ‘I know this is the law but I won’t do it,’ ” LaBahn said.
McCann faced criticism for that decision from her peers in Colorado, who said they believe district attorneys have an ethical obligation to pursue the death penalty if it is appropriate because it is state law.
“When I raised my right hand to take an oath to uphold and defend Colorado’s laws, there was no asterisk there,” said Republican District Attorney George Brauchler, who represents Arapahoe, Douglas, Elbert and Lincoln counties and opposes repeal.
McCann said the law grants her broad discretion to make that decision.
“If my constituents feel that we’re not prosecuting aggressively enough, that’s something they can decide at the voting booth,” she said.
The district attorneys who oppose the bill argued that the decision on the death penalty should not be made by the General Assembly and instead be put to a referendum vote of the entire state, which have been unsuccessful recently in other states.
