Radelet's new book, The History of the Death Penalty in Colorado (University Press of Colorado), hits bookstores just in time to give lawmakers a comprehensive look at the 103 executions that have taken place here since 1859, as well as a compilation of dozens of other cases in which men were sentenced to death but never executed. It discusses botched hangings (like that of Eddie Ives), our short-lived experiment with using three-judge panels to impose death, the increasingly cumbersome legal machinery of death appeals, and what Radelet describes as Colorado's "ambivalence" about the death penalty, embodied in such disparate events as a jury's refusal to sentence Aurora theater shooter James Holmes to death and Governor John Hickenlooper's controversial "reprieve" for Nathan Dunlap.
The state has actually imposed the ultimate penalty only twice in the past half-century — most recently a full twenty years ago, when rapist/murderer Gary Davis was executed by lethal injection. But efforts to put the state's seldom-used death penalty out of its misery in recent years have consistently met strong opposition from district attorneys and the state's powerful victims lobby. Will this year be any different? We decided some historical perspective from Radelet might help give us some idea. Here's our recent conversation:
Westword: Senate Bill 95 refers to the death penalty in Colorado as a “failed policy.” Would you agree with that?
Michael Radelet: Those are Lucia Guzman’s words, and she’s been a foe of the death penalty ever since she was a little girl. A failed policy? There are some things it does real well; it allows politicians to create the false impression that they’re actually doing something about crime. It allows them to look tough. In terms of political advantage, it’s not a failure. But as a criminal-justice policy, by any measure, it certainly is.
We’ve been close to abolition before – and actually have had periods when executions were banned in Colorado. Is the political climate right now to eliminate all future executions?
We abolished the death penalty once – in 1897. We brought it back in 1901 to deter lynchings, not homicides. In 2009 the legislature came within one vote of abolishing it again. Whether Governor Bill Ritter would have signed that legislation is unknown; he played his cards very close to the vest. This year, this hearing on Wednesday is in the Senate Judiciary Committee. I think the chances are very slim because of the makeup of that committee. As far as I know, no Republican has signed onto the bill — not even the Catholic Republicans. And what Governor Hickenlooper does is another question.
What’s your view on the arguments about racism in the prosecutors’ discretion over who gets prosecuted as a capital case? All three of our current death-row residents are, as you know, African American men who went to the same high school.
If you look to cases in which they sought death since 1980, the argument shifts around — to the race of the victim. There are very few cases where death is sought for killing people of color. In the last ten years or so, there have been some pretty horrific homicides with multiple Hispanic victims, where the death penalty was not sought.
What does the history of the death penalty in Colorado teach us about how this state has dealt with the legal and moral issues of execution, compared to other Western states?
In Colorado, we’ve never really been gung-ho about it, like Texas. But in other Western states, there has also been ambivalence about the death penalty. New Mexico abolished it. Nebraska abolished it for a while; they talked about fiscal responsibility, small government and religious values. Then the governor, Pete Ricketts, vetoed the bill. The legislature overrode the veto. And then Ricketts — his family is loaded, and the family donated several hundred thousand dollars to a ballot initiative, and the death penalty was restored.
But even the most conservative states have ambivalence about it. The trend nationally for the last fifteen years has been a trend away from the death penalty, on several different fronts. Public support for the death penalty is dropping; the most recent poll shows that more people support life without parole. There have been fewer people sentenced to death, fewer executions, more religious leaders speaking out. And more states abolishing the death penalty: New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland, Delaware. And you’ve got moratoria, led by other governors following Governor Hickenlooper’s lead, in Oregon, Washington and Pennsylvania. Clearly, something is going on. Around the world, the trend is all in one direction over the past forty years; we’re just looking for the final nail in the executioner’s coffin, so to speak. But how Colorado gets there is still up in the air.
Do you think state leaders have had the “intense conversation” about the death penalty that Hickenlooper hoped they would have when he granted a temporary reprieve to Nathan Dunlap?
I don’t know about state leaders, but more and more people are talking about it. Students are talking about it, churches are talking about it. But it’s not a top-ten issue in Colorado. It’s not really front and center. If Hickenlooper ends up commuting the sentences of the three men now on death row, then we’re at least twenty years out to the next possible execution. Maybe more than that. Meanwhile, it’s a good time to be an attorney.
In your book, you write that the conversation has shifted from who should die to who should kill, that we’re making “godlike decisions without godlike skills.” Are there particular instances of that in Colorado that come to mind?
We can start with Joe Arridy. [Arridy, a man with an IQ of 46 who was executed in 1939 after a highly dubious "confession" of involvement in a rape and murder in Pueblo, received a posthumous pardon from Ritter in 2011.] There have also been prosecutions in Colorado where the guy ended up acquitted. Right now the death penalty seems to be reserved not only for people of color from Arapahoe County, but they also seem to [want to use it] with the mentally ill — James Holmes, and they still haven’t announced if they’re going to seek death for Robert Dear. That’s what I mean by godlike decisions: There are many cases where the circumstances are highly aggravated, yet the death penalty is not pursued.
When you address these senators about this bill, what do you think is the most important thing to get across?
I think if we look at this on a basis of empirical facts and research, there’s no question they’ll vote to abolish. On the issue of cost, of inequities, of deterrence, and helping the families of homicide victims – those are all abolitionist arguments now. But if you look at it on the basis of emotion, then [the bill] won’t pass. The knee-jerk reaction is pro-death, but the more people know about the death penalty, the more likely they are to oppose it.