John Hickenlooper gives Nathan Dunlap reprieve from death but doesn't grant clemency

Moments ago, Governor John Hickenlooper announced his decision regarding the scheduled execution of Nathan Dunlap, who was convicted in 1996 of killing four people and seriously wounding a fifth during an assault three years earlier at a Chuck E. Cheese restaurant.

Rather than granting clemency, as had been requested by those supporting Dunlap, Hickenlooper chose to offer a reprieve -- a temporary delay that can be reversed by a future governor if he or she so chooses.

News leaked about Hickenlooper's decision in the hour prior to his scheduled 2 p.m. press conference (which got underway a few minutes late), apparently thanks to District Attorney George Brauchler, a death penalty advocate who felt that Dunlap deserved the ultimate discipline. He confirmed to 7News and other news agencies that Hickenlooper had chosen to grant a reprieve -- a decision with which he wholeheartedly disagrees.

Copies of the executive order confirming Brauchler's statements were circulated in the moments before Hickenlooper walked to the podium in the west foyer of the State Capitol.

When Hickenlooper stepped forward, he declined to mention Dunlap by name in announcing his course of action, choosing instead to refer to him as "offender number 89148," under the rationale that he'd gotten enough notoriety already for his terrible acts.

Hickenlooper thanked the victims of the murderous attack for sharing their stories with him and stressed that the decision had "weighed heavily on me for, well, it's been over a year now." But given his statutory responsibilities, "inaction wasn't an option."

Among the questions Hickenlooper asked himself in considering what he would do included mulling whether the death penalty was "just or moral" and "a benefit to the world." The more he studied the topic, the more he concluded that the system was imperfect -- and given the seriousness of the subject, "it really needs to be perfect."

He stressed that he had no doubt about "the heinous nature of the crimes committed," but he was troubled by "the inequity of the system.

"I am deeply respectful of the suffering and loss that occurs," he said. "But it's hard to see...the benefit of the capital punishment system" -- one that takes fifteen to twenty years to wind through the court system and "extends the emotional hardship for those families... "

In the end, he realized that he couldn't in good conscience give the go-ahead to "kill someone who is no risk to society."

At the same time, Hickenlooper said he didn't feel comfortable taking "the larger step" of granting full clemency. He viewed the reprieve as a way to show "respect to all the jurors and judges and prosecutors...respect to the rule of law in the State of Colorado."

After his opening statement, Hickenlooper took a number of questions. He characterized the reaction of family members of those killed by Dunlap as "largely disappointment... The majority of the families really did feel they'd get closure from an execution."

In the end, though, he took another path, based on the bigger picture.

"Every study we've seen demonstrates that there's no deterrence by having a death penalty in a state," he said. "It doesn't make you safer. And there's ample examples of innocent people in other states being sentenced to death. The fallibility is clear, the inequity.... These facts, and I could go on for a half an hour, have been widely disseminated, but people aren't aware of these facts.... It's not just random that so many states have repealed the death penalty, and so many countries have done away with the death penalty."

Also against capital punishment, he said, was Tom Clements, the Department of Corrections head assassinated earlier this year, presumably by recent parolee Evan Ebel. "He was a pretty hardass, tough head of corrections," Hickenlooper stressed. "But he was adamantly against the death penalty. He and his wife, Lisa, were against the death penalty, and Lisa's still against the death penalty, even after what happened to her husband."

Clements's argument against capital punishment at a meeting a year or so ago "affected everybody in the room," Hickenlooper recalled.

The next governor of Colorado can choose to lift Dunlap's reprieve, Hickenlooper pointed out -- so he didn't take the decision away from him or her. Still, he doubts that his successor will reverse course.

"I think it's more likely, and this is my bias, having spent this amount of time immersed in the issue, that as the facts get out, more and more people in the State of Colorado will say, 'This isn't the best solution....' Maybe the better solution would be to get people off the streets and give them life without parole and stop talking about it."

With that, one person in the gallery began to applaud.

Continue reading for Governor Hickenlooper's formal statement, a response from attorneys/Dunlap supporters Madeline Cohen and Philip Cherner, and the complete executive order, followed by our earlier coverage. Governor John Hickenlooper's statement about Nathan Dunlap:
Gov. Hickenlooper grants temporary reprieve of death sentence

DENVER -- Wednesday, May 22, 2013 -- Gov. John Hickenlooper signed an Executive Order today that grants Nathan J. Dunlap, also known as Offender No. 89148, a temporary reprieve from his death sentence.

The Colorado Constitution provides for one final review by the governor before the State executes another human being. This check is one that, from its Common Law origins, embeds in the governor the authority to grant a reprieve. Not taking action in this case was not an option.

"I have taken this responsibility seriously," Hickenlooper says in the Executive Order. "As Governor, I must either direct state employees to execute a human being, or I must exercise my constitutional authority to stop an execution. Both paths require an affirmative decision by me, and the prospect of either decision has been daunting. It has forced me to think of the issue in a personal way because it is on my conscience the decision will weigh. I am confident that most Coloradans - no matter what their views on the death penalty may be - will respect and understand the unique burden of this decision."

The governor met in recent weeks with prosecutors, clergy, victims and their families, law enforcement, defense attorneys, and countless other people to discuss this case and the death penalty. In granting the reprieve, the governor used the Executive Order to explain a number of issues, including:

Colorado's imperfect capital punishment system "If the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado's system for capital punishment is not flawless. A recent study co-authored by several law professors showed that under Colorado's capital sentencing system, death is not handed down fairly. Many defendants are eligible for capital punishment but almost none are actually sentenced to death. The inmates currently on death row have committed heinous crimes, but so have many others who are serving mandatory life sentences. ... As one former Colorado judge said to us, '[The death penalty] is simply the result of happenstance, the district attorney's choice, the jurisdiction in which the case is filed, perhaps the race or economic circumstance of the defendant.' Indeed, 'Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two,' U.S. Supreme Court Justices Stewart, Powell, and Stevens wrote in a 1976 decision. Thus, they said, 'there is a corresponding difference in the need for reliability.'"

Issues surrounding the statutorily required drugs for lethal injection "... as a result of the infrequent use and application of the death penalty in Colorado, the State is not immediately equipped to carry out a death sentence. Recent restrictions imposed by pharmaceutical companies and the Food and Drug Administration make procuring these drugs challenging. We must ensure that individuals facing the death penalty are afforded certain guaranteed rights of due process before a state proceeds with an execution."

National and international trend toward abolition of the death penalty "Maryland, Connecticut, New Jersey, Illinois and New Mexico recently repealed the death penalty. There are now 18 states without the death penalty and 7 of the states with the death penalty (including Colorado) have not carried out an execution in at least 10 years. There has been a moratorium on executions in California for more than 6 years due to concerns regarding the constitutionality of their execution procedures. And the death penalty is effectively suspended in Oregon, where the governor has imposed a moratorium on the death penalty for the duration of his service as governor. Internationally, the United States is one of only a handful of developed countries that still uses the death penalty as a form of punishment. Approximately two-thirds of countries worldwide have abolished the death penalty in law or in practice, largely due to concerns regarding human rights violations. As U.S. Supreme Court Justice Harry A. Blackmun said, 'The death penalty experiment has failed.'"

"My decision to grant a reprieve to Offender No. 89148 is not out of compassion or sympathy for him or any other inmate sentenced to death," Hickenlooper says in the Executive Order. "The crimes are horrendous and the pain and suffering inflicted are indescribable. I have enormous respect for the jurors who deliberated over Offender No. 89148's case, the decision they rendered, and the amount of reflection they demonstrated in discharging their civic duty."

The order says more than 15 years have passed since that jury convened, "and we now have the benefit of information that exposes an inequitable system."

"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 Executive Order signed today will remain in effect until modified or rescinded by future Executive Order of the Governor. Offender No. 89148, meanwhile, will remain in administrative segregation.

Statement by attorneys Madeline Cohen and Philip Cherner:
"We agree with Governor Hickenlooper's well-reasoned decision to grant Nathan Dunlap a reprieve and indefinitely stay his execution. There has been widespread and diverse support from hundreds of people and organizations in Colorado who support permanently commuting Nathan Dunlap's sentence to life in prison without the possibility of parole.

As the Governor notes in his statement, 'Colorado's system for capital punishment is not flawless.' Faith leaders, civil rights organizations, former judges and prosecutors, academics and many others have expressed serious concerns about Colorado's capital punishment system, which is unfair in its application of the death penalty. Colorado's broken death penalty system reflects racial discrimination, geographic concentration, and is used in an arbitrary manner.

The Governor also recognizes that the death penalty is not a deterrent, and 'is not making our world a safer or better place.' Further, as the Governor explains, 'Colorado is not equipped to carry out a death sentence.'

Given the problems with Colorado's use of capital punishment and the apparent inability of the Colorado Department of Corrections to move forward with a legal execution, Governor Hickenlooper made a fair and correct decision to indefinitely stay Mr. Dunlap's execution."

Nathan Dunlap Executive Order

Continue for a previous post about Nathan Dunlap, focusing on those who supported the clemency petition. Previous post, 9:49 a.m. May 17: The campaign to either save Nathan Dunlap from the death penalty or execute the man convicted of four brutal murders at a Chuck E. Cheese restaurant in 1993 has turned into something of a public-relations competition. As the Arapahoe District Attorney's Office continues to dole out statements from victims and associates who believe he deserves the ultimate punishment, Dunlap's advocates are working to humanize him even as they emphasize broad support for Governor John Hickenlooper to alter his sentence to life in prison without the possibility of parole.

On December 14, 1993, as we've reported, Dunlap entered the restaurant, from which he'd previously been fired, and shot five employees: Margaret Kohlberg, fifty, Sylvia Crowell, nineteen, Ben Grant and Colleen O'Conner, both seventeen, and Bobby Stephens, twenty. Only Stephens survived, and he was very seriously wounded.

Dunlap was captured within hours and convicted in 1996, at which point the jury opted for execution. He's been on death row ever since, and earlier this month, a week was scheduled for the completion of the sentence: August 18-24.

Now, the only thing that will prevent the carrying out of this action is a grant of clemency from Hickenlooper -- and shortly after the date-setting, Dunlap backers and death-penalty foes combined forces to formally ask that the governor do so.

In the weeks since then, the office of Arapahoe County DA George Brauchler has been steadily releasing statements arguing the opposite point. Those represented thus far include a Chuck E. Cheese worker who was supposed to have worked that evening but took the night off to babysit and the mother of Ben Grant, who begs Hickenlooper to "sit back, make no decision, allow the one that twelve people made after listening to all the evidence seventeen years ago stand.

"I wish you could have met my son, listened to all of the things said about him after this act of planned murder, the amount of love that flowed," she added. "I honestly think if (you) had been there, you would have no doubt the decision for death."

The latest person to weigh in? An unnamed juror who hasn't changed his or her mind about the verdict.

"I have lived with this for a long time," the death-penalty-backing juror's statement begins. "My feelings are if one person [Hickenlooper] has the ability to change what a juror declares, then why do we need a jury? The only reason why anybody should be able to overturn what a jury's verdict declares is because of fraud, cheating or some other injustice. As for those three jurors who all of a sudden changed there minds, I doubt it."

Actually, there's plenty of evidence showing that three of those on Dunlap's jury have a new viewpoint on the matter. The trio signed affidavits saying that had they known Dunlap suffered from serious and undiagnosed mental illness at the time of the killings (he only started receiving Lithium treatments in 2006), they wouldn't have voted for death. See one of the affidavits below, along with other documents supporting clemency -- not just a reply to DA Brauchler's arguments in favor of execution, but a letter from the Colorado Criminal Defense Bar and a narrative of Dunlap's abuse-filled upbringing featuring photos like this....

...and this: Madeline Cohen, an assistant federal public defender working on Dunlap's behalf, stresses that such material only scratches the surface of the support for clemency.

Continue for more about the clemency bid for Nathan Dunlap, including photos and documents. "We have more than two dozen letters representing literally hundreds of people," Cohen notes. "There are retired judges who talk about it from their perspectives, including judges who've presided over death-penalty cases and have seen the strain they put on the system from a human and legal perspective. There are former prosecutors, who talk about how ineffective the death penalty is, and many, many faith leaders, who speak from all different faith perspectives about why we shouldn't carry out an execution.

"We also have mental health professionals who focus on Nathan's mental illness as a reason not to execute him, and 75 different academics from six different universities in Colorado: CU-Boulder, CU-Denver, CSU, Northern Colorado, DU and Regis. There's also the Colorado Criminal Defense Bar, the ACLU -- so many different voices that say it is wrong to execute Nathan Dunlap."

Cohen stresses that "none of these people minimize his crime. Every single one of us -- including his lawyers and Nathan himself -- all of his supporters absolutely acknowledge that he committed a terrible crime and he will continue to be punished for it. He will spend the rest of his life in prison no matter what, and he's never getting out. The question is, does the state kill him or does he live out the rest of his days before he dies a natural death in prison."

The latter may sound like Dunlap is getting off easily in comparison with execution, but Cohen disputes that interpretation.

"The conditions Nathan lives in are extreme," she says. "He's in a cell by himself that's the size of two king-size mattresses, and he gets one hour a day to exercise in a room that's about the same size as his cell. It's got a pull-up bar and the only fresh air and sunshine he gets is through a grate over the room."

In addition, "he's escorted everywhere with five-point restraints, and he never gets to touch anyone, other than getting to shake hands with his lawyers through a small pass-through in the visiting glass. And he's not open for visits from non-lawyers. It is not a cushy existence, it's not hanging out in the yard playing poker and living the good life."

When asked about the steady stream of execution calls coming from Brauchler's office, Cohen defers, saying, "I don't really feel comfortable speaking to that. I think they feel strongly that's the position they want to take and they're pursuing it in a way they feel is appropriate. I don't want to get into a pissing contest."

There is one thing to which she takes exception, though.

Continue for more about Nathan Dunlap's clemency bid, including another photo and documents. DA Brauchler's "message has been, 'Governor, if you grant clemency,you're overruling the judge and the jury.' That's not an accurate reflection of what clemency means under the law, and I think it's a distortion of the governor's role that should be debunked.

"The governor has, since the beginning of the State of Colorado, had the power to commute and pardon. That power was also given to the President by the Founding Fathers, and I believe every state in the country has some form of pardon and commutation power. That power exists so that the executive can look at a case and a person in a more holistic sense. They're not bound by the rules of evidence and not limited to time the way we were in 1996, when nobody had investigated Nathan Dunlap's mental illness. They didn't have twenty years of his behavior in prison to see he's not dangerous to anyone. And they didn't have the historical information about the death penalty or the enormous amount of evidence that shows it has been meted out in a racial fashion."

As examples, she says, "Colorado has a 100 percent black death row, and people who kill whites, like Nathan Dunlap, are more than four times more likely to get a death sentence than they are if they kill blacks. The governor can take all this information into account and decide what's the right thing to do as a matter of policy, justice and humanity. That's his role, and it's written into the Colorado Constitution."

As for the statements of those directly affected by the crime who want Dunlap put to death, Cohen emphasizes that "I don't want to take away from the victims' and family members' right to feel everything they are feeling. That's not my place and I would not tell them how to feel. They've been through a terrible tragedy and we recognize that.

"Everyone needs closure, and my hope is that the end of this case, even if the end is a life sentence rather than an execution, will bring closure to everyone involved."

Look below to see the reply to DA Brauchler's clemency-petition response, the affidavit of one juror who no longer thinks death is the appropriate penalty, a letter from the Colorado Criminal Defense Bar and a narrative about Dunlap's upbringing, abuse and mental-health issues.

Reply in Support of Clemency Petition

Affidavit of Juror C

Colorado Criminal Defense Bar Letter

Nathan Dunlap Photos and Narrative by Michael_Lee_Roberts

More from our Follow That Story archive: "Nathan Dunlap: Mom of victim Ben Grant latest to call for killer to die."

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
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