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Race and Place Matter in Colorado Death Penalty, New Study Finds

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A new study concludes that race and geography play a significant role in whether a criminal defendant faces the death penalty in Colorado, providing hard-numbers support to the objections about bias raised by Governor John Hickenlooper two years ago when he granted a reprieve from execution for convicted killer Nathan Dunlap. And some of those numbers also raise uncomfortable questions about the discretionary powers of prosecutors — right at the time two district attorneys are seeking the death penalty in high-profile, multiple-murder cases in Denver and Arapahoe County.

The study, authored by three University of Denver professors and a practicing attorney, looks at the 22 death-penalty prosecutions filed in Colorado over a twelve-year period, from 1999 through 2010. It finds a lopsided representation of cases involving minority defendants, as well as a disproportionate number of cases from the Eighteenth Judicial District, which includes Arapahoe, Douglas and Lincoln counties. If you count only successful DP prosecutions, the tilt is even more dramatic: All three of the current residents of the state's death row are African Americans who attended Aurora's Overland High School and were prosecuted in Arapahoe County. (Current DP candidates James Holmes and Dexter Lewis — one white, one black — weren't part of the study group.) 

Colorado's death penalty is, of course, rarely used. There's only been one execution in the state since the 1960s, and that inmate, Gary Davis, practically volunteered for the job. Prosecutors maintain that they reserve the penalty for only the most heinous of crimes. But what's startling about the DU study is its analysis of which particular murders get the DP treatment. By comparing all cases in which the defendants were statutorily eligible for death with those in which prosecutors actually sought execution, some undeniable disparities emerged. For one thing, your chances of facing the death penalty for a truly heinous crime are nearly four times higher in the 18th Judicial District than they are in the rest of the state. On top of that, state prosecutors are five times more likely to seek the death penalty against minority defendants than they are against whites who commit similar crimes. 

A chart accompanying the study provides the details: 

When you consider the combined effect of race and geographical location, you get a double whammy:

As the chart above indicates, only two of the death-penalty defendants since 1999 have been white. The Holmes case does change the numbers slightly — but not enough to cancel out what appears to be a multi-year pattern of bias. 

"Colorado’s system is...based on a capital statute that vests extraordinary discretion in the hands of prosecutors," the study's authors note. "We now know that this essentially unfettered discretion has been exercised in ways that should trouble anyone interested in the even-handed application of justice. We have demonstrated that the location of a murder and the color of the killer’s skin have far more to do with whether the death penalty is sought than whether a defendant’s crime is among the worst of the worst, as measured by examining whether the defendant has killed multiple victims."

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