Prosecutors are weighing whether the Aurora theatre shooting suspect will face the death penalty. But there’s a looming problem: Colorado’s death penalty may be unconstitutional. That’s according to a study by a legal scholars at the University of Denver. CPR’s Ben Markus explains.
Reporter Ben Markus: To face the death penalty, simple premeditated murder is not enough. There has to be something extra -- something that makes the crime particularly vile. In legal terms it’s called an aggravating factor.
Sam Kamin: There are, as I said, 17 of them, they range from killing multiple people in one episode, killing multiple people in repeated episodes...
Reporter: Sam Kamin is a law professor at DU.
Kamin:…the killing is done in a particularly cruel, heinous way. Things like that.
Reporter: Colorado has added a lot of these aggravating factors over the years. So many, in fact, that in the decades-worth of first degree murders Kamin studied, more than 90-percent would have qualified for the death penalty. Study co-author, DU Law Professor Justin Marceau, says that’s not what the US Supreme Court had in mind when it upheld the death penalty back in the ‘70’s.
Justin Marceau: It was constitutional in limited circumstances, it was constitutional when we were able to sort out the worst of the worst when we're able to figure out that not all murders could be sentenced to death, but just the ones that are really bad.
Reporter: Not only that, but the study found Colorado prosecutors only pursued the death penalty, all the way to sentencing, in 1-percent of cases. Marceau says the US Supreme Court has ruled that’s also unconstitutional.
Marceau: And so it was this idea that we don’t trust a system that is as arbitrary as a lightning strike. You never know when it’s going to hit.
Reporter: Defense attorney David Lane agrees. He commissioned the study on behalf of a client he’s trying to keep off death row.
David Lane: This is to stop a death penalty trial that is currently scheduled to go in February for Edward Montour. We have said judge: ‘you’ve got to strike the death penalty because it’s unconstitutional."
Reporter: Montour is on death row for killing a prison guard while serving a life sentence for killing his infant daughter. Not everyone is buying the study’s conclusions.
Craig Silverman: I thought it was a pretty ridiculous attack by people who are opposed to capital punishment.
Reporter: Craig Silverman was Chief Deputy District Attorney in Denver for 16 years.
Silverman: Their argument is: you should have sought the death penalty more. Look at all these people who escaped, and therefore it’s not fair to the clients of ours that you went after.
Reporter: He says if anything this study proves that prosecutors have shown great discretion in pursuing death penalty cases. They consult the victim’s families and consider the huge price tag of multiple appeals … as well as the nature of the crime. He says take Sir Mario Owens for instance, one of Colorado’s three death row inmates. He killed an eyewitness set to testify against him in another murder trial.
Silverman: You can’t tolerate that in a civilized society, that is worse than other murders -- it’s a crime against the judicial system.
Reporter: Attorney David Lane doesn’t deny that’s a heinous crime -- the problem is a lack of consistency.
Lane: I can point to 50 heinous and atrocious murders where they didn’t seek the death penalty.
Reporter: So how did we get here? Where nearly all Colorado murders qualify for the death penalty? Lane says over the years as heinous crimes surfaced lawmakers simply added more and more instances where the death penalty could be sought. So one fix for the system would be if the legislature voted to strike some of Colorado’s 17 aggravating factors. For his part, Lane is not offering suggestions.
Lane: So I’m not here to fix a broken system, and teach the legislature how to go about fixing their death machine, so you’re asking the wrong guy that question.
Reporter: If the judge in Montour’s case rules the death penalty is unconstitutional, then other death row inmates could also have their sentences reduced to life without parole. But either way, Lane thinks the US Supreme Court will eventually decide the fate of Colorado’s death penalty.