Wednesday, August 22, 2012

Is The Colorado Death Penalty Unconstitutional?

Where do you fall on the topic of the death penalty?
Two professors at the University of Denver Law School recently published a study making the argument that the death penalty in Colorado is unconstitutional. They argued the following:

1. The US Supreme Court has declared the death penalty is only constitutional if it is used as punishment in the most rare, heinous murders. Plain old first degree murder is not enough--the death penalty would violate a person's Eighth Amendment Rights (cruel and unusual punishment) in all but the most rare cases.

2. Colorado currently has 17 "aggravating factors" that could take a run-of-the-mill murder and make it death penalty eligible.

3. Colorado Court records on murder cases from the last decade indicate about 90% of murders in Colorado qualify for the death penalty.

4. If 90% of murders qualify for the death penalty, it makes no logical sense that only the most heinous of murders would be eligible for the death penalty. Thus, it is unconstitutional to have death penalty laws that apply to the vast majority of murders in the state.

5. The authors go on to make one other argument: Of the cases in the past decade that were eligible for the death penalty, prosecutors actually pursued the death penalty in only 1% of those cases. The authors argue this makes facing the death penalty in Colorado nearly random, which also adds to the unconstitutional nature of the law.

The professors wrote this report at the behest of a criminal defense attorney who is arguing on behalf of his client, an accused murderer. He is attempting to get the District Court Judge to strike down the death penalty in Colorado, declaring it unconstitutional. Regardless of how the judge rules on the case, it is likely that the US Supreme Court will eventually hear the case and make a decision about Colorado's law, which could have far-reaching implications for the other 49 states in the US.

In the short-term, the District Court's ruling may affect whether prosecutors in Arapahoe County, Colorado seek the death penalty for James Holmes, the man accused of murdering 12 people in Aurora last month at the Batman premier.

Here is an interesting link to a news story about this issue produced by Colorado Public Radio.

Thanks for reading-- Max Wachtel, Ph.D.


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