Colorado Death Penalty Law Unconstitutional

The Denver Post

Colorado prosecutors could seek the death penalty in the vast majority of first-degree murder cases in the state but instead pursue it so infrequently that the state's capital-punishment system is unconstitutionally arbitrary, three law professors argue in a new study.
The conclusion could be earth-shaking for the Colorado criminal-justice system, at a time when prosecutors in Arapahoe County are deciding whether to pursue the death penalty against Aurora shooting suspect James Eagan Holmes. It could have more direct implications in the looming death-penalty sentencing hearing of Edward Montour — whose defense team initiated the study and included it in a motion.
"This is a groundbreaking study," said David Lane, one of Montour's defense attorneys.
Colorado law says a person must be convicted of first-degree murder, the most serious murder charge, and also meet an extra aggravating factor to be eligible for a death sentence. To conduct the study, the professors — in a first-of-its-kind effort in Colorado — assembled a list of all homicide cases between 1999 and 2010, then identified which of those cases were first-degree murder cases.
The study finds that 92 percent of the state's 544 first-degree murder cases in that time span contained at least one of the aggravating factors that make the case eligible for the death penalty. But prosecutors filed notices of intent to seek the death penalty in only 15 murder cases during that span and pursued the death penalty at trial in only five of those cases — a 1 percent rate among death-eligible cases.
"Under the Colorado capital sentencing system," the authors write in their report, "many defendants are eligible but almost none are actually sentenced to death. Because Colorado's aggravating factors so rarely result in actual death sentences, their use in any given case is a violation of the Eighth Amendment."
The Eighth Amendment prohibits cruel and unusual punishment.
The study was conducted by University of Denver law professors Justin Marceau and Sam Kamin and Rowan University professor Wanda Foglia with funds provided by Montour's defense team.
Montour, who pleaded guilty to killing Colorado Department of Corrections Officer Eric Autobee, is facing the possibility of a death-penalty sentencing hearing as early as the end of this year.
Montour's team has now included the new study into a motion asking a judge to cancel Montour's sentencing hearing and find the Colorado death- penalty law unconstitutional.
Prosecutors from the 18th Judicial District attorney's office, which is handling Montour's case, have not yet had a chance to respond to the motion.
"A preliminary report has been filed by the defense regarding a motion that is presently pending before the Montour court," Chief Deputy District Attorney John Topolnicki said in a statement. "The merits of the defense motion are yet to be decided and are being contested by the prosecution."
John Ingold: 303-954-1068, jingold@denverpost.c

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