Hickenlooper’s death penalty decision was personal…

But ramifications of life and death matter quickly became political
The Colorado Statesman

Gov. John Hickenlooper’s announcement Wednesday of an executive order granting convicted killer Nathan Dunlap a “temporary reprieve” from execution has set off a firestorm of political activity that has some Democrats encouraged and most Republicans chomping at the bit to oust the middle-of-the-road Democrat.

Standing inside the Capitol — surrounded by throngs of TV news cameras and observers — Hickenlooper delivered the eagerly awaited decision clarifying Dunlap’s fate. He would not speak the name of the man who was convicted of killing four people in an Aurora Chuck E. Cheese’s restaurant in 1993. Instead, Hickenlooper referred to Dunlap as Offender No. 89148.

“Our system of capital punishment is imperfect and there’s an inherent inequity that at such a level of punishment it really does demand perfection…” the governor explained to the dozens of observers watching in the west Capitol rotunda. “It is hard to see the objective measure by which that decision is made.”

Gov. John Hickenlooper on Wednesday at the Capitol announced that he is granting a “temporary reprieve” in the execution of killer Nathan Dunlap. The decision shocked many, while offering hope to others.
Photo by Peter MarcusThe Colorado Statesman

Earlier this month, Arapahoe County District Judge William Sylvester had set the week of Aug. 18 for Dunlap’s death by lethal injection. Dunlap’s attorneys then petitioned the governor to grant clemency and commute his death sentence to life in prison without parole. They argued that Dunlap was abused as a child and in the midst of a bipolar episode when he opened fire as a 19-year-old.

One adult and three teenagers died in the rampage. Ben Grant, 17, Sylvia Crowell, 19, Colleen O’Connor, 17, and Margaret Kohlberg, 50, died during the shooting spree.

Even before the execution date was set, Hickenlooper and his staff knew that a decision would be necessary.

“Obviously this has weighed heavily on me for over a year now and it was obvious that inaction wasn’t an option,” Hickenlooper quietly addressed his audience.

“Part of the question was around this case, but also around the death penalty,” he continued. “Is it just and moral? We make a decision to take this person’s life. Is it a benefit to the world?”

Hickenlooper said it was a decision like no other he has had to make as chief executive of the state. He spoke of how he contemplated the decision, which included speaking with the families of victims, as well as faith leaders.

The governor cited religion during his remarks, also mentioning that he sought the advise of individuals during a recent trip to Israel. Several local clergy members attended the announcement. But Hickenlooper said religion was not the dominant issue for him.

“It’s not just about a religious approach, or the fact that the entire New Testament is dedicated to redemption and that only god can make that decision to take a life… That moral side is equally balanced with the questions about justice,” commented Hickenlooper.

“I am deeply respectful of the suffering and the loss that occurs, but it’s hard to see from the systemwide perspective the benefit of a capital punishment system that results in 15 to 20 years of legal process and parole and creates and extends emotional hardship for those families,” he continued.

Hickenlooper said he also spoke with other governors about their decisions. He pointed out that those governors said signing an execution order was the only decision they ever fully regretted.

But perhaps the most difficult factor for Hickenlooper to consider was the impact to the victims’ families: “Largely disappointment,” he described their reactions.

“The majority of the families really did feel that they would get closure from an execution,” Hickenlooper continued. “There were some that expressed gratitude, and even some form of relief. But the majority were disappointed.”

He said he spoke with families just prior to making the announcement. During the more than 20-minute call, families of victims could be heard shouting at Hickenlooper, according to the Denver Post.

Hope to death penalty opponents

Hickenlooper’s executive order was not just about personal beliefs and policy. It was also political.

His role in the debate over the death penalty in Colorado gained momentum earlier this year when the legislature introduced a bill sponsored by Reps. Claire Levy, D-Boulder, and Jovan Melton, D-Aurora, which would have repealed capital punishment. But the governor interjected, threatening to veto the legislation.

He said at the time that he believed the measure was coming too soon without enough stakeholder input. Observers had extrapolated from it that the governor was still a supporter of the death penalty. Many assumed that he would follow through by signing Dunlap’s execution order.

But that certainly was not the case. Rumors immediately began circulating that Hickenlooper caved to special interests and his own staff. Conservative blogs reported that the governor’s chief of staff, Roxanne White, threatened to leave if he went through with the execution.

On both sides of the aisle, people were stunned by Hickenlooper’s executive order. For Democrats who would like to see the death penalty repealed, the governor’s decision opens the door to such a possibility next year.

“I was really concerned when he discouraged us from proceeding with the bill that that might mean he would allow Dunlap’s execution to proceed,” said Levy, who had heard about the governor’s temporary reprieve while visiting her daughter in New York City. “I’m very relieved that’s not happening.

“I hope that the governor’s action is just the beginning of a conversation on whether the death penalty has a future in Colorado,” Levy continued. “I hope that he will be open to revisiting that decision and perhaps commuting his sentence from death to life without parole.”

The executive order grants a “temporary reprieve,” meaning Hickenlooper could change the decision. A future governor could also change the order. In the meantime, Hickenlooper said it is very unlikely that he will waver.

“It’s hard to imagine that I could…” he said of issuing an execution order. “I’ve examined pretty much every scenario.”

For David Sirota, a progressive local personality who has often criticized the governor, Hickenlooper finally acted courageously.

“It is a far more significant and courageous move because it says, ‘Hey, there is not some technical problem with this one case.’ It says that this entire system needs to be fundamentally re-evaluated,” opined Sirota.

“John Hickenlooper has said he now has a problem with the entire concept of the death penalty, and that is a gutsy move,” Sirota continued.

But fellow Democrat Rep. Rhonda Fields of Aurora was saddened by the governor’s executive order. Fields lost her son, Javad Marshall-Fields, in 2005 after he was murdered along with his fiancée, Vivian Wolfe, before Marshall-Fields could testify against a man accused of murdering his friend.

Sir Mario Owens and Robert Ray are on death row after they were convicted in the murder of Marshall-Fields and Wolfe. In addition to Dunlap, they make up the three men sitting on death row in Colorado.

Dunlap would have been Colorado’s first execution in 15 years. The last time was in 1997 when convicted rapist and murdered Gary Lee Davis was sentenced to death by lethal injection.

Fields had fought against repealing the death penalty during the legislative session. She says the governor’s executive order certainly opens the door for another attempt next year, though she believes that would have happened with or without input from Hickenlooper.

Above all, however, Fields is worried about the message Hickenlooper sent to victims’ families.

“I’m really somewhat stunned by it,” she said of the governor’s order. “And it saddens me… Because murder is real, and I know what that’s like to lose someone, and then they go through the judiciary process, it goes all the way up to the Supreme Court and you think you have resolution, but you really don’t as it relates to the crime.”

An emboldened GOP

Another political factor to consider is the impact the decision could have on Hickenlooper’s run for re-election in 2014. Republicans have been seizing every opportunity they can to attack the popular governor, and Wednesday proved to be no different.

Because Hickenlooper only ordered a “temporary reprieve,” Republicans were able to take their messaging away from a discussion on the death penalty and turn it towards Hickenlooper’s leadership. They suggested that the governor kicked the can down the road to his successor, alleging that he lacked the strength to make a difficult and potentially unpopular decision.

The Colorado Republican Party launched a new online ad on Thursday called “Justice Denied.” It includes 9-1-1 calls and interviews with the lone survivor of the shooting spree.

“It is clear that Hickenlooper’s cowardly decision was not about ensuring justice is done, but was all about his inability to make the difficult decisions required as governor,” declared state GOP Chairman Ryan Call in the ad.

Sen. Greg Brophy, R-Wray, who is considering challenging Hickenlooper, immediately turned to the cameras and started putting on a microphone to respond to the executive order.

“This is a disappointing decision because it lacked the courage of his convictions,” remarked Brophy. “He clearly wanted to grant clemency, but doesn’t have enough courage to do that, so he punts on this decision leaving it potentially up to the next administration to do what he didn’t have the guts to do…

“What a gutless way to go,” Brophy concluded.

Former Congressman Tom Tancredo — who announced Thursday on the 630AM-KHOW radio’s “The Peter Boyles Show” that he is officially running for governor on the Republican ticket — said the Dunlap decision was the final straw.

“[Dunlap] was certainly the thing that sent me over the cliff…” Tancredo told Boyles.

“We’ve got a situation where the Democrats control the House, the Senate and of course the governor’s seat — and as a result, a lot of whacky things have happened and will happen in the next year,” he continued. “There has got to be a change here. You can’t have one party rule…”

House Minority Leader Mark Waller, R-Colorado Springs, also entered the discussion. Waller is contemplating a run for attorney general in 2014.

“It’s obviously incredibly disappointing,” he said shortly after Hickenlooper announced the executive order. “Not only is he not making a decision, this is effectively going to re-victimize the families, at least while he’s in office, because there’s going to be no resolution to this case for them.

“They’ve been waiting almost 20 years for justice in this case and to have the governor say, ‘I’m not going to make a decision one way or the other’ is incredibly inappropriate,” Waller continued.

Offering perhaps the most riveting criticism from a Republican was Arapahoe County District Attorney George Brauchler, an outspoken prosecutor whose predecessor Jim Peters prosecuted Dunlap in 1996.

Brauchler said Hickenlooper’s order throws into flux the entire capital punishment system in Colorado. His office is seeking the death penalty against Edward Montour, who is facing retrial in the killing of a prison guard, and accused Aurora movie theater mass shooter James Holmes.

Brauchler would not comment on those cases specifically, but he raised serious concerns about how Hickenlooper’s order might affect the tone of such cases in the future.

“It does change the dynamic of how you would speak to any victims of potential death penalty cases because in addition to adding in the uncertainty of conviction, the uncertainty of a death sentence, the uncertainty of what would happen in the appellate process and how long that would last, now we’ll get the question of, ‘Well what can you do if some governor 20 years from now decides he or she just can’t muster the strength to make a decision about it?’” opined Brauchler.

Hickenlooper emphatically stated that he did in fact make a decision: “The next governor doesn’t have to do anything and this inmate stays in the same situation ongoing,” explained the governor. “He can change that decision, I have not ruled out that possibility; I have not taken that right away from him. But I’m not leaving a decision for him. I’ve made a decision.”

But standing in front of cameras and reporters outside the Capitol, Brauchler confessed that he is “confused, frustrated and disappointed” by what he considers to be a lack of decision by Hickenlooper.

“I thought I’d be speaking to you today about a decision that the governor made, but candidly, there was no decision made today,” exclaimed Brauchler. “The governor shrugged. This is a question that has been hanging our there since Nathan Dunlap pulled the trigger as many times as he did… Listening to the governor’s remarks… disappointed isn’t strong enough.

“This is not justice…” he continued. “There’s going to be one person, one person in this system who goes to bed with a smile on his face tonight and that’s Nathan Dunlap, and he’s got one person to thank for that smile, and that’s Gov. John Hickenlooper, because he could not make a decision.”

Republican Attorney General John Suthers’ office came prepared with three different statements since they did not know which direction the governor would go. Deputy Attorney General Cynthia Coffman read the statement for Suthers since he was out of the country. It was a blistering interpretation of Hickenlooper’s order.

“I have an excellent working relationship with the governor and I respect him very much. Yet it’s been apparent to me that issues of crime and punishment are not his strength,” opined Suthers. “John Hickenlooper is an optimist. He has proven to be uncomfortable confronting the perpetrators of evil in our society.

“Gov. Hickenlooper simply cannot cope with the task of carrying out the execution of Nathan Dunlap or exercising his constitutional mandate…” added Suthers. “I believe the governor’s decision does not stem from anything but his personal discomfort about the death penalty. I also believe that the governor should have been much more up front with the voters when he ran for office if he couldn’t carry out the death penalty.”