Overview of Capital Punishment Under State and Federal Law

Overview of Capital Punishment Under State and Federal Law 1

Colorado Legislative Council Staff

Interested Persons Memorandum

Overview of Capital Punishment Under State and

Federal Law

Conrad Imel, Research Analyst, (303) 866-2756

July 26, 2017

This memorandum provides

information concerning the use of

capital punishment in Colorado and

across the country. The

memorandum provides a brief history

of Colorado’s death penalty scheme

and information on recent U.S.

Supreme Court decisions concerning

the constitutionality of the death

penalty. It also explains the current

death penalty scheme in Colorado,

including procedures used in

sentencing and required review by

trial courts and the Colorado Supreme

Court. Lastly, this memorandum

provides an overview of capital

punishment in other states and federal

death penalty laws.

The death penalty has been a

sentencing option in the United States

since the country’s founding: the first

Congress made treason, piracy,

murder within federal enclaves, as

well as forgery and counterfeiting of federal certificates and public securities, punishable by

death.

Even prior to achieving independence, every colony punished at least some crimes by

execution — laws that were carried into the new nation. The first state to abolish the death

penalty was Michigan, which did so in 1846 for all crimes, except treason. Near the beginning

of the twentieth century, many states abolished the death penalty, though most reinstated it

later. Today, 31 states authorize the use of capital punishment; the federal government has

always had a death penalty.

Peak execution rates in the U.S. occurred during the 1930s, with 199 people executed in

1935. In the modern era, executions peaked in 1999, when there were 98 executions, the most

of any year since 1976. Since then, the number of executions nationwide has decreased almost

every year; in 2016 there were a total of 20 executions, the fewest since 1991. Similarly, there

were only 20 death sentences issued in 2016, the fewest in more than four decades. Recent

concerns over lethal injection drug availability have caused some states to increase the number

of executions carried out before such drugs expire.

Charles Doyle, Congressional Research Service, Federal Capital Offenses, Nov. 17, 2011. This interested persons memorandum

uses the terms “death penalty” and “capital punishment” interchangeably.

Table of Contents

Section 1: History of the Death Penalty in Colorado 2

Section 2: Constitutionality of Capital Punishment 3

Section 3: Death Penalty in Colorado 5

Trial and Sentencing

Review of Death Sentences

Enforcement of Capital Punishment

Colorado Legislation concerning Capital Punishment

Section 4: Capital Punishment in Other Jurisdictions 10

Capital Punishment in Other States

Federal Capital Offenses

Appendix A – Aggravating Factors Under

Section 18-1.3-1201 (5), C.R.S. 13

Appendix B – Mitigating Factors Under

Section 18-1.3-1201 (4), C.R.S. 14

Appendix C – Colorado Death Penalty Legislation,

1976 to 2017 15

Appendix D – Methods of Execution, by Jurisdiction 16

Appendix E – Executions by State, 1977 through

July 7, 2017 17

Overview of Capital Punishment Under State and Federal Law 2

Section 1: History of the Death Penalty in Colorado

Colorado’s experience with capital punishment began before statehood. In 1859, John

Stoefel was executed as punishment for his commission of the first recorded murder in the new

settlement of Denver, then a part of the Kansas Territory.

After the Colorado Territory was

formed, the first territorial legislature enacted the legislation authorizing the death penalty.

Colorado was granted statehood in 1876, and its First General Assembly enacted laws

authorizing the use of capital punishment against those convicted of murder.

At this time, the

death penalty was carried out by counties as a public hanging. In 1883, the General Assembly

first introduced degrees of murder, with death serving as punishment for first degree murder.

Six years later, executions were moved away from public view in various counties, to a single

private location inside the state penitentiary in Cañon City.

In 1896, Colorado executed three

codefendants for the murder of a Trinidad police officer. These were the final executions prior

to Colorado’s repeal of capital punishment.

Abolition of capital punishment, 1897-1901, and reinstatement. Twice during the 1890s,

the state Senate approved of measures to repeal the death penalty in Colorado that were

defeated in the House of Representatives. After those failed efforts, capital punishment was

finally abolished in 1897.

Four years later, in 1901, the death penalty was reinstated as a

punishment, after the General Assembly passed a bill, and the Governor allowed it to become

law without his signature.

Between reinstatement and 1933, executions in Colorado were

carried out by hanging. Beginning in 1934, Colorado utilized asphyxiation, via gas chamber, to

carry out death sentences.

There were many efforts in the 1950s and 1960s to repeal Colorado’s death penalty. For

example, bills to affect such change were introduced and defeated in 1955, 1956, 1959, and

1961. In 1964, two bills, one a permanent repeal and another that was a five-year moratorium

on capital punishment, were similarly defeated. In 1965, a bill was adopted that referred to

Colorado voters a ballot question to permanently repeal the capital punishment. After passage

of the bill, Governor John Love announced a moratorium on the death penalty until citizens

voted on the measure. In the 1966 election, the referendum failed by a wide margin, and the

Governor lifted the moratorium on executions.

The final execution by asphyxiation in Colorado took place on June 2, 1967, when an

offender was executed for committing murder. That would turn out to be the final execution in

Colorado for 30 years, and because of federal court decisions, the last one in the United States

for nearly a decade.

Radelet, Michael, Capital Punishment in Colorado: 1859-1972, 74 U. Colo. L. Rev. 885, 885 (2003).

1861 Colo. Terr. Sess. Laws 290, 293.

Colo. Gen. Laws. Ch. XXVI, §§ 20 and 268 (1877).

1883 Colo. Sess. Laws 150. First degree murder included all murder perpetrated “by means of willful, deliberate and premeditated

killing; or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem or burglary; or

perpetrated from a deliberate and premeditated design, unlawfully and maliciously to effect the death of any human being other than

him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of

human life,” all other murder was murder in the second degree, which was punishable by imprisonment for 10 years to life.

1889 Colo. Sess. Laws 118.

Radelet, Capital Punishment in Colorado, at 907.

Ch. 35, 1897 Colo. Sess. Laws 135.

Ch. 64, 1901 Colo. Sess. Laws 153-54. Radelet, Capital Punishment in Colorado, at 912.

Ch. 61, 1933 Colo. Sess. Laws, 420-22

Radelet, Capital Punishment in Colorado, at 923-30.

Radelet, Capital Punishment in Colorado, at 922.

Overview of Capital Punishment Under State and Federal Law 3

Section 2: Constitutionality of Capital Punishment

The U.S. Supreme Court addressed the constitutionality of capital punishment in 1972. That

year, in Furman v. Georgia, the Court held that the manner in which the death penalty was

being applied in the three specific cases before it violated the Eighth Amendment to the U.S.

Constitution.

The Court’s unsigned per curium opinion provided no reasoning, though each of

the nine justices wrote separate concurring or dissenting opinions.

States generally took two approaches in response

to Furman. The first approach was to remove arbitrary

application of the death penalty by making it mandatory

in certain cases. The Supreme Court rejected this

approach, holding that mandatory death sentence

statutes violate the Eighth and Fourteenth

Amendments.

The second approach was to make the

punishment apply in a more narrow set of cases, and

provide rules that would guide jury discretion

determining whether to sentence a defendant to death.

Colorado took this second approach, rewriting its law to

require the finding of at least one aggravating factor in

order to impose capital punishment, and providing a list

of mitigating factors to be considered when determining

an offender’s sentence. Under that Colorado law, a

finding of any mitigating factor would prohibit a death

sentence.

In 1976’s Gregg v. Georgia, the U.S. Supreme

Court approved of the second approach, upholding as

constitutional Georgia’s capital punishment scheme

that it described as focusing the jury’s attention on the

specific crime committed and particular defendant. The

Court also approved of the Georgia law’s provisions

that “channeled” the jury’s discretion by requiring it to

find an aggravating offense as a condition of

sentencing a person to death and permitting jurors to

consider mitigating circumstances; and required review

by the Georgia Supreme Court.

Since Gregg, the federal government and the states have been permitted, under the U.S.

Constitution, to enact capital punishment schemes that conform to the guidance offered by the

U.S. Supreme Court. Legal challenges continue to be brought concerning a number of issues

relating to the imposition of capital punishment. The following sections discuss court decisions

and Colorado law concerning how certain judgments relating to death sentencing are made,

who may be sentenced to death, and the methods of execution that may be used.

Court decisions and Colorado law concerning determining facts that result in capital

punishment. Until 1995, Colorado law required a jury to perform sentencing in death penalty

cases, unless there was no jury, in which case a judge could impose a death sentence. In

1995, the law was amended to have a three-judge panel make sentencing determinations. The

Furman v. Georgia, 408 U.S. 238 (1972). As it is relevant to death penalty cases, the Eighth Amendment prohibits the infliction of

cruel and unusual punishment.

Woodson v. North Carolina, 428 U.S. 280 (1976).

Ch. 52, 1974 Colo. Sess. Laws 240. The list of mitigating factors includes that the defendant is a juvenile or that his or her

capacity to appreciate the wrongfulness of his or her conduct or conform to the law was significantly impaired.

Gregg v. Georgia, 428 U.S. 153, 206-07 (1976).

Summary of Capital Punishment

in the United States, 1967-77

1967: Colorado executes final

prisoner in the U.S. prior to the

decision by the U.S. Supreme

Court invalidating the practice.

1972: In Furman v. Georgia, the

Court finds the death penalty

unconstitutional as applied to

the three cases before it,

effectively ending the practice

nationwide.

1972-76: States enact new

capital sentencing schemes in

an effort to comport with the

U.S. Constitution.

1976: The Court approves of

Georgia’s capital sentencing

scheme in Gregg v. Georgia.

1977: Executions resume in the

United States when Utah puts

an offender to death by firing

squad.

Overview of Capital Punishment Under State and Federal Law 4

law required the panel of judges to reach a unanimous verdict on sentencing; otherwise, the

court was required to sentence the defendant to life in prison.

This was Colorado law at the

time of the U.S. Supreme Court’s 2002 decision in Ring v. Arizona, in which the Court ruled that

the Sixth Amendment to the U.S. Constitution requires that aggravating circumstances

necessary for imposition of the death penalty be found by a jury, not a judge.

This ruling

prompted states, including Colorado, to change their laws to require that a jury make sentencing

decisions in death penalty cases.

Following the Ring decision, Colorado Governor Bill Owens called a special legislative

session.

The General Assembly convened on July 8, 2002, and amended Colorado law to

again require the trial jury to perform sentencing.

Under this law, when the jury cannot reach a

unanimous sentencing decision, the court is required to sentence the defendant to life in prison.

This remains current Colorado law.

In 2016, the Court reaffirmed Ring, and overturned Florida’s death penalty sentencing

scheme, which required the judge alone to find the existence of an aggravating circumstance

necessary to impose a death penalty.

Court decisions and Colorado law concerning minors and persons with mental

disabilities. In addition to cases involving death penalty sentencing procedures, the

U.S. Supreme Court also hears cases that consider the application of the death penalty. In

2005, the Court held that the U.S. Constitution prohibits the execution of offenders who were

sentenced to death for a crime committed while the offender was under the age of 18.

2002, the Court held that the U.S. Constitution restricts states’ power to sentence an

intellectually disabled offender to death.

Under current Colorado law, an offender convicted as an adult of a class 1 felony that was

committed while the offender was a juvenile, or an offender convicted of a class 1 felony who is

determined to be “mentally retarded,” is not subject to the death penalty, and is instead

sentenced to life imprisonment with the possibility of parole after 40 years.

Recent issues concerning lethal injection. Each jurisdiction that permits capital

punishment, including Colorado, uses lethal injection as its primary method of carrying out the

death penalty.

The U.S. Supreme Court has heard challenges to the procedures used for

lethal injection. In 2008, the Court upheld the use of lethal injection as a means of execution in

Baze v. Rees.

In Baze, the Court specifically upheld Kentucky’s use of lethal injection against

claims that the procedure could cause severe pain to the executed offender if administered

improperly. The Court found that the first drug in a three-drug combination used for injection,

sodium thiopental, was sufficient to mitigate the pain suffered by the offender.

Section 16-11-103 (2)(d), C.R.S. (1995).

Ring v. Arizona, 536 U.S. 584 (2002).

Channel 7, “Special Session Set for Death Penalty, Fires,” June 27, 2002, http://www.thedenverchannel.com/news/special-

session-set-for-death-penalty-fires, retrieved February 21, 2017.

During the special session, the General Assembly enacted House Bill 02S-1005, which amended Section 16-11-103 (2)(d), C.R.S.

(2001), effective July 12, 2002. On October 1, 2002, that amended section was relocated to Section 18-1.3-1201 (2)(d), C.R.S.

(2002) in accordance with a bill passed during the 2002 regular session. Section 12 of HB 02S-1005 stated the General Assembly’s

intent that there be no hiatus in the imposition of the death penalty as a result of the decision in Ring v. Arizona.

Hurst v. Florida, 136 S.Ct. 616 (2016). Colorado law permits a defendant to waive the right to a jury and have guilt and sentencing

decisions made by a judge. These provisions have not been reviewed by a court in light of the U.S. Supreme Court’s Hurst

decision.

Roper v. Simmons, 543 U.S. 551, 578 (2005).

Atkins v. Virginia, 536, U.S. 304, 321 (2002), internal quotations omitted. A later case, Hall v. Florida, 134 S. Ct. 1986 (2014),

explored the constitutionality of Florida’s method to determine when an offender should be considered intellectually disabled.

Section 18-1.3-401 (4)(b), C.R.S. (juveniles); Section 18-1.3-1103, C.R.S. (“mentally retarded” defendants).

Information on state and federal methods of execution is available in Appendix D. Colorado adopted lethal injection as the means

for execution in 1988.

Baze v. Rees, 553 U.S. 35 (2008).

Overview of Capital Punishment Under State and Federal Law 5

After the Court’s Baze decision, sodium thiopental became increasingly unavailable.

Consequently, some states have turned to a different drug, midazolam, in order to limit pain in

executions. Complications have occurred in executions where midazolam was used, which

prompted offenders sentenced to death in Oklahoma to challenge the state’s use of the drug. In

2015’s Glossip v. Gross decision, the Court upheld Oklahoma’s use of midazolam in part

because it was not established “that any risk of harm was substantial when compared to a

known and available alternative method of execution.”

Although the U.S. Supreme Court has never overturned a state’s method of execution as

cruel and unusual punishment, a number of states have determined secondary methods in case

a court finds its primary method unconstitutional.

For example, Wyoming uses lethal injection

as its primary method for imposing the death penalty, but if a court holds that method

unconstitutional, then lethal gas would be used. Oklahoma provides four methods of execution:

lethal injection, asphyxiation, electrocution, and firing squad; prioritized in that order, to be used

in case the method before it is found unconstitutional. Colorado law requires capital punishment

to be carried out by lethal injection, and does not provide for alternative methods under any

circumstances. However, while the law mentions the use of sodium thiopental, any other

equally or more effective substance may be used.

Methods of execution authorized by each

state are listed in Appendix D.

Section 3: Death Penalty in Colorado

Trial and Sentencing

Under Colorado law, adult offenders convicted of class 1 felonies are subject to be

sentenced to death.

An offender convicted as an adult of a class 1 felony that was committed

while the offender was a juvenile, or an offender convicted of a class 1 felony who is determined

to be “mentally retarded,” is not subject to the death penalty, and is instead sentenced to life

imprisonment with the possibility of parole after 40 years.

Prior to seeking the death penalty in a case, the prosecutor must notify the defendant that

he or she will seek such punishment. Then, the defendant’s guilt is determined in a trial.

Following conviction, the sentencing phase of the trial is conducted before the trial jury to

determine whether the defendant should be sentenced to death or life imprisonment.

Pretrial notification and trial. Prosecutors in Colorado have the discretion to determine

whether to seek the death penalty in a class 1 felony case. Under court rules, if the prosecuting

attorney wishes to seek the death penalty in a case, he or she must file a written statement of

intention to seek the death penalty to the court and defendant within nine weeks of the

defendant’s arraignment.

Glossip v. Gross, 135 S. Ct. 2726 (2015).

Ibid. at 2732 (“[The U.S. Supreme] Court has never invalidated a State’s chosen procedure for carrying out a sentence of death

as the infliction of cruel and unusual punishment,” quoting Baze).

Wyo. Stat. § 7-13-904; Okla. Stat. Ann. tit. 22, § 1014; Section 18-1.3-1202, C.R.S.

Section 18-1.3-401, C.R.S.

Section 18-1.3-401 (4)(b), C.R.S. (juveniles); Section 18-1.3-1103, C.R.S. (“mentally retarded” defendants).

Colo. R. Crim. P. 32.1 (b).

Pretrial

Trial

Sentencing

Trial Court

Review

Supreme Court

Review

Execution

Governor’s Review

Overview of Capital Punishment Under State and Federal Law 6

Except for when a defendant pleads guilty to a crime, guilt is determined when he or she is

tried before a jury. Like any other defendants, those accused of committing an offense for

which the death penalty is sought have the right to a jury trial. Unlike defendants accused of

other crimes, Colorado law prohibits defendants accused of class 1 felonies from waiving that

right.

Defendants in class 1 felony cases must have a jury of twelve, and cannot elect to have

fewer jurors empaneled.

Generally, the same procedures are used during the trial to

determine guilt in a capital punishment case as are used in any other trial.

Capital sentencing procedures under Colorado law. Following a conviction for a class 1

felony, the sentencing phase begins “as soon as practicable” to the conclusion of the trial.

The sentencing hearing is held before the trial judge and trial jury, including alternate jurors.

In order to sentence a person to death, the jury must unanimously find and specify in writing that

at least one aggravating factor has been proved and that there are no mitigating factors that

sufficiently outweigh the aggravating factors. If the jury does not find that an aggravating factor

has been proven beyond a reasonable doubt or that mitigating factors outweigh any aggravating

factors, it must sentence the defendant to life imprisonment. Similarly, if the jury’s decision to

impose the death penalty is not unanimous, the offender is sentenced to life imprisonment.

Aggravating and mitigating factors. As stated above, Colorado law requires that a jury

find at least one aggravating factor in order to impose the death penalty. Aggravating factors

that the jury may consider include: that the defendant has a prior conviction for a class 1 or 2

felony; the defendant committed the offense while lying in wait, from ambush, or by use of an

explosive or incendiary device or a chemical, biological, or radiological weapon; the defendant

killed two or more people in the same criminal episode or more than one person in more than

one criminal episode; the victim was younger than 12 years old; the offense was committed

against the victim because of the victim’s race, color, ancestry, religion, or national origin; or that

the defendant committed the offense in an especially heinous, cruel, or depraved manner. A

complete list of aggravating factors can be found in Appendix A.

State law also permits an offender to present mitigating factors to outweigh proven

aggravating factors. Mitigating factors include: the defendant’s age at the time of the offense;

the emotional state of the defendant at the time of the offense; the absence of a prior conviction;

the defendant’s cooperation with law enforcement; that the defendant is not a continuing threat

to society; and any other evidence that bears on the question of mitigation. A complete list of

mitigating factors can be found in Appendix B.

Scheduling execution and stay. If the jury does find at least one aggravating factor and

no mitigating factors, and it reaches its decision unanimously, it may sentence an offender to

death. If the jury does so, the trial court must set a week of execution, the end of which is

between 91 and 126 days from the sentencing.

The court must also stay the execution and

immediately notify the Colorado Supreme Court of the judgment.

U.S. Const. amend. VI; Colo. Const. art. 2, § 23; Section 16-10-101, C.R.S. [right to trial]; Section 18-1-406 (2), C.R.S. [waiver].

Section 18-1-406, C.R.S.

Part 12 of Title 1.3 of Article 18, C.R.S., covers sentencing in class 1 felony cases. Colorado Rule of Criminal Procedure 32.1

relates to death penalty sentencing hearings.

Section 18-1.6-1201 (1)(a), C.R.S., permits sentencing to be performed before the trial judge if the defendant has waived a jury

trial or has plead guilty. However, under Colorado law, defendants in class 1 felony cases cannot waive a jury trial. Similarly,

Section 18-1.3-1201 (2.5), C.R.S., sets forth procedures for a judge to sentence an offender to the death penalty when the trial was

before a judge and not a jury. This provision has not been utilized or reviewed by a court in light of recent U.S. Supreme Court

decisions requiring juries to make certain determinations regarding a death sentence.

Section 18-1.3-1201 (2), C.R.S.

Section 16-12-204 (1), C.R.S.; Section 18-1.3-1205, C.R.S.

Pretrial

Trial

Sentencing

Trial Court

Review

Supreme Court

Review

Execution

Governor’s Review

Overview of Capital Punishment Under State and Federal Law 7

Review of Death Sentences in Colorado

Colorado law provides for an expedited system of unitary review in death penalty cases,

which is the only review available for death penalty sentences.

This system provides for

postconviction review by the trial court of certain specified issues, and appellate review by the

Colorado Supreme Court of any issues raised during the plea, pre-trial, trial, penalty, and new

trial motion phases of the proceedings, as well as the trial court’s postconviction review.

Postconviction review by the trial court. Colorado law authorizes the trial court to

provide postconviction review of capital punishment determinations. At a hearing following the

imposition of a death sentence, trial courts are required to advise the defendant of the nature of

court review prescribed by state law, the right to counsel on direct appeal to the Colorado

Supreme Court, and the availability of review of ineffective assistance of counsel claims. At the

same hearing, the court must determine whether the defendant intends to pursue postconviction

review and, if so, whether he or she intends to proceed without counsel.

A defendant may

continue to use his or her trial counsel, or obtain new counsel for postconviction review. The

court may appoint new counsel for postconviction review for indigent defendants.

A motion for postconviction review may only raise issues permitted by Colorado law.

Defendants may seek review on whether there is evidence, not previously presented, that

requires that the conviction or the death sentence be vacated in the interests of justice, but only

if the defendant or his or her attorney could not have known or learned of the facts, with the

exercise of reasonable diligence, prior to sentencing. Defendants may also raise issues related

to whether the defendant was convicted for constitutionally protected conduct, and the

constitutionality of the conviction, sentence, or statute under which the defendant was

convicted. Colorado law also permits postconviction review of whether the trial court had

jurisdiction over the defendant or subject matter of the case; whether trial counsel rendered

ineffective assistance; and for any other grounds that may properly be the basis for an attempt

to overturn the criminal judgment during another proceeding.

Colorado Supreme Court review. Defendants who choose to appeal death sentences do

so directly to the Colorado Supreme Court, bypassing review by the Colorado Court of Appeals.

The Supreme Court also directly hears appeals of the trial court’s postconviction review. A

defendant must file a notice of appeal with the Colorado Supreme Court within seven days of

the trial court’s order on postconviction review motions. If no postconviction review motions are

filed, the defendant must file the notice of appeal within seven days of the deadline for filing

postconviction review motions.

Section 16-12-202 (1), C.R.S. Generally, reviewing courts are limited to issues before it in the reviewed case. Unitary review

allows for a reviewing court to make determinations on issues that may be the basis for an attempt to overturn the criminal judgment

during another proceeding.

Section 16-12-204 (2), C.R.S.

Section 16-12-205, C.R.S.

Section 16-12-206 (1)(c), C.R.S.

Colo. R. Crim. P. 32.2 (c).

Pretrial

Trial

Sentencing

Trial Court

Review

Supreme Court

Review

Execution

Governor’s Review

Pretrial

Trial

Sentencing

Trial Court

Review

Supreme Court

Review

Execution

Governor’s Review

Overview of Capital Punishment Under State and Federal Law 8

Any appeals by the defendant, both direct appeals and those of postconviction review, to the

Supreme Court are consolidated into one proceeding before the court. The prosecution may

appeal to the Supreme Court trial court rulings granting a motion for a new trial, postconviction

relief, or other relief; or a ruling that any statute is inoperative or unconstitutional.

Further, the

General Assembly has stated its intent that the Supreme Court give priority to death penalty

appeals over all other cases before the court, and it urges the court to render decisions in such

cases expeditiously.

Colorado law permits the Supreme Court to overturn a death sentence if it was imposed

under the influence of passion, prejudice, or any other arbitrary factor, or that the evidence

presented does not support the finding of an aggravating circumstance. If the Supreme Court

finds that the evidence in a case does not support finding an aggravated factor, the court may

still uphold the death sentence by determining that the jury would have sentenced the defendant

to death without that aggravating factor or reweighing any remaining aggravating factor or

factors and all mitigating factors, and then determining whether death is the appropriate

punishment in the case. If the jury considered an aggravating factor in an impermissibly broad

manner, the court may also uphold the sentence if it determines that the jury would have

sentenced the defendant to death had the factor been properly considered.

Governor’s review. The Colorado Constitution empowers the Governor to grant reprieves,

commutations, and pardons for all offenses, except treason and impeachment.

A reprieve is a

temporary suspension of a sentence. Commutation and pardon are two types of clemency.

State law authorizes the Governor to commute the sentence in a capital case to imprisonment

for life or a minimum 20 years at hard labor, and provides the procedures by which a convicted

offender may seek commutation.

A pardon issued by the Governor waives all “collateral

consequences” associated with a conviction, including any penalties, prohibitions, bars,

disadvantages, or disqualifications imposed based on the conviction.

Enforcement of Capital Punishment in Colorado

Colorado law requires that lethal injection be used to carry out the death penalty. The law

specifies a “continuous intravenous injection of a lethal quantity of sodium thiopental or equally

or more effective substance to cause death.” Death sentences are carried out at the

Department of Corrections (DOC) facility at Cañon City by a person trained to administer

intravenous injections. Death is pronounced by a licensed physician or coroner. As explained

above, the trial court sets the week of execution, which is immediately stayed. The day and

hour of the execution is set by the DOC’s executive director, or his or her designee. That

person, along with a physician, guards, attendants, and any other person necessary to carry out

the execution may be present. The DOC executive director may permit up to 18 witnesses to

attend as well. Prior to the execution, the Judicial Branch is required collect and test a

biological sample from the convicted offender to determine his or her genetic markers. The

DOC is required to collect and maintain certain records concerning the execution.

Section 16-12-207, C.R.S.

Section 16-12-208 (5), C.R.S.

Section 18-1.3-1201 (6) and (8), C.R.S.

Colo. Const. art. IV, § 7.

Section 16-17-101, C.R.S. (Governor’s authority); Section 16-17-102, C.R.S. (procedures).

Section 16-17-103, C.R.S.

Section 18-1.3-1202, et seq., C.R.S.

Pretrial

Trial

Sentencing

Trial Court

Review

Supreme Court

Review

Execution

Governor’s Review

Overview of Capital Punishment Under State and Federal Law 9

Current gubernatorial moratorium. In May 2013, Governor John Hickenlooper, by

executive order, granted a reprieve to Nathan Dunlap, the only inmate on death row who has

exhausted all available court procedures. By its terms, the order remains in effect until

rescinded by another executive order of the Governor. In the order, Governor Hickenlooper’s

stated reasons for granting the reprieve include the inconsistent application of the death penalty

in Colorado, the “finality” of the sentence, religious views that are contrary to capital

punishment, that the state “is not immediately equipped to carry out a death sentence,” and that

the death penalty is not a deterrent.

Because of Governor Hickenlooper’s reasoning, and

because the order may be in force indefinitely, the order has been called a moratorium on the

death penalty in Colorado. This moratorium is based on Governor Hickenlooper’s decision to

grant a reprieve to an offender subject to the penalty, and may be lifted at his discretion, or that

of subsequent Governors.

Execution in Colorado. Since the death penalty was reinstated in 1976, Colorado has

executed one man who was sentenced to death. Gary Lee Davis was executed in 1997

following his convictions on charges of first-degree murder, felony murder, conspiracy to commit

murder in the first degree, second-degree kidnapping, and conspiracy to commit second-degree

kidnapping. As of June 2017, three inmates are on Colorado’s death row, including Mr. Dunlap,

who was granted a reprieve, and two other convicted offenders whose sentences are stayed

pending ongoing legal appeals.

Colorado Legislation Concerning Capital Punishment

Since 1976, the Colorado General Assembly has undertaken death penalty reform efforts on

many occasions. Appendix C provides information on death penalty legislation since 1976.

Recently, the legislature has considered a number of bills that would affect or repeal the death

penalty.

Recent legislation to reform capital punishment procedures. Since 2014, the General

Assembly has considered four bills that would have affected procedures or review for death

penalty cases; none of those bills was adopted. In 2016, the General Assembly rejected two

bills concerning death penalty sentencing procedures. House Bill 16-1233 would have split the

sentencing phase of a death penalty trial into two distinct phases: an aggravating phase and a

mitigating phase. Senate Bill 16-064 would have required only nine jurors to agree to the

imposition of the death penalty. Both bills failed to pass out of committee.

The General Assembly considered bills relating to review of death sentences during the

2014 legislative session. House Bill 14-1197 would have limited the Governor to a single

reprieve to an offender sentenced to death, granted for cause. Senate Bill 14-069 would have

set specific deadlines for the Colorado Supreme Court to hear appeals in death penalty cases.

Both of these bills failed to pass out of committee.

Efforts to repeal the death penalty in Colorado. Since 2013, the General Assembly has

considered three bills to repeal the death penalty. House Bill 13-1264 and Senate Bill 17-095

would have repealed the death penalty. House Bill 13-1270 would have repealed the death

penalty, contingent upon passage of a statewide ballot measure in the November 2014 general

election. All three bills failed to pass out of committee.

Office of the Governor, State of Colorado, “Death Sentence Reprieve,” Exec. Order D 2013-006 (May 22, 2013).

Overview of Capital Punishment Under State and Federal Law 10

Section 4: Capital Punishment in Other Jurisdictions

Capital Punishment in Other States

Thirty-one states, including Colorado, permit the death penalty as punishment for criminal

offenses, as shown on the map below. Each of those states utilizes lethal injection as the

primary form of execution. Fourteen states have alternative methods of execution in the event

that lethal injection is not available, the inmate wishes to select an alternate method, or for

offenders sentenced prior to the introduction of lethal injection. Alternative methods include

electrocution, lethal gas, hanging, and firing squad. A complete list of states that permit capital

punishment, and their methods of execution, is available in Appendix D.

Figure 1

States with Capital Punishment, 2017

Prisoners on death row and executions since 1976. As of October 1, 2016, there were

2,902 inmates on death row in the United States.

Between reinstatement of the death penalty

in 1976 and May 17, 2017, a total of 1,453 inmates have been executed nationwide. Texas

carried out the most executions of any state during that time, putting 542 inmates to death.

The number of executions in each state since 1976 is listed in Appendix E.

Recent efforts to repeal the death penalty in other states. Generally, capital punishment

may be abolished by legislative action, ballot initiative or referendum, or judicial action. Four

states — New Mexico (2009), Illinois (2011), Connecticut (2012) and Maryland (2013) — have

legislatively abolished the death penalty in recent years. The Nebraska Legislature repealed

the death penalty in 2015, requiring an override of the Governor’s veto to do so. However, in

The Criminal Justice Project, NAACP Legal Defense and Educational Fund, Death Row U.S.A., Fall 2016, available at:

https://deathpenaltyinfo.org/documents/DRUSAFall2016.pdf.

Death Penalty Information Center, Number of Executions by State and Region Since 1976, webpage,

https://deathpenaltyinfo.org/number-executions-state-and-region-1976.

Overview of Capital Punishment Under State and Federal Law 11

the 2016 general election, Nebraska’s voters chose to defeat the legislature’s action and keep

the death penalty as a punishment for first degree murder in the state.

In addition to Nebraska, voters in two other states acted on ballot questions concerning

capital punishment during the 2016 general election. California voters rejected Proposition 62,

which would have abolished the death penalty. In the same election, voters approved

Proposition 66, which sought to shorten the time spent on legal challenges to death sentences.

In Oklahoma, State Question 776 passed, adding to the state constitution a declaration that the

death penalty is not cruel and unusual punishment.

In Delaware, capital punishment was repealed by judicial decision. In August 2016, the

Delaware Supreme Court held that the state’s death penalty scheme was unconstitutional

because it violated the Sixth Amendment to the U.S. Constitution by permitting judges, not

juries, to find certain facts necessary to impose a death sentence.

In December 2016, the

Delaware Supreme Court held that its ruling applied retroactively, so the remaining offenders

sentenced to death would instead receive sentences of life imprisonment without parole,

probation, or any other reduction.

Federal Capital Offenses

Federal capital cases are governed by the Federal Death Penalty Act. Under federal law,

the death penalty may apply in cases of treason, espionage, homicide, and certain drug

offenses.

In federal death penalty-eligible cases, the U.S. Attorney General determines

whether to seek the death penalty.

There is no statute of limitations for federal capital

offenses.

Pregnant women; a person who is “mentally retarded,” or a person who, as a result

of mental disability, lacks the mental capacity to understand the death penalty and why it was

imposed; a person who committed the capital offense while under the age of 18; and certain

Native Americans are not subject to the federal death penalty.

Federal capital sentencing and review. In federal cases, when the prosecutor provides

notice of intent to seek the death penalty, a sentencing phase follows a conviction for a death

penalty-eligible offense. In order for the offender to be sentenced to death, the prosecution

must prove at least one aggravating factor, and the proved aggravating factors must sufficiently

outweigh any mitigating factors to justify imposing a death sentence.

In cases of homicide,

certain intent must also be proved.

Offenders sentenced to death are entitled to appellate

review of their sentences.

Imposition of the federal death penalty. If the sentence is upheld, the U.S. Marshals

Service supervises the implementation of the death sentence in accordance with the law of the

state in which the sentence is imposed, or, if that state does not permit capital punishment,

pursuant to the laws of another state, as determined by a court.

The U.S. Marshals Service is

permitted to use state and local facilities and personnel to carry out the sentence.

Nebraska Referendum 426, Nebraska Secretary of State, Revised Official Report of the Board of State Canvassers, p. 60,

available at: http://www.sos.ne.gov/elec/2016/pdf/2016-canvass-book.pdf.

Rauf v. State, 145 A.3d 430 (Del. 2016).

Powell v. State, 153 A.3d 69 (Del. 2016).

18 U.S.C. § 3591 (a).

U.S. Dept. of Justice, United States Attorney Manual, §§ 9-10.050 (Apr. 2014) and 9-10.160 (Jan. 2017), available at:

https://www.justice.gov/usam/united-states-attorneys-manual.

18 U.S.C. § 3281.

18 U.S.C. § 3591 [under 18 at the time of offense]; 18 U.S.C. § 3596 (b) [pregnant women]; 18 U.S.C. § 3596 (c) [“mentally

retarded” persons]; and 18 U.S.C. § 3598 [Native Americans in certain circumstances].

18 U.S.C. § 3593 (e). Aggravating and mitigating factors may be found in 18 U.S.C. § 3592.

18 U.S.C. § 3591 (a)(2).

18 U.S.C. § 3595 (a).

18 U.S.C. § 3596.

18 U.S.C. § 3597.

Overview of Capital Punishment Under State and Federal Law 12

Federal execution. Since the 1988 adoption of the Federal Death Penalty Act, 76

defendants have been sentenced to death. Of those 76 sentenced, 11 have been removed

from death row, and 3 have been executed. The remaining 62 prisoners are on federal death

row.

Each of the prisoners on death row was convicted of crime involving homicide, some of

which were drug-related; none involves espionage or treason. The prisoners who have been

removed from death row have either been resentenced after appeal to life in prison, had their

sentences commuted to life in prison, or have died while on death row. Of the three executions

since 1988, two were carried out in June 2001, and the most recent federal execution occurred

in March 2003.

The 62 inmates on death row includes those who have received a death sentence from a jury, but have not been formally

sentenced by a judge; those who may still have appeals pending or available, which may affect the death sentence; and those who

may have had their death sentences reversed, but prosecutors either have appealed the reversal or can still seek the death penalty

in a resentencing hearing.

Death Penalty Information Center, Federal Death Row Prisoners, (updated Feb. 9, 2017), http://deathpenaltyinfo.org/federal-

death-row-prisoners.

Overview of Capital Punishment Under State and Federal Law 13

Appendix A

Aggravating Factors Under Section 18-1.3-1201 (5), C.R.S.

The following are aggravating factors under Colorado law:

 the offense was committed by a person under sentence of imprisonment for a class 1, 2,

or 3 felony, or for a crime committed against another state or the United States which

would constitute a class 1, 2, or 3 felony;

 the defendant was previously convicted in Colorado or any other state of a class 1 or 2

felony involving violence, as defined by Colorado law;

 the defendant intentionally killed any of the following persons while the person was

engaged in the course of the performance of the person's official duties, and the

defendant knew or reasonably should have known that the victim was a person engaged

in the performance of the person's official duties, or the victim was intentionally killed in

retaliation for the performance of the victim's official duties:

o a peace officer or former peace officer;

o a firefighter;

o an emergency medical service provider;

o a judge, referee, or former judge or referee of any court of record in the state or

federal system or in any other state court system or a judge or former judge in any

municipal court in this state or in any other state;

o an elected state, county, or municipal official; or

o a federal law enforcement officer or agent or former federal law enforcement officer

or agent;

 the defendant intentionally killed a person kidnapped or being held as a hostage by the

defendant or by anyone associated with the defendant;

 the defendant has been a party to an agreement to kill another person in furtherance of

which a person has been intentionally killed;

 the defendant committed the offense while lying in wait, from ambush, or by use of an

explosive or incendiary device or a chemical, biological, or radiological weapon;

 the defendant committed a class 1, 2, or 3 felony and, in the course of or in furtherance

of such or immediate flight therefrom, the defendant intentionally caused the death of a

person other than one of the participants in the crime;

 the offense was committed for pecuniary gain;

 in the commission of the offense, the defendant knowingly created a grave risk of death

to another person in addition to the victim of the offense;

 the defendant committed the offense in an especially heinous, cruel, or depraved

manner;

 the offense was committed for the purpose of avoiding or preventing a lawful arrest or

prosecution or effecting an escape from custody, including the intentional killing of a

witness to a criminal offense;

 the defendant unlawfully and intentionally, knowingly, or with universal malice

manifesting extreme indifference to the value of human life generally, killed two or more

persons during the commission of the same criminal episode;

 the defendant intentionally killed a child younger than 12 years old;

 the defendant committed the class 1 felony against the victim because of the victim's

race, color, ancestry, religion, or national origin;

 the defendant's possession of the weapon used to commit the class 1 felony constituted

a felony offense under Colorado or U.S. law;

 the defendant intentionally killed more than one person in more than one criminal

episode; or

 the victim was a pregnant woman, and the defendant intentionally killed the victim,

knowing she was pregnant.

Overview of Capital Punishment Under State and Federal Law 14

Appendix B

Mitigating Factors Under Section 18-1.3-1201 (4), C.R.S.

The following are mitigating factors under Colorado law:

 the defendant’s age at the time of the crime;

 the defendant's capacity to appreciate wrongfulness of his or her conduct or to conform

his or her conduct to the requirements of law was significantly impaired, but not so

impaired as to constitute a defense to prosecution;

 the defendant was under unusual and substantial duress, although not such duress as to

constitute a defense to prosecution;

 the defendant was a principal in the offense which was committed by another, but the

defendant's participation was relatively minor, although not so minor as to constitute a

defense to prosecution;

 the defendant could not reasonably have foreseen that his or her conduct in the course

of the commission of the offense for which he or she was convicted would cause, or

would create a grave risk of causing, death to another person;

 the emotional state of the defendant at the time the crime was committed;

 the absence of any significant prior conviction;

 the extent of the defendant's cooperation with law enforcement officers or agencies and

with the office of the prosecuting district attorney;

 the influence of drugs or alcohol;

 the good faith, although mistaken, belief by the defendant that circumstances existed

which constituted a moral justification for his or her conduct;

 the defendant is not a continuing threat to society; or

 any other evidence which in the court's opinion bears on the question of mitigation.

Overview of Capital Punishment Under State and Federal Law 15

Appendix C

Colorado Death Penalty Legislation, 1976 to 2017

Year

Bill Number

Subject

Disposition

1976

HB 76-1111

Criminal Sentencing

Signed

1987

HB 87-1357

Death Penalty for Class 1 Felonies

Postponed Indefinitely

1988

SB 88-078

Death Penalty Procedures

Signed

HB 88-1042

Death Penalty Procedures

Signed

1990

SB 90-117

Aggravating Factors

Signed

1991

SB 91-119

Imposition of Death Sentence

Postponed Indefinitely

1992

SB 92-055

Death Penalty Imposed on Retarded Inmates

Lost

SB 92-124

Imposition of Death Penalty

Postponed Indefinitely

1993

SB 93-138

Prohibit Death Penalty for Mentally Retarded Inmates

Signed

HB 93-1088

Prosecution of Criminal Laws

Signed

1994

SB 94-136

Aggravating Factors for Death Penalty Cases

Signed

SB 94-204

Expedite Review of Death Penalty Cases

Signed

HB 94-1144

Death Penalty Imposed on Cases

Involving Multiple Killings

Signed

1995

SB 95-054

Death Penalty

Signed

HCR 95-1001

Amend Colorado Constitution Death Penalty Provisions

Lost

1996

HB 96-1002

Death Penalty: Sentencing Rehearing

Postponed Indefinitely

1997

HB 97-1077

Substantive Changes to Criminal Statutes

Signed

HB 97-1225

Unitary Death Penalty Review

Signed

1998

HB 98-1088

Procedural Criminal Statutes

Signed

HB 98-1160

Substantive Changes to Criminal Statutes

Signed

2000

SB 00-028

Imposition of Death Penalty by Jury

Lost

SB 00-070

Imposition of Death Penalty

Postponed Indefinitely

HB 00-1234

Aggravating Factors for Imposition of Death Penalty

Signed

HB 00-1299

Trial Judge to Impose Death Penalty

Lost

2001

SB 01-207

Trial Judge to Impose Death Penalty

Postponed Indefinitely

SR 01-020

Death Penalty Study

Deemed Lost

2002

SB 02-077

One Judge to Determine Death Penalty Sentence

Postponed Indefinitely

2002S*

SB 02S-002

Imposition of Death Penalty by Unanimous Jury

Postponed Indefinitely

SB 02S-003

Sentencing in Capital Offense Cases

Postponed Indefinitely

SB 02S-005

Sentencing in Capital Offense Cases

Postponed Indefinitely

SB 02S-006

10 Juror Majority to Impose Death Penalty

Postponed Indefinitely

SB 02S-008

Eliminate Death Penalty Postponed Indefinitely

Postponed Indefinitely

HB 02S-1003

Sentencing Procedures in Capital Offense Cases

Postponed Indefinitely

HB 02S-1005

Imposition of Death Penalty by Unanimous Jury

Signed

HB 02S-1007

Sentencing in Capital Offense Cases

Postponed Indefinitely

HB 02S-1008

Imposition of Death Penalty

Postponed Indefinitely

2003

HB 03-1297

Death Penalty Aggravating Factors

Signed

2005

HB 05-1014

Substantive Changes to Criminal Statutes

Became Law

2007

HB 07-1094

Repeal Death Penalty to Establish Cold Case Unit

Lost

2008

SB 08-195

Death Penalty Imposed for Cases of Sexual Assault on

Children Younger than 12

Postponed Indefinitely

2009

HB 09-1274

Repeal Death Penalty

Lost

2013

HB 13-1264

Repeal of the Death Penalty

Postponed Indefinitely

HB 13-1270

Refer Repeal of Death Penalty to Citizen Vote

Postponed Indefinitely

2014

SB 14-069

Swift Justice Act

Postponed Indefinitely

HB 14-1197

Governor's Authority to Grant Reprieve

Postponed Indefinitely

2016

SB 16-064

Death Penalty Jury Decision

Postponed Indefinitely

HB 16-1233

Changes to Death Penalty Trials

Postponed Indefinitely

2017

SB 17-095

Repeal the Death Penalty

Postponed Indefinitely

Source: Legislative Council Staff.

*In 2002, the Governor called a special session to address sentencing in death penalty cases.

Overview of Capital Punishment Under State and Federal Law 16

Appendix D

Methods of Execution, by Jurisdiction

State

Citation

Primary

Method

Secondary

Methods

Use of Secondary Method

Alabama

Ala. Code § 15-18-82.1.

Lethal Injection

Electrocution

Choice of offender

Arizona

Ariz. Rev. Stat. § 13-757.

Lethal Injection

Lethal Gas

Choice of offender, if offense occurred prior

to November 23, 1992

Arkansas

Ark. Code. § 5-4-617.

Lethal Injection

Electrocution

If execution by lethal injection under this

section is invalidated by a final and

unappealable court order

California

Cal Pen Code § 3604; 1992

Cal Stats. ch. 558.

Lethal Injection

Lethal gas

Choice of offender, if sentenced prior to

August, 27, 1992, or if lethal injection is held

invalid

Colorado

Section 18-1.3-1202, C.R.S.

Lethal Injection

Florida

Fla. Stat. § 922.105.

Lethal Injection

Electrocution

Electrocution by choice of offender; if both

lethal injection and electrocution are found

unconstitutional, then any constitutional

method may be used

Georgia

Ga. Code Ann. § 17-10-38.

Lethal Injection

Idaho

Idaho Code Ann. § 19-2716.

Lethal Injection

Indiana

Ind. Code § 35-38-6-1.

Lethal Injection

Kansas

Kan. Stat. Ann. § 22-4001.

Lethal Injection

Kentucky

Ky. Rev. Stat. §§ 431.220 and

431.223; 1998 Ky. Acts 220.

Lethal Injection

Electrocution

Choice of offender, if sentenced prior to

March 1, 1998; or if lethal injection is found

unconstitutional

Louisiana

La. Rev. Stat. Ann. § 15:569.

Lethal Injection

Mississippi

Miss. Code Ann. § 99-19-51.*

Lethal Injection

Asphyxiation,

Electrocution,

Firing Squad

Methods are used in listed order when the

method before is found unconstitutional

Missouri

Mo. Rev. Stat. § 546.720.

Lethal Injection,

Lethal Gas

Statute is ambiguous concerning the

determination of execution method

Montana

Mont. Code Ann. § 46-19-103.

Lethal Injection

Nebraska

Neb. Rev. Stat. § 83-964.

Lethal Injection

Nevada

Nev. Rev. Stat. § 176.355.

Lethal Injection

New Hampshire

N.H. Rev. Stat. Ann. § 630:5.

Lethal Injection

Hanging

If lethal injection is impractical for any reason

New Mexico**

Lethal Injection

North Carolina

N.C. Gen. Stat. § 15-188.

Lethal Injection

Ohio

Ohio Rev. Code. § 2949.22.

Lethal Injection

Oklahoma

Okla. Stat. Ann. tit. 22, § 1014.

Lethal Injection

Asphyxiation,

Electrocution,

Firing Squad

Methods are used in listed order when the

method before is found unconstitutional

Oregon

Or. Rev. Stat. § 137.473.

Lethal Injection

Pennsylvania

61 Pa. Cons. Stat. § 4304.

Lethal Injection

South Carolina

S.C. Code Ann. § 24-3-530.

Lethal Injection

Electrocution

Choice of offender; or if lethal injection is

found unconstitutional

South Dakota

S.D. Codified Laws

§ 23A-27A-32.

Lethal Injection

Tennessee

Tenn. Code Ann. § 40-23-114.

Lethal Injection

Electrocution

Choice of offender, if sentenced prior to 1999;

or if lethal injection drugs are unavailable or if

lethal injection is found unconstitutional

Texas

Tex. Code Crim. Proc. § 43.14.

Lethal Injection

Utah

Utah Code § 77-18-5.5.

Lethal Injection

Firing Squad

Choice of offender, if sentenced prior to

May 3, 2004; or if lethal injection is found

unconstitutional or drugs are unavailable

Virginia

Va. Code Ann. § 53.1-234.

Lethal Injection

Electrocution

Choice of offender

Washington

Wash. Rev. Code § 10.95.180.

Lethal Injection

Hanging

Choice of offender

Wyoming

Wyo. Stat. § 7-13-904.

Lethal Injection

Lethal Gas

If lethal injection is found unconstitutional

Federal

28 C.F.R. § 26.3.

Lethal Injection

Source: Legislative Council Staff; National Conference of State Legislatures.

*As amended by Mississippi House Bill 683 (2017), signed into law on April 5, 2017.

**New Mexico repealed the death penalty, but not retroactively, so two previously sentenced offenders are still subject to capital

punishment.

Overview of Capital Punishment Under State and Federal Law 17

Appendix E

Executions by State, 1977 through July 7, 2017

State

Executions

Alabama

Arizona

Arkansas

California

Colorado

Connecticut*

Delaware*

Florida

Georgia

Idaho

Illinois*

Indiana

Kansas

Kentucky

Louisiana

Maryland*

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Mexico*

North Carolina

Ohio

Oklahoma

112

Oregon

Pennsylvania

South Carolina

South Dakota

Tennessee

Texas

542

Utah

Virginia

113

Washington

Wyoming

Federal

Source: Death Penalty Information Center.

*Includes all states that have permitted capital

punishment during any period since 1976, including

those that have repealed the death penalty. States

marked with an asterisk (*) do not currently

sentence offenders to death.