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February 4, 2013

"Colorado Capital Punishment: An Empirical Study"

The title of this post is the title of this paper now up at SSRN by Justin F. Marceau, Sam Kamin and Wanda Foglia. Here is the abstract:

This article reports the conclusions of an empirical study of every murder conviction in Colorado between January 1, 1999 and December 31, 2010.  Our goal was to determine: 1) What percentage of first degree murderers in Colorado were eligible for the death penalty; and 2) How often the death penalty was sought against these killers.  More importantly, our broader purpose was to determine whether Colorado’s statutory aggravating factors meaningfully narrow the class of death eligible offenders as required by the Constitution.

We discovered that while the death penalty was an option in approximately ninety two percent of all first degree murders, it was sought by the prosecution initially in only three percent of those killings, pursued all the way through sentencing in only one percent of those killings, and obtained in only 0.6 percent of all cases.

These numbers compel the conclusion that Colorado’s capital sentencing system fails to satisfy the constitutional imperative of creating clear, statutory standards for distinguishing between the few who are executed and the many who commit murder.  The Eighth Amendment requires that these determinations of life and death be made at the level of reasoned legislative judgment, and not on an ad hoc basis by prosecutors.  The Supreme Court has emphasized that a State’s capital sentencing statute must serve the “constitutionally necessary function . . . [of] circumscrib[ing] the class of persons eligible for the death penalty” such that only the very worst killers are eligible for the law’s ultimate punishment.  Colorado’s system is unconstitutional under this standard because nearly all first degree murderers are statutorily eligible to be executed.

I do not think one needs to be a sophisticated empiricist to have an inkling, based on the quality and quantity of support for the death penalty expressed in some comments, that not all readers of this blog with feel compelled to reach the same constitutional conclusion reached by these authors concerning Colorado's modern experience with capital punishment.

February 4, 2013 at 12:42 PM | Permalink


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Just because lots of people qualify doesn't mean that the criteria are defective. I guess Colorado has lots of bad people.

Posted by: justme | Feb 5, 2013 8:52:13 AM

It's not that there are "bad people" -- you can evaluate that by looking at the murder rate generally. Rather, its a tightrope walk for a person to commit a homicide that (1) meets the elements of first degree murder, but (2) does not have any feature to trigger one of the myriad of eligibility "aggravating circumstances."

I think we are all cynics of the death penalty, and I think Otis, et. al., would agree that the so-called "Furman promise" has proven to be pure nonsense. Yet we continue with this blind dance that now costs tens of millions per execution, in propping up a post-Furman facade that is no better than the pre-Furman landscape.

Case in point is this study. First, it shows the Id of the state legislatures' rebellion against the 8A notion of meaningful narrowing, as they stack the aggravating factors. Second, it's coupled with the Superego of the public decency and public fisc, which leads to a very capricious few of death-eligible offenses to actually be prosecuted to verdict. And on top of this, you can add the Locket / Eddings requirement that anything can be considered in mitigation.

The result: we've come full circle to pre-Furman days.

I think if a state was serious about the promise of Furman, their DP scheme would narrow such that no more than 10-20% of intentional murders are death eligible via the eligibility aggravators, and then would require a process so that nearly all such homicides result in at least charging of the death penalty. But this is not the case in any DP state so far as I know. And it is an elephant in the room that the Supreme Court will not be able to keep punting forever. Furman will have to eventually be either gutted formally, or the death penalty will have to be found unconstitutional under the Eighth Amendment. I place my odds on the latter.

Posted by: sashokJD | Feb 5, 2013 10:40:56 AM

Come now sashokJD:

You handcuff and kneecap us with non-probative appeals and unfounded delays,
then denounce our pursuit of justice due to our tardiness, inconsistency and cost?

Posted by: Adamakis | Feb 5, 2013 1:22:52 PM


Were one to esteem the death penalty to be "unconstitutional" under the 8th Amendment,
then I suspect tha even Sarah Palin would call such an one, "retarded".

[She abhors use of the term].

Posted by: Adamakis | Feb 5, 2013 1:27:32 PM

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