Commentary, Mike Littwin, Rocky Mountain News

There's no such thing as a 'free ride' on death row

William Nieves did not come as a citizen of Colorado to address the House and Senate Judiciary committees.

 He came as a former citizen of death row.

 He came as man wrongly convicted in a 1992 Philadelphia murder. He came as a man who sat for 6 years awaiting his execution. He came as a man who was 30 days from receiving his death warrant. He came as a man who watched other death-row inmates led away in chains to the executioner. He came as a man who sat scared in his cell, battling depression and hopelessness, wondering when it would be his turn to walk up the final mile.

 But he came, mostly, to tell the Colorado legislators that he, as an innocent victim, knew what they didn't know - that no system is perfect, that no system could guarantee that innocent people wouldn't be executed, that fiddling with a flawed law is still fiddling with a flawed law.

 The House finished its fiddling in a day. The Senate should soon follow. And that's despite Nieves' advice, which echoed the advice of former Supreme Court Justice Harry Blackmun, who said he would "no longer . . . tinker with the machinery of death."

 Nieves is an articulate spokesman who spends his days testifying against the death penalty.

 "As a civilized society, we've to go start dealing with the fact that innocent people are sitting on death row," Nieves said.

 The legislators listened. They just didn't hear.

 Reps. Shawn Mitchell and Lynn Hefley even had the temerity to tell Nieves he was living proof that the system worked - because after getting a retrial, he was still living. Nieves tried not to be insulted.

 They should have read what U.S. District Judge Jed Rakoff said when he ruled that the death penalty was unconstitutional. He said errors in the system make it "fully foreseeable" that innocent people will be executed.

 OK, you've heard it before. You've heard all the arguments, but it has been a while since you've heard them when there was no death penalty in Colorado. In the wake of the Supreme Court ruling that effectively struck down Colorado's law, we should be thinking hard about this issue - instead of hardly thinking.

 Sen. Pat Pascoe was listening and thinking. She introduced a bill to abolish the death penalty. What she has gotten for her troubles is heat from fellow Democrats who don't want to have to vote on the issue. Even most death-penalty foes are willing to compromise with the governor and revert to the jury system of issuing the death penalty.

 I hope you heard the governor's explanation for the special session - that he didn't want potential murderers to get a "free ride."

 You'd almost laugh at the, uh, logic here. According to the governor, a potential murderer weighs the pros and cons and decides he does the killing if he can get the bargain rate - every single breath you ever take will be behind bars.

 Apparently, some potential murders have resisted this bargain. Have you noticed a murder spree in the past 2 weeks? What world are we talking about here?

 Oh, I know which world. It's the one that Pascoe says puts us in line with what she calls "those bastions of freedom." Meaning the only countries who execute more people than we do - China, Saudi Arabia and Iran.

 We are in a time right now of real reflection on the death penalty. 2 governors have issued moratoriums. The Supreme Court has made 2 rulings limiting the ability of states to execute people.

If you want to reflect, there are at least two ways to attack the death penalty. One is that it's wrong for the state to kill people. This argument suggests that the reason we, alone among our peer nations, have the death penalty is the same reason that we, alone among our peer nations, have such a high murder rate: because we believe that violence is a rational, reasonable response to violence.

 The other problem with the death penalty is that it's unfairly administered. The evidence - particularly on race and geography - could fill more than a few hearing rooms.

 I've heard lawmakers argue that Colorado is fair and careful in administering the death penalty. I wonder which state says it isn't. I wonder if, in Texas, the death penalty leader, they think they're careless with people's lives.

 I leave it to a man who knows the law all too well to argue the point. There have been 101 people released from death row since the reinstatement of the death penalty in 1978. Nieves was No. 89.

 In a 2-day trial, he was tried and convicted and sentenced to death, even though, as it later became clear, the prosecution had held back exculpatory evidence. In prison, Nieves became his own lawyer and researched his own case. When he found a way to challenge the verdict, he found a new lawyer and was found not guilty in a new trial.

 "Do we have to wait for 101 people to be released from death row in each state before we do something?" he asked. "Does Colorado have to wait until it executes an innocent man before it does something?"

 Or do we worry about the governor's free ride? Nieves nearly got his free ride to eternity.