Equal justice and the death sentence

By Al Knight

 Wednesday, January 23, 2002 - Denver Post columnist Ed Quillen, sometimes called the Sage of Salida, used his column last Sunday to make a flawed argument against the recall of Canon City District Attorney Ed Rodgers.

Quillen is certainly entitled to oppose the recall and to support Rodgers' decision not to seek the death sentence for Jason and Michael Stovall, the 24-year-old twins who killed Fremont County Deputy Sheriff Jason Schwartz Sept. 28.

 My quarrel with Quillen (we're close to poetry here) has to do with his misrepresentations of what the state's capital punishment law not only allows but requires.

 The most serious misstatement was that recall proponents favor an unequal system of justice in which the life of a police officer is elevated over that of other murder victims. Valuing an officer's life above that of an "ordinary citizen," he says, can't be squared with the goal of "equal justice under law."

 "Why," Quillen asks, "should the murder of a peace officer be any more heinous than the murder of any other citizen?"

 There is an answer to this question, and it isn't hard to find.

 The Supreme Court has held that the death sentence can't be imposed in an inconsistent and arbitrary manner. The states, thus, have been required to determine the types of crimes that merit the death sentence. An elaborate process is required to impose a death sentence.

 Colorado law specifically includes a list of aggravating factors which - if proven beyond a reasonable doubt - can result in the imposition of the death sentence. At least two of these were present in the death of Schwartz. One was that a peace officer was killed. (The law, by the way, also covers the murder of a firefighter, judge or elected official.) A second factor was that the murder occurred as the Stovall twins were escaping lawful custody. A potential third aggravating factor was the shooting of police officer, Toby Bethel of Florence, who is now paralyzed.

 Other statutory factors might be cited, but the point would be the same. Colorado law specifically answers Quillen's question. It does not say that the life of a police officer is more valuable than that of another citizen. What it recognizes is that killing a police officer or a witness during an escape from custody or a firefighter or a judge or an elected official are acts that strike directly at society. Murder in these circumstances is deemed to be especially serious, and the Supreme Court has specifically upheld the imposition of the law's most severe penalty in these and other types of cases.

 Quillen says he would not sign the recall petition. I would. The people of the district have a perfect right to judge the quality of Rodgers' decision in this case. Rodgers said he didn't think a three-judge panel would impose the death sentence. His critics rightly point out that his job was to decide if the case qualified for prosecution under the death penalty statute.

 What kind of a sentencing scheme will be left if prosecutors are free to substitute their "guess" on what a panel will do for the considered judgment of the panel itself?

 No one is suggesting here that a death sentence, even if sought, should have been automatic. A jury would have decided if Schwartz's death was first-degree murder. The panel of judges would have had to find one or more aggravating circumstances proved beyond a reasonable doubt, and to consider every mitigating factor the defense wanted to present - factors that, in the language of law, could be presented without any burden of proof. Even if the aggravating outweighed the mitigating, the panel still could have declined to impose the death sentence.

 This process, whatever its merits, was precluded by Rodgers' decision. Quillen is simply wrong to characterize this understandable and reasoned opposition to the decision as an attempt to impose an unequal system of justice upon the land.