Denver
post
Colorado
death penalty misguided
Friday,
January 25, 2002 - The U.S. Supreme Court has just agreed to hear a case
that will have a significant impact on the death penalty in Colorado. The
case will address the issue of whether judges or juries are the appropriate
bodies to find facts that could result in the death penalty. Under Colorado
law, a jury finds facts leading up to a conviction for first-degree murder.
In order to impose the death penalty, additional facts must be found by
three judges or the sentence is automatically life without possibility of
parole.
If
the Supreme Court decides, as I believe it will, that only juries can
constitutionally find these facts, the Colorado three-judge panel will be
discarded, and once again, Colorado will be without a death penalty,
sparing the lives of at least three current death row inmates.
As
repugnant as the death penalty is to a civilized society, the atrocity in
Colorado is compounded by the transparent method employed by our
legislature in an attempt to stack the deck in favor of death verdicts by
abandoning jury sentencing and leaving these decisions to government
employees called judges. The only reason for doing this was that
prosecutors found it too difficult to convince 12 citizens to kill one of
their fellow human beings.
In
fact, one local prosecutor testified in the legislative hearings that it is
simply "unfair to ask a housewife whose biggest worry is what to make
for dinner to decide life-and-death questions." Thinking judges would
not have the same "kill problem" juries had, the current scheme
was passed into law.
Several
high-profile cases involving three-judge panels have recently resulted in
life sentences and have caused some in the legislature to return to the
drawing board and introduce a bill putting the life-or-death decision
solely in the hands of the single trial judge.
Those
politicians who have taken the life-and-death decisions away from juries
suffer from a basic mistrust of their constituents.
One
may rightly ask proponents of judge sentencing how these same citizens can
be trusted at the ballot box if not in the jury box. The Supreme Court has
consistently held that the jury is the "conscience of the
community." Why is it that the Colorado experience has shown that, in
this community, 12 citizens generally cannot in good conscience kill their
fellow human beings, while the Texas community has proven in hundreds of
cases that no sleep is lost over bodies piled high outside the state
killing factory?
More
to the point, why does our legislature show such disdain for the will of
the people in our community? They have declared through their verdicts that
they are not nearly as in love with the death penalty as various demagogues
in our legislature believe they are. Ultimately, what legitimacy can a
government have when it is so frightened of the conscience of the community
it governs?
Shortly
before he retired, Justice Harry Blackmun wrote that he would "no
longer tinker with the machinery of death." Having considered hundreds
of death penalty cases over decades, Blackmun finally concluded that there
was no mechanism within the realm of human experience which would permit
the fair imposition of the death penalty.
He
concluded, like justices William J. Brennan Jr. and John Curtis Marshall
before him, that human frailty and the inherent failings of our criminal
justice system make the death penalty unconstitutional.
This
basic truth is lost on our legislature. Tinker it must. Several years ago
the legislature tinkered its way right out of a death penalty altogether.
Its efforts to increase the body count caused the Colorado Supreme Court to
undo the legislature's handiwork and declare our statute unconstitutional.
The
three-judge panel was the illegitimate child of that decision. If not
struck down by the United States Supreme Court through the Arizona case it
is currently considering, it will ultimately be struck down by either our
own high court or the one in Washington.
Our
system cannot survive constitutional scrutiny. In it, two judges at a
trial's penalty phase are asked to consider the testimony of witnesses at
the guilt phase, testimony that they never sat through. Colorado judges do
a "drive-by" analysis of the trial testimony by reading
transcripts of the proceedings. They then make their life-and-death
decisions, never having observed a single witness.
As
my father always taught me, "it's not what you say but how you say it."
Not viewing witnesses at trial and simply reading their testimony
afterwards is like reviewing a movie after reading the script. Most of the
impact and meaning is lost. In the case of the Colorado statute, this
cursory review has life-and-death consequences.
Our
state will very likely have occasion to study the issue again in the face
of the Supreme Court's review of the Arizona case. Perhaps this time our
legislature will finally decide to stop tinkering with the machinery of
death and begin to behave as a civilized governmental body.
The
evil institution that is the death penalty will ultimately be abolished
here as it has been throughout the rest of the Western world. Instead of
trying to re-work the unworkable, the legislature should finally abandon
this barbaric relic and abolish the death penalty in Colorado
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