Gov. John Hickenlooper signed an Executive Order today that grants Nathan J. Dunlap, also known as Offender No. 89148, a temporary reprieve from his death sentence.
The Colorado Constitution provides for one final review by the governor before the State executes another human being. This check is one that, from its Common Law origins, embeds in the governor the authority to grant a reprieve. Not taking action in this case was not an option.
"I have taken this responsibility seriously," Hickenlooper says in the Executive Order. "As Governor, I must either direct state employees to execute a human being, or I must exercise my constitutional authority to stop an execution. Both paths require an affirmative decision by me, and the prospect of either decision has been daunting. It has forced me to think of the issue in a personal way because it is on my conscience the decision will weigh. I am confident that most Coloradans -- no matter what their views on the death penalty may be -- will respect and understand the unique burden of this decision."
The governor met in recent weeks with prosecutors, clergy, victims and their families, law enforcement, defense attorneys, and countless other people to discuss this case and the death penalty. In granting the reprieve, the governor used the Executive Order to explain a number of issues, including:
Colorado's imperfect capital punishment system
"If the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado's system for capital punishment is not flawless. A recent study co-authored by several law professors showed that under Colorado's capital sentencing system, death is not handed down fairly. Many defendants are eligible for capital punishment but almost none are actually sentenced to death. The inmates currently on death row have committed heinous crimes, but so have many others who are serving mandatory life sentences. As one former Colorado judge said to us, "[The death penalty] is simply the result of happenstance, the district attorney's choice, the jurisdiction in which the case is filed, perhaps the race or economic circumstance of the defendant.' Indeed, "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two,' U.S. Supreme Court Justices Stewart, Powell, and Stevens wrote in a 1976 decision. Thus, they said, "there is a corresponding difference in the need for reliability.'"
Issues surrounding the statutorily required drugs for lethal injection
"... as a result of the infrequent use and application of the death penalty in Colorado, the State is not immediately equipped to carry out a death sentence. Recent restrictions imposed by pharmaceutical companies and the Food and Drug Administration make procuring these drugs challenging. We must ensure that individuals facing the death penalty are afforded certain guaranteed rights of due process before a state proceeds with an execution."
National and international trend toward abolition of the death penalty
"Maryland, Connecticut, New Jersey, Illinois and New Mexico recently repealed the death penalty. There are now 18 states without the death penalty and 7 of the states with the death penalty (including Colorado) have not carried out an execution in at least 10 years. There has been a moratorium on executions in California for more than 6 years due to concerns regarding the constitutionality of their execution procedures. And the death penalty is effectively suspended in Oregon, where the governor has imposed a moratorium on the death penalty for the duration of his service as governor. Internationally, the United States is one of only a handful of developed countries that still uses the death penalty as a form of punishment. Approximately two-thirds of countries worldwide have abolished the death penalty in law or in practice, largely due to concerns regarding human rights violations. As U.S. Supreme Court Justice Harry A. Blackmun said, "The death penalty experiment has failed.'"
"My decision to grant a reprieve to Offender No. 89148 is not out of compassion or sympathy for him or any other inmate sentenced to death," Hickenlooper says in the Executive Order. "The crimes are horrendous and the pain and suffering inflicted are indescribable. I have enormous respect for the jurors who deliberated over Offender No. 89148's case, the decision they rendered, and the amount of reflection they demonstrated in discharging their civic duty."
The order says more than 15 years have passed since that jury convened, "and we now have the benefit of information that exposes an inequitable system."
"It is a legitimate question whether we as a state should be taking lives," the order says. "Because the question is about the use of the death penalty itself, and not about Offender No. 89148, I have opted to grant a reprieve and not clemency in this case."
The Executive Order signed today will remain in effect until modified or rescinded by future Executive Order of the Governor. Offender No. 89148, meanwhile, will remain in administrative segregation.