05 May 2006

The Federal and Colorado Death Penalties

The vast majority of death penalty cases take place in the state court system. The federal civilan death penalty was held unconstitutional in 1972 along with the death penalty in every state (the last pre-1972 federal civilian execution was in 1963 for kidnapping) and reinstated in 1988 with the federal drug king-pin statute. The federal death penalty was greatly expanded in 1994.

Disposition of Federal Capital Cases

According to the New York Times:

In the 136 capital cases the federal government has brought in the last two decades, 122 convictions have been obtained, according to the Federal Death Penalty Resource Counsel Project, a group that assists lawyers defending federal capital cases. But the juries in those cases imposed death sentences only 49 times.

As of March 28, 2006, 43 prisoners are on federal death row, including 4 whose convictions or sentences have been cast in doubt by court action but not finally vacated. Twenty-one of those prisoners were sentenced in 2001 or later (i.e. during the George W. Bush administration).

There have been 3 federal executions under civilian authority in the period from 1977 to November of 2004 (two in 2001, the first in the federal system in 38 years, and one in 2003).

Three other people were removed from federal death row in that time period. Two of them had their death sentences reduced to life in prison on appeal. One of them had his sentence commuted to life in prison by President Clinton in a case where many government witnesses had recanted their testimony and the conservative 11th Circuit Court of Appeals first set aside, and then on en banc review, reinstated the death sentence in a 6-5 decision, and there was further review pending.

Federal Death Penalty Crimes

Six of those convicted, including three co-defendants in a single case in 1993, were sentenced to death based on the 1988 federal drug king-pin statute murder in the course of a drug-king pin conspiracy. One was executed in 2001, the three convicted as co-defendants await executions currently scheduled for next week, one had his sentence reduced to life in prison on appeal in 2000, and one has his sentence commuted in 2001.

The remainder of those on death row were sentenced under an expansion of the federal death penalty to include 60 different additional crimes in 1994. All but four of the federal death penalty crimes involve a homicide with some special factor aggravating the case.

There are four offenses not necessarily resulting in death to which the federal death penalty applies. They are:

Espionage (18 U.S.C. 794)

Treason. (18 U.S.C. 2381)

Trafficking in large quantities of drugs (18 U.S.C. 3591(b))

Attempting, authorizing or advising the killing of any officer, juror,or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs. (18 U.S.C. 3591(b)(2))

Everyone current on federal death row or executed since 1988 was convicted of murdering someone, or of directing a murder that was actually carried out. All but five of those on death row right now were convicted of offenses that took place in states with a death penalty.

Since 1927, all civilian federal executions have been for murder except for two federal executions for espionage (the Rosenbergs) in 1953, two federal executions for rape in 1957 (the Krulls), and four for kidnappings not resulting in death (in 1936, 1938, 1956 and 1963).

More information on the federal death penalty can be found here.

The Military Death Penalty.

In addition to those facing executions in the civilian system, there are nine people on the U.S. military's death row who got there via courts-martial, three of whom have convictions or sentences that are in doubt because of decisions made in the appellate process, but who have not finally had death sentences set aside. The last U.S. military execution took place in 1961 and was of an individual convicted of rape and attempted murder. Notably, this means that not a single military justice execution took place in the entire course of the Vietnam War. The military death penalty was held unconstitutional (for procedural flaws) in 1983 and reinstated in 1984. All of the men on military death row were convicted of an aggravated murder.

Six German soldiers were executed for sabotage not resulting in murder in the U.S. in 1942 after trial before a military commission.

Colorado and the Death Penalty

No crime committed in Colorado since it was admitted as a state has ever resulted in a federal execution. No one has been sentenced to death for a federal crime committed in Colorado since, at least, the time when the federal death penalty was reinstated. But, Timothy McVeigh, the Oklahoma City bomber and one of only three persons executed for federal crimes since 1963, was tried and convicted after a 28 day trial in Denver in 1997, a venue chosen to avoid the prejudice that might have arisen had he been tried in Oklahoma. The was no serious suggestion after his conviction that he was not guilty of the murder, although there was lingering doubt about whether there were other co-conspirators.

Colorado has had one execution since the death penalty was reinstated after 1972, which took place in 1997 when Gary Davis was executed. He confessed to the rape and murder for which he was convicted in open court during his 1987 trial (obviously, against the advice of his attorneys), and claimed to have committed 14 other rapes after he was convicted of murder.

There are currently two people on death row in Colorado (previous discussion on this blog is found here).

Nathan Dunlap was convicted in 1996 for the murder of four employees at an Aurora Chuck E Cheese’s restaurant. Dunlap's appeals have focused on his inability to fully present mitigating evidence at his sentencing hearing, his current mental health and the validity of prior convictions used as aggravating sentences justifying a death penalty sentence in his case. His final state appeal is pending in the Colorado Supreme Court (all of his appeals thusfar have ultimately failed, the status of the case in 2001 was summed up by the Colorado Supreme Court in its opinion), which he will probably then appeal to the United States Supreme Court. He will then seek habeas corpus review, first in the United States District Court for the District of Colorado, then in the 10th Circuit Court of Appeals, and finally in the United States Supreme Court.

Edward Montour Jr. was convicted in 2003 for the murder of a prison guard, on the basis of his own guilty plea while insisting upon representing himself.

He continued to represent himself in the penalty phase, presented no mitigation, and was sentenced to death by Judge King of the Douglas County District Court.

Continuing pro se, Mr. Montour then waived any post-conviction challenges and now seeks to waive any appeal other than the mandatory review by the Colorado Supreme Court. The Supreme Court has remanded the case to the District Court for determination of Mr. Montour's competency to waive his appeal, and counsel has now been appointed over Mr. Montour's objection to litigate the issue of competency.

When he plea was taken he said: "I am antisocial, homicidal and without remorse and will remain a potential threat. The state can kill me, I don't care."

Prior to 1972 there were 101 executions in Colorado (including 11 prior to Colorado being admitted as a state, and hence under federal territorial authority of some type), the last of which took place in 1967. From 1859 (when Colorado was a territory) to 1933, executions were conducted by hanging, from 1934-1967 a gas chamber was used. In 1997, the execution was carried out by lethal injection. All executions for Colorado crimes have been for murder, sometimes in connection with another serious felony such as robbery or rape.

As of March 2006, there were 676 people serving prison sentences for 1st degree murder in Colorado, all of whom would have been eligible for the death penalty based on the crime for which they were convicted (although this would not necessarily have been sought by prosecutors in every case). Some of those individuals were sentenced to death but had a sentence converted to a life sentence for reasons such as having the sentence imposed by a judge rather than a jury.

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