Fifteen years after the Chuck E. Cheese massacre in Aurora, the shooter is still on death row. Nathan Dunlap's only hope that his life might be spared is Colorado Governor Bill Ritter.
Compared to states like Texas and Florida, it's incredibly difficult to secure a death sentence in Colorado. Until recently, juries in Texas and Florida were given an unbalanced choice: Sentence a heinous murderer for an execution, or he'd be up for parole eventually. They often chose death. Texas legislators refused to pass life-without-parole laws for years because capital punishment was an easy and popular way to prove they were tough on crime. In the 1990s, Texas, under the leadership of then-Governor George W. Bush, executed more than 150 people; during the past 30 years, the state has been responsible for more than a third of the executions in the United States.
Colorado has been far more judicious in its application of capital punishment since the U.S. Supreme Court confirmed that the death penalty was constitutional in 1976, after a brief nationwide ban. While legislators have tinkered with the law in an attempt to increase executions, Colorado juries have been given the option to sentence a murderer to life in prison without parole since 1979. Juries like this option: They don't have to choose between life and death. With a criminal forever locked behind bars, jurors can be secure knowing that society is safe from harm, and that they did justice.
Currently, there are only two men on Colorado's death row: Nathan Dunlap and Sir Mario Owens, both sentenced in Arapahoe County. Owens got a death sentence in May for murdering a witness scheduled to testify against a friend of Owens' in his drug trial. (He also killed the witness's fiancée.) Owens has been on death row for months; Dunlap has been there for 12 years, watching only one inmate, Gary Lee Davis, be executed, while all of the other death-marked inmates have been spilled back into life terms.
The reasons why one heinous murderer is sentenced to death while another heinous murderer is sentenced to life has less to do with the facts of the cases and more to do with happenstance and the prevailing political winds. Consider the death sentences prosecuted in Denver by DA Bill Ritter, who reserved capital-punishment trials for cases where he "reasonably believed we could get it." Out of more than 600 murders in Denver between 1993 and 2004, Ritter prosecuted only seven death-penalty cases for multiple homicides or a rape/murder combination. All of the defendants faced overwhelming evidence that they had committed horrible murders. Still, none of those men will be executed.
Jon Morris was the man that Ritter announced a trial date for during his reelection campaign. Morris had kidnapped, raped, and murdered a five-year-old girl of family friends in 1995 and confessed to police that he put her dead body in a Dumpster. Morris' defense team, led by public defender Sharlene Reynolds, argued that because Morris had suffered childhood sexual and physical abuse, he wasn't mentally stable. Reynolds would use a similar argument to later get Nathan Thill a lifetime sentence. Though the jury ruled that Morris was sane at the time of the murder, they were convinced he hadn't intended to kill the young girl. He was given a life sentence.
A few years later, Ritter tried Jacques Richardson, a serial rapist who had hog-tied a 34-year-old woman named Janey Benedict during a robbery in 1997. Benedict suffocated from the ties. Richardson confessed. Two years later, jurors ruled the murder was unintentional, and Richardson was given a life term.
In other cases, Ritter instructed his prosecutors to use the mere threat of a death-penalty trial in order to get a conviction. Frightened, four men accused of murder—Cong Van Than, Omar Ramirez, Samnang Prim, and Edward Robert Brown—pleaded guilty to first-degree murder. Those tactics weren't unusual: Across the state, prosecutors were happy to plea-bargain and avoid the cost, stress, and possible public failure of securing a death sentence. District attorneys realized that while the public, in theory, was eager to press executions, the reality was that such a reaction was more visceral than just, and that folks in the jury boxes were far more reluctant to exact an eye for an eye, a life for a life.
Colorado legislators, eager to please the vengeance-happy public, hadn't been sated. Denver wasn't sentencing anyone to death, and the suburbs and rural parts of the state weren't doing much better. So, in 1995, at the peak of capital punishment's groundswell, lawmakers attempted to ramp up executions. With the explicit public support of Ritter and other district attorneys around the state, legislators created three-judge panels—not the juries that tried the case—to determine death sentences. Still, legislators were stymied: even judges wouldn't give death orders. A three-judge panel refused to execute Donta Page—who brutally raped, robbed, and stabbed 24-year-old Peyton Tuthill to death in 1999—claiming that his murder lacked "diabolical frenzy or hellish subhuman behaviors." Page received a life sentence. The politics of killing and the law continued to collide. In 2002, the U.S. Supreme Court found that the death-sentencing scheme of the three-judge panels cooked up by the Colorado legislators was unconstitutional, because those panels do not represent a trial by peers. Five Colorado men on death row had their sentences vacated; five murderers destined for lethal injection received a reprieve because they had committed their crimes while the legislature was tampering with the law.
As DA, Bill Ritter kept his word to Romer. He tried death-penalty cases, but rarely, and only when he thought he could get the ultimate conviction. As Ritter's tenure as district attorney stretched into the 21st century, death-penalty cases became increasingly rare in Colorado. Prosecutors had tried about a half-dozen death-penalty cases annually in the late 1980s through the late 1990s, but by the time Ritter stepped down in 2004, the state average had dropped to one or two a year. Of course, those statistics provided no comfort to Dunlap.