Could Colorado be #7?

Just last week, Maryland's legislature voted to repeal the death penalty, making it the sixth state in the last few years to do so. Today, I have spent the past 8 hours listening to testimony from the Colorado House Judiciary Committee on a repeal bill in that state. The last time Colorado considered repeal, just a few years ago, it failed by a single vote. Those in the know think this could have a shot this year.

I think it demonstrates the true depth of my junkie-ness that I have been listening to this all day, except for the hour or so I was driving home and stopping at the grocery store. And don't forget, this isn't even my state. Proponents of repeal testified first and spoke for hours. Their speakers ranged from clergy members to exonerated former death row inmates to corrections officials to defense attorneys to prosecutors to victims and their families. They spoke of the cost, they spoke of the emotional toll (a point eloquently made by the corrections official, who lamented that it's quite a thing to ask of prison guards that they put people to death), they spoke of the arbitrariness, the racial disparities.

On a depressing day (why is it snowing? during March Madness??), these speakers made me feel better about the world by standing up against state-sponsored murder. I especially appreciated the comments by victims who begged not to be put through the emotional roller coaster of a death penalty trial because I've long thought it wasn't fair to victims' families, but that isn't always taken well when uttered by a defense attorney. I even wanted to drive to Colorado and kiss one of those DAs who spoke against the death penalty.

And for the past three hours or so, we've been into the opponents, mostly prosecutors. And now I'm mad. (Other than feeling the first thrill of March Madness as Robert Morris beat Kentucky. Yay March upsets! As long as my Jayhawks aren't the upset ones.) The first prosecutor decried those proponents who had "casually" complained about the racism that plays into the death penalty. Everyone on death row in Colorado is black, so I'm not sure his righteous indignation on that point was justified. (Nor did a couple of the committee members.)

One prosecutor insisted we would never get a defendant to plead to murder again if the death penalty were repealed. (One wonders, then, how the 18 states without a death penalty manage to get guilty pleas to murder charges...)

A prosecutor insisted that these super dangerous criminals who we won't be able to kill will get out into general population because we can't, we CAN'T, keep them in solitary confinement forever. (One wonders, then, who all those specially-designed supermax prisons around the nation, including Colorado, house...)

Prosecutors are mindlessly repeating the facts of their most horrific cases, as if they didn't hear any of the earlier testimony by families who were so embittered upon being told that their loved ones' murders weren't that heinous. They argue against the death penalty because they don't think the idea of deciding who the worst of the worst are is fair to those people whose killers are deemed to be not that bad. But when the law and reason isn't on your side, you always argue the facts, so that seems to be what a few of these prosecutors are doing.

And as I'm typing, this prosecutor just said, "The Ring decision was a real technicality." Umm, the Ring case, Ring v. Arizona, was based on the Sixth Amendment right to a jury trial. Is the Sixth Amendment right to a jury trial a technicality?

These prosecutors are insisting that they have the most narrow, stringent death penalty statute anywhere in the nation, which is a laughably false statement. Almost every single intentional murder in Colorado is death-eligible. Living in a state with a truly narrow statute, I can assure these prosecutors that their statute would encompass every single first-degree murder case I've ever worked on, the vast majority of which could not be capital in Kansas.

They're insisting that abolitionists grossly overstate the number of exonerations. They insist that the last appellate court to consider the Troy Davis case reaffirmed his clear guilt, rather than finding he couldn't prove innocence. They insist that we get plenty of appeals without acknowledging that they fight us every step of the way. Then they insist that the fact that some guys get out after 15-20 years of those appeals (that they've fought every step of the way) shows that our system works! They don't dare to mention Cameron Todd Willingham or Carlos DeLuna. One of them even cited as compelling authority the concurrence Justice Scalia wrote in Kansas v. Marsh wherein he went on a wholly irrelevant tangent lambasting the abolitionists who cry  out about the risks of executing the innocents. Never mind that the math in Scalia's concurrence has been widely lambasted by anyone who can do math.

The opponents of repeal have to resort to lies, or at least gross exaggerations, to make arguments. While I was feeling kindly toward those two prosecutors who testified in favor of repeal, this last string of guys has restored order.

I hope that this really does have a chance in Colorado this year. The mere fact that they've accepted this much testimony makes me think it does. Colorado should be better than this, better than conflating vengeance and justice. The state should use its resources better. The state should stop tinkering with the machinery of death. And I should really stop listening to these opponents before I have an aneurysm.