Make no mis­take, Brauch­ler is choos­ing the death penalty

The Denver Post - - PERSPECTIVE - By Sam Kamin and Justin Marceau Sam Kamin and Justin Marceau are pro­fes­sors at the Univer­sity of Den­ver Sturm Col­lege of Law who have writ­ten ex­ten­sively about the death penalty.

All three peo­ple on Colorado’s death row are black men who were pros­e­cuted in Ara­pa­hoe County, Colorado’s 18th Ju­di­cial District.

Ge­orge Brauch­ler, the cur­rent District At­tor­ney in the 18th, an­nounced this month that he would seek the death penalty against another black man, Bran­don John­son.

Dis­cussing his de­ci­sion to seek the death penalty in this case, Brauch­ler dis­claimed re­spon­si­bil­ity for the de­ci­sion: “This is Colorado law. This isn’t my law.” Through this state­ment and oth­ers like it, Brauch­ler is seek­ing to de­flect re­spon­si­bil­ity for this de­ci­sion by im­ply­ing that he has no choice un­der Colorado law but to seek death in this case. Noth­ing could be far­ther from the truth. In 2012 we pub­lished a study ex­am­in­ing ev­ery homi­cide in Colorado for a twelve year pe­riod. Among our stark­est find­ings was a show­ing that the vast ma­jor­ity of mur­ders in Colorado could be charged as death penalty cases but that van­ish­ingly few ac­tu­ally were. In­deed, we showed that in ap­prox­i­mately 90 per­cent of all first de­gree mur­der cases the prose­cu­tor could, if he or she chose to do so, seek the death penalty.

The United States Supreme Court has man­dated that the de­ter­mi­na­tion of who is el­i­gi­ble for the death penalty be made ac­cord­ing to leg­isla­tive rules rather than be­ing left to the un­bounded choice of a sin­gle per­son or of­fice.

We con­cluded that Colorado’s statute fails to live up to this con­sti­tu­tional re­quire­ment be­cause it is so open-ended that it im­poses es­sen­tially no check on pros­e­cu­to­rial dis­cre­tion. Our study fur­ther showed — as many stud­ies be­fore it have — that whether death is sought in a par­tic­u­lar case de­pends to a dis­turb­ing de­gree on the race of the de­fen­dant and the ge­o­graphic lo­ca­tion where his crime was com­mit­ted. We were re­minded of Jus­tice Wil­liam O. Dou­glas’ warning in Fur­man vs. Ge­or­gia that dis­cre­tionary death penalty statutes “are preg­nant with dis­crim­i­na­tion and dis­crim­i­na­tion is an in­gre­di­ent not com­pat­i­ble with the idea of equal pro­tec­tion of the laws that is im­plicit in the ban on ‘cruel and un­usual’ pun­ish­ments.”

Brauch­ler clearly un­der­stands the im­por­tant role that dis­cre­tion plays in our cap­i­tal sys­tem. He has pre­vi­ously pub­lished a pa­per ex­claim­ing that he is “prodeath penalty . . . in fa­vor of the po­ten­tial use of the death penalty as an ex­er­cise of pros­e­cu­to­rial dis­cre­tion.”

The de­ci­sion to seek the death penalty against Bran­don John­son was made by Brauch­ler and his of­fice — not Colorado law — and it will cost the state and county mil­lions of dol­lars whether the death penalty is ul­ti­mately im­posed or not. Brauch­ler has tried to de­flect re­spon­si­bil­ity by stat­ing that the de­ci­sion to seek the death penalty was largely out­side of his hands: “This is what Colorado has said makes for an ag­gra­vated mur­der, not what I’ve said.”

But the re­al­ity is oth­er­wise: Colorado law is ag­nos­tic on the ques­tion of whether a death sen­tence is ac­tu­ally sought in a par­tic­u­lar case; all our statute does is set forth the pre­con­di­tions for a death pros­e­cu­tion. It is up to the prose­cu­tor to de­ter­mine whether to seek death in an in­di­vid­ual case.

Imag­ine if Brauch­ler were cor­rect and that Colorado law man­dated that pros­e­cu­tors seek the death penalty in ev­ery case where that pun­ish­ment is avail­able.

If ev­ery (or even just most) “ag­gra­vated” mur­ders re­quire the pros­e­cu­tion to seek the death penalty, then there would have to be dozens of death penalty pros­e­cu­tions per year in our state, and there would have been hun­dreds of death penalty pros­e­cu­tions over the past quar­ter cen­tury rather than just a cou­ple of dozen. This in­creased use of our cap­i­tal statute would have cost the state tens of mil­lions of dol­lars (imag­ine ten or more James Holmes tri­als per year, ev­ery year).

Such a rate of cap­i­tal pros­e­cu­tion is not palat­able to main­stream Coloradans, and thank­fully it is not at all what Colorado

law re­quires.

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