Make no mistake, Brauchler is choosing 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.