A new Colorado law that removes death-penalty decisions from the hands of jurors is set for its first test this month when a three-judge panel chooses whether convicted murderer Robert Lee Riggan should live or die.
The law - actually a revision of the state's death-penalty statute - is a controversial attempt to create a "more rational process" in the sentencing of capital cases. Legal authorities nationwide, from the Supreme Court down, have long criticized the death penalty as being too often applied capriciously. And the blame is often laid upon the unpredictability of juries.
At the heart of the debate is the thorny question of how much control government should have over decisions of life and death. And for the same reason prosecutors favor the revised statute, defense lawyers oppose it: It is expected to result in more death sentences in the state.
A burden or a right?
Backers of the law insist the very gravity of a death-penalty decision makes it more properly the domain of judges. "Most jurors have never done anything like this before. They have no context or background in making this kind of decision," says Richard Westfall, solicitor general in the State Attorney General's Office.
But critics see it as a slap in the public's face. "The whole point of a jury is that it will act as the conscience of the community," says David Lane, a Denver criminal-defense lawyer who specializes in death-penalty cases. "The legislature has taken away the most important decision a jury can make."
Historically, juries in United States courts have decided both the question of guilt and the sentence in death-penalty cases - a decision that must be unanimous. But some states, including Arizona, Montana, and Idaho, require judge sentencing in capital cases once jurors have voted on a defendant's guilt, taking a sort of tag-team approach. In Florida, Alabama, Indiana, and Delaware, juries recommend a sentence of life or death, but the trial judge may overturn it - and often does.
Watching Colorado's experiment
With a system previously in place only in Nebraska, Colorado now will hand sentencing to a panel consisting of the trial judge and two more judges selected randomly by computer. Although the panel's decision also must be unanimous, many believe that getting one of 12 citizens to say "nay" is easier than getting one of three judges to oppose death. They expect the number of death sentences to rise. And as the process is tested here, other states are watching closely.
"I think Colorado will be the experiment because it's been one way for a long time, and now we'll see it a different way," says Richard Dieter, director of the Death Penalty Information Center in Washington. There are currently just three death-row inmates in Colorado, and there's been only one execution since 1967.
Prior to the revision of Colorado's death-penalty law in 1995, there were typically one or two death-penalty cases a year. Today, there are about 10 such cases pending. That fact alarms defense lawyers. "Murders haven't gone up, but they are seeking the death penalty now on cases they would not have before," says Mr. Lane.
Supporters of the law agree capital convictions may well increase under the new system. But they stress this is not their goal. "What we're trying to do is get rid of the irrationality in the process," says Mr. Westfall.
Opponents aren't convinced. "What they're saying, essentially, is that citizens are irrational," says Nathan Chambers, who is representing Mr. Riggan in the sentencing phase that goes to a panel of three judges Dec. 15.
Defense lawyers are equally concerned judges may bow to political pressures. "Any judge who votes for life when the prosecutors are seeking death is going to get blasted for being soft on crime," says Lane. "Judges will make political decisions; jurors will not." In Colorado, judges must be retained by a public vote at regular intervals.
But there's no evidence judges will impose death sentences to score points, says Kevin Reitz, a criminal-law professor at the University of Colorado in Boulder.
"I don't want to be naive and say that judges never think of political pressures. But I think most judges are trying to do the right thing," Mr. Reitz says. "I would suspect that judges in Colorado are not going to behave much differently than jurors."
He also notes that in states with judge sentencing in capital cases, death-row populations are not much different than in the 33 states that still sentence by jury.
Kathy Sasak, assistant district attorney in Jefferson County, where Riggan is being tried, says some judges are "morally and philosophically opposed" to the death penalty, and they aren't screened out the way jurors with such views would be.
While polls suggest that more than 50 percent of Americans support capital punishment, opponents often characterize that support as "a mile wide and an inch deep." They say Colorado juries' reluctance to impose death penalties reflects widespread ambivalence toward capital punishment.
Yet prosecutors are of the mind that even stalwart supporters of the death penalty may balk at casting a vote of death.
"It's a heck of a civic responsibility," says Ms. Sasak.
While the public seems to support the death penalty, "when we'd call 12 people in to make that decision, they didn't want to be the ones to impose it," she says. "If you're going to have a law, then you should enforce it as best as possible. It was our feeling that this decision was an incredible burden to place on citizens."
Still, some consider that burden appropriate: "It should be difficult" for a jury to decide a defendant's fate," says Mr. Dieter. "This is killing human beings."
For Colorado, the Robert Riggan case is another first. A jury convicted him of felony murder but not of an intent to kill. (A woman he sexually assaulted died subsequently as a result of injuries, the jury found.) Prosecutors here have never before sought a death sentence without the finding of intent to kill.
Although nothing in the law prevents them from doing so, Mr. Chambers says "they are only trying for the death penalty in this case because it won't be going to a jury."