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Death Eligibility in Colorado: Many are Called, Few are Chosen

48 Pages Posted: 31 Jan 2013 Last revised: 13 Aug 2015

Justin F. Marceau

University of Denver Sturm College of Law

Sam Kamin

University of Denver Sturm College of Law

Wanda Foglia

Rowan University

Date Written: January 31, 2013

Abstract

This article reports the conclusions of an empirical study of every murder conviction in Colorado between January 1, 1999 and December 31, 2010. Our goal was to determine: 1) What percentage of first degree murderers in Colorado were eligible for the death penalty; and 2) How often the death penalty was sought against these killers. More importantly, our broader purpose was to determine whether Colorado’s statutory aggravating factors meaningfully narrow the class of death eligible offenders as required by the Constitution.

We discovered that while the death penalty was an option in approximately ninety two percent of all first degree murders, it was sought by the prosecution initially in only three percent of those killings, pursued all the way through sentencing in only one percent of those killings, and obtained in only 0.6 percent of all cases.

These numbers compel the conclusion that Colorado’s capital sentencing system fails to satisfy the constitutional imperative of creating clear, statutory standards for distinguishing between the few who are executed and the many who commit murder. The Eighth Amendment requires that these determinations of life and death be made at the level of reasoned legislative judgment, and not on an ad hoc basis by prosecutors. The Supreme Court has emphasized that a State’s capital sentencing statute must serve the “constitutionally necessary function . . . [of] circumscrib[ing] the class of persons eligible for the death penalty” such that only the very worst killers are eligible for the law’s ultimate punishment. Colorado’s system is unconstitutional under this standard because nearly all first degree murderers are statutorily eligible to be executed.

Suggested Citation

Marceau, Justin F. and Kamin, Sam and Foglia, Wanda, Death Eligibility in Colorado: Many are Called, Few are Chosen (January 31, 2013). University of Colorado Law Review, Vol. 84, 2013; U Denver Legal Studies Research Paper No. 13-08. Available at SSRN: https://ssrn.com/abstract=2210040 or http://dx.doi.org/10.2139/ssrn.2210040

Justin Marceau (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Sam Kamin

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6125 (Phone)
303-871-6711 (Fax)

HOME PAGE: http://law.du.edu/index.php/profile/sam-kamin

Wanda Foglia

Rowan University ( email )

201 Mullica Hill Road
Glassboro, NJ 08028
United States

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