The Truth Hurts: A Response to George Brauchler and Rich Orman
22 Pages Posted: 18 Apr 2017 Last revised: 30 Oct 2018
Date Written: April 14, 2017
In May of 2016, the Denver Law Review published a series of invited articles on the timely topic of the James Holmes murder trial. The Law Review solicited articles from the Defense, the Prosecution, and the Judge who participated in the Holmes case. The defense lawyers and the judge both wrote articles relating to the Holmes litigation. By contrast, the prosecutors, George Brauchler and Rich Orman, used the opportunity to write an attack on prior empirical studies of Colorado’s death penalty that we conducted. The Law Review has now offered us an opportunity to respond to the Brauchler and Orman attack on our work and our credibility.
In Part I of this brief response we reiterate what we actually did in our study - setting forth our methodology for studying Colorado’s death penalty and responding to Brauchler and Orman’s mischaracterization of our study design. In Part II, we discuss why we did what we did - elaborating on the well-established principles of Colorado and federal constitutional law that informed our study design. This Part serves as a rebuttal of the claims that our work is somehow divorced from the legal realities of state and federal law. Finally, in Part III, we reiterate our empirical findings and explain how they compel the conclusion that Colorado’s death penalty is unconstitutional. The Eighth Amendment requires an objective, statutory standard for identifying the few who can be put to death from among the many who kill; neither the purported good faith of prosecutors, the availability of appellate review, nor opportunities for a jury to grant mercy can substitute for this requirement. Because Colorado’s homicide statute does not provide an objective basis for meaningfully narrowing the class of death-eligible defendants, our state’s death penalty scheme violates the Eighth Amendment.
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