OPINION -- A response to the recent criticism
The responsibility for deciding whether a person convicted of capital murder should be sentenced to life in prison or be executed was taken from jurors in 1995 and placed into the hands of three-judge panels. Since then, five sentencing hearings have been held. Four of those hearings resulted in life sentences; one resulted in a death sentence. In two of the cases, the three judges were unanimous that a life sentence was appropriate and in two other cases a 2-1 vote resulted in the imposition of life sentences. Vincent Carroll [in a Rocky Mountain News editorial in July] criticized the two judges who voted for life sentences in these last two cases.
Carroll's editorial argued that Colorado judges are "subverting" the state's death penalty law by not sentencing those two defendants to death and "are dropping hints that they are not going to enforce" Colorado's death penalty law. His conclusion is that, because of the actions of the judges, "most first-degree murderers have no need to fear the death penalty."
The plain truth is that Colorado's prosecutors do not seek the death penalty except in rare cases. The prosecutors know what Mr. Carroll apparently does not: a death sentence is simply not appopriate for most murderers. Thoughtful proponents of the death penalty recognize that this ultimate sanction should be reserved for that small group of people who stand out, even among their fellow murderers, as particularly blameworthy.
The editorial takes issue with the reasoning of a Denver judge that a person who is involved in a murder, but didn't "deliver the fatal wounds," is less culpable than one who does deliver those wounds. Carroll claims, "The law says no such thing." In fact, criminal responsibility has always been based on two things: the commission of an act and a particular state of mind. Most people's moral compasses also recognize differences in blameworthiness based on the degree of participation of the criminal. That the judge factored this basic principle into his decision was perfectly proper.
The editorial objects to the conclusion of a Pueblo judge that a desire for vengeance should not influence the decision whether a person should be executed or spend the rest of his life in prison. Our law tells us that we should strive to not let passion sway us when we try to mete out justice. One of the reasons prosecutors asked the legislature to take the sentencing decision away from citizens was their belief that citizens were improperly swayed by emotional appeals. Judges, they argued, would decide cases based on facts, not emotions. To castigate the judge for doing exactly what he was asked to do is patently unfair.
Carroll also takes issue with the same judge's conclusion that a clean criminal record is a factor that supports a life sentence. One of the most fundamental principles of any fair sentencing scheme is that every sentence should depend, in part, on the history of the person being sentenced. Both our law and our common sense recognize this. Our sentencing statute explicitly deems relevant the criminal record of the person being sentenced. All of the judges involved in every capital sentencing case evaluate the defendant's criminal record. All of the judges in this particular case found the absence of a criminal record to be a mitigating factor.
Mr. Carroll concludes that the two judges who voted for life sentences were not being honest, that their votes were based on opposition to the death penalty, rather than on analysis. But it is Mr. Carroll's column that is based on disagreement with the outcome, not on any fair analysis.
A person who supports the death penalty may believe that a particular defendant does not deserve a death sentence without becoming an opponent of the death penalty. To decide that a life sentence is appropriate in a particular case does not make a judge "subversive" or "dishonorable."
These judges carried out the most difficult job a judge can possibly undertake to reach the result they felt best served justice. To disagree with their conclusions is one thing; to question their integrity, and to engage in an unfair attack on the process, breeds disrespect for the system and undercuts law and justice just as surely as do the criminals themselves.
-- H. Patrick Furman
Editor's Note: An edited version of this opinion originally was published as a guest editorial in the Rocky Mountain News and is reprinted with the permission of the author.
Coloradans Against the Death Penalty Newsletter -- Fall 1999
See the Web site's News section for more articles and information about the death penalty.
