When Gov. John Hickenlooper this week blocked the execution of Nathan Dunlap, he called for a statewide conversation about the death penalty. His decision to reprieve the Chuck E. Cheese’s murderer came weeks after Colorado lawmakers killed a bill to abolish capital punishment on grounds that the topic needs more public debate.
But no such discussion has yet been planned yet by the politicians. In the meantime, civil rights watchdogs are hoping to advance the conversation in court by continuing to pursue a lawsuit tied to Dunlap’s execution.
“Up until two days ago, Colorado was scheduling an execution for this summer. The Governor has taken that execution off the calendar, but he has not taken the death penalty off the public agenda,” Mark Silverstein, legal director at the American Civil Liberties Union of Colorado, said Friday. “The public has an interest in learning exactly what the state plans to do the next time an execution [lands on its calendar].”
Dunlap was convicted of killing four people in an Aurora Chuck E. Cheese’s restaurant in 1993. He exhausted legal appeals this spring and was scheduled for execution in August. The ACLU sued Colorado’s Department of Corrections on Tuesday seeking access to documentation that would detail how the state planned to put Dunlap to death.
Despite Dunlap’s reprieve and the fact that neither of the state’s two other death row inmates are scheduled for execution, the ACLU’s interest in state policies and procedures still stands. The group plans to pursue its legal battle to uncover details about the training, procedures and protocols the corrections department has put in place since executing its last inmate, Gary Davis, in 1997.
Of particular concern is how a lethal injection, the state’s method of execution, would be implemented. Davis was killed 15 years ago with three drugs, including a non-lethal dose of barbiturate or anesthetic, followed by a drug that caused paralysis and then a drug that caused death by cardiac arrest. The so-called three-drug cocktail, in which the anesthetic dosage sometimes is too low and doesn’t work, has drawn medical, legal and ethical criticism in several states for causing extreme pain while the prisoner is paralyzed and enduring a heart attack.
Colorado law specifically requires lethal injection be carried out by the continuous injection of just one drug.
Concerns about the methods to be used in Dunlap’s case heightened last month when corrections officials sent a letter to several pharmacists requesting “sodium thiopental, pentobarbital, pancuronium bromide, potassium chloride, or similar drug or drugs that the CDOC can purchase.” The drug list raised questions about whether corrections officials intended to abide by the one-drug statute, prompting the ACLU to seek copies of communications between the state and pharmacies and a secret document outlining DOC’s execution protocols.
Corrections officials refused to disclose those documents. They also declined to comment about the ACLU suit after Dunlap’s reprieve other than to say they intend to conceal the identities of the pharmacists willing to provide the drugs. Officials said they wanted to protect the pharmacists’ privacy and prevent “public pressures” such as protests and boycotts that, as spokeswoman Adrienne Jacobson put it, “could interfere with our duty under the statute.”
Jacobson said her department is dedicated to carrying out the wishes of its former director Tom Clements, a death penalty opponent who was slain in March and who sought to improve relationships with the ACLU and other groups watchdogging the state prison system. She added that she “doesn’t disagree” that seeking the documents is a way to further the debate about the death penalty in Colorado.
“Still, our opinion is that the documents are restricted,” she added. “It looks like we’ll be discussing it in court.”
Continued conversation about how exactly Colorado would put inmates to death could affect the likelihood that the state’s two other death row inmates, Sir Mario Owens and Robert Ray, are ever executed. It could also affect sentencing decisions in cases in which the death penalty is being sought, cases such as the one against Edward Montour, whose guilty plea in the 2002 murder of a prison guard was tossed by a judge in April, and James Homes, the alleged shooter in last summer’s Aurora movie theater massacre.
The ACLU’s Silverstein says access to the DOC’s secret documents is as relevant as ever.
“We’re moving forward. More facts and more details about how executions are carried out will facilitate lots of conversations that need to take place about the death penalty.”
Hickenlooper’s announcement Wednesday to block Dunlap’s execution was applauded by dozens of social-justice groups, including the ACLU. Critics have derided Colorado’s capital punishment practices on legal and ethical grounds, including the fact that all three men on death row — Dunlap among them — are African American in a state with a population that’s less than 5 percent black.
“Colorado’s system of capital punishment is imperfect and inherently inequitable,” Hickenlooper said in announcing his decision. “Such a level of punishment really does demand perfection.”