Faced with a decision to allow the execution of killer Nathan Dunlap or grant him clemency, Gov. John Hickenlooper chose to do neither. Instead, he granted an extraordinary “temporary reprieve” that likely means Dunlap won’t face execution as long as Hickenlooper is governor.
With Colorado’s first execution in 15 years set just three months away, Hickenlooper on Wednesday issued an executive order that angered victims’ families, ignited a political firestorm over capital punishment in Colorado and gave hope to death penalty opponents.
“Colorado’s system of capital punishment is imperfect and inherently inequitable,” Hickenlooper said after announcing the reprieve. “Such a level of punishment really does demand perfection.”
While the reprieve is “temporary,” Hickenlooper said at a news conference that it is “highly unlikely” he will reconsider the death penalty for the man convicted of killing four people in an Aurora Chuck E. Cheese’s restaurant in 1993.
In a Capitol rotunda crowded with reporters and observers, Hickenlooper stood alone at a lectern and began his public statement by saying he had just finished a “difficult” call to families of Dunlap’s victims.
Many of those families were disappointed and angry at his decision.
“The knife that’s been in my back … was just twisted by the governor,” a visibly upset Bob Crowell said after the conference call with the governor. Crowell’s daughter, Sylvia, was one of those Dunlap killed.
During the more than 20-minute call, families of other victims could be heard shouting at Hickenlooper.
Attorney General John Suthers issued a statement that said Hickenlooper “has proven to be uncomfortable confronting the perpetrators of evil in our society.”
“The governor is certainly entitled to these views, but granting a reprieve simply means that his successor will have to make the tough choice that he cannot.”
Arapahoe County District Attorney George Brauchler, whose predecessor Jim Peters prosecuted Dunlap in 1996, blasted Hickenlooper for what he called his “refusal to make any hard decision today.”
“This is inaction. This is shrugging. This is not justice,” Brauchler said as he stood on the steps of the Capitol moments after Hickenlooper’s news conference. He said the execution of Dunlap should be a “no-brainer.”
He called Hickenlooper Dunlap’s “guardian angel” and said “one person in this goes to bed with a smile on his face tonight, and that is Nathan Dunlap.”
Dunlap is “grateful” he no longer faces imminent execution, said his lawyer, Phil Cherner. But Cherner said his client is not smiling.
“This is not a day to celebrate. It’s a powerfully good day for him, but there are four families who lost victims, who have grieved and continue to grieve.”
Earlier this month, Arapahoe County District Judge William Sylvester set the week of Aug. 18 for Dunlap’s death by lethal injection. Soon afterward, Dunlap’s attorneys asked the governor to grant clemency and commute Dunlap’s death sentence to life in prison without parole.
His attorneys argued Dunlap, a victim of ongoing abuse as a youngster, suffers from serious bipolar disorder and was in the grip of a manic episode when the killings occurred.
In the weeks since, Hickenlooper met with dozens of advocates on both sides of the issue.
Sandi Rogers, whose 17-year-old son, Ben Grant, was one of Dunlap’s victims, said she met with the governor and told him that “19 years, five months and 23 days — it was 23 days when I met with him — was long enough,” for the case to drag on.
“This is a cold-blooded killer. He planned it, and he executed it, and now, 19 years later, he still hasn’t paid for it. That’s just wrong,” Rogers said last week.
“The thought of (Dunlap) being granted clemency and being put in the general population where he can hang out with his homies scares me to death. It scares me to my core,” Rogers said.
Hickenlooper said one reason he chose a reprieve and not full clemency was so that Dunlap would have to remain segregated from the rest of the prison population.
Before reaching his decision, the governor also heard impassioned pleas to spare Dunlap’s life from an assortment of groups, from the NAACP and the Latino Forum to the Colorado Council of Churches. Even former Archbishop Desmond Tutu called the governor on Dunlap’s behalf.
The Latino Forum and the NAACP argued that the death penalty is disproportionately imposed on African-Americans or Hispanics.
All three of the men now on death row in Colorado are African-American, and all three were prosecuted in Arapahoe County.
Brauchler has called allegations that race plays a role in death penalty decisions “outrageous.”
His office is seeking a death sentence for two white men: Edward Montour, who is facing retrial in the killing of a prison guard, and accused Aurora theater shooter James Holmes.
Dunlap was 19 when he went to the Chuck E. Cheese’s where he once worked and killed Grant, Crowell, Colleen O’Connor, 17, and 50-year-old Margaret Kohlberg, all employees who were closing the restaurant for the night.
He also shot and seriously wounded a fifth employee, Bobby Stephens, and made off with about $1,500 in cash and game tokens.
Dunlap is one of three men on death row in Colorado.
The other two, Sir Mario Owens and Robert Ray, were convicted in the 2005 murder of Javad Marshall-Fields and his fiancée, Vivian Wolfe.
The governor said his reprieve should have no effect on Owens and Ray because their appeals are just beginning. He predicted any decision on clemency for them would come long after he leaves office.
In issuing the executive order, which he and Dunlap’s attorneys say is a first for Colorado, Hickenlooper said the decision weighed heavily on him.
In that order, he called Dunlap’s crimes “horrendous” — although he rarely referred to Dunlap by name because, he said, “I don’t think he needs anymore notoriety” — and declared his respect for the jurors who handed down the death sentence.
But more than 15 years have passed since that decision, years that have provided “the benefit of information that exposes an inequitable system,” Hickenlooper’s order states.
At his news conference, he called Colorado’s death penalty system arbitrary and imperfect.
He also said the state is “not immediately equipped to carry out a death sentence” because the drugs required for lethal injection are not readily available.
“It is a legitimate question whether we as a state should be taking lives,” the order says. “Because the question is about the use of the death penalty itself, and not about Offender No. 89148, I have opted to grant a reprieve and not clemency in this case.”
The order said the reprieve would remain in effect unless modified or rescinded by a future executive order.
Though he said he once believed otherwise, the governor said many studies have shown the death penalty is not a deterrent.
Cherner, Dunlap’s attorney, said it appears “the governor has sort of climbed into the cockpit” to steer Colorado toward repealing the death penalty.
Hickenlooper sent those signals weeks after helping kill a bill that would have repealed the death penalty in Colorado.
During the legislature session, Dan Schoen, executive director of the Colorado Criminal Defense Bar, stormed out of a committee hearing, livid at what Hickenlooper had done.
But Wednesday, Schoen triumphantly waved a fist in the air as he read the order.
“I’m very appreciative of all the work of the governor and the activists,” he said. “As long as the death is on the table it’s our duty to fight it.”
Brauchler wouldn’t comment on whether Hickenlooper’s actions will affect his pursuit of the death penalty against Holmes. But in general, he said, “It does change the dynamic of how you would speak to victims” about that sentence as an option.
“If there was ever a decision that could politicize the death penalty, this was it,” he said.
Karen Augé: 303-954-1733, kauge@denverpost.com or twitter.com/karenauge
Staff writers Kurtis Lee and Jordan Steffen contributed to this report.
What they are saying
“We have a chicken governor, making us a chicken state, inviting all would-be murderers to come to Colorado.”
Bob Crowell, whose daughter, Sylvia, was among the victims
“This executive order will stand until it’s retaken, but I can tell you, having spent this much time on it and put this much thought into it, I think it highly unlikely that I will reconsider.”
Gov. John Hickenlooper
“The governor, by refusing to make any hard decisions today — whether in carrying out Dunlap’s sentence or conclusively granting clemency — has only guaranteed suffering and delayed justice for the victims’ loved ones for years to come.”
Attorney General John Suthers
“One person will go to bed with a smile on his face tonight, and that’s Nathan Dunlap, and that’s due to one person: Gov. Hickenlooper.”
Arapahoe County District Attorney George Brauchler
“I wouldn’t want to be in his shoes for anything in the world. What an incredible decision he has to make.”
Jodie McNally-Damore, mother of victim Colleen O’Connor
“For Mr. Dunlap, justice is life.”
Phil Cherner, attorney for Nathan Dunlap
