As the legal proceedings begin for alleged mass murderer James Holmes, the consensus of the legal community is that prosecutors will ask for the death penalty. As former Denver prosecutor Craig Silverman told Reuters:
"If James Holmes isn't executed, Colorado may as well throw away its death penalty law."
This depends, of course, on a number of factors, including whether Holmes will plead insanity. If he does and he is found insane by the court, the death penalty is off the table and he will instead be held for psychiatric treatment.
If he does not plead insanity, or his insanity plea is rejected, Colorado law provides for death penalty as punishment if certain aggravating factors exist. Based on the facts reported about the rampage so far, Holmes' actions may include at least the following statutory aggravating factors:
- The defendant committed the offense while lying in wait, from ambush, or by use of an explosive or incendiary device or a chemical, biological, or radiological weapon.
- The defendant committed the offense in an especially heinous, cruel, or depraved manner.
- The defendant unlawfully and intentionally, knowingly, or with universal malice manifesting extreme indifference to the value of human life generally, killed two or more persons during the commission of the same criminal episode.
- The defendant intentionally killed a child who has not yet attained twelve years of age (the youngest victim was six years old).
Clearly, if the prosecutors wish to push for the death penalty, they have legal standing to do so. Historically, and especially recently, Colorado has used the death penalty sparingly; the most recent execution was in 1997, of Gary Davis for rape and murder. Before him, it had been 30 years since Colorado had performed an execution.
Since our first execution in 1859, Colorado has executed 102 men (no women) for murder. In fact, in 1897, Colorado abolished the death penalty altogether. But as University of Colorado Professor Michael Radelet, who wrote a comprehensive history of the death penalty in Colorado, notes:
"[A]ngry mobs viewed the abolition of the death penalty as a license to resort to lynching."
To curb the vigilante justice of the community, Colorado reinstated the death penalty in 1901. Through the years, support for the death penalty has ebbed and flowed, and legislation, both federal and statewide, has often limited its use. Currently, Colorado has three inmates on death row.