AURORA | Almost 20 years after he gunned down four people at an Aurora Chuck E. Cheese’s, Nathan Dunlap is running out of options.
The condemned killer’s execution is set for August. His court appeals are essentially exhausted. Now, the 38-year-old’s only hope for avoiding lethal injection is Colorado Gov. John Hickenlooper, who is considering Dunlap’s clemency request.
The life-or-death decision leaves Hickenlooper with plenty of moral and legal factors to consider, details he has said make the decision the toughest of his tenure. But there is another element the governor has to worry about as he decides whether Dunlap should live out his days in prison or be killed in three months — and that’s the politics inherent in an emotional and controversial decision like this.
“There is a sense that a wrong move on this power can be damaging to your career,” said Richard Dieter, executive director of the Death Penalty Information Center.
Since the U.S. Supreme Court reinstituted the death penalty in 1976, governors have rarely granted clemency. In all, 273 condemned killers have been spared via clemency, but Dieter pointed out that the bulk of those — 187 in total — came from Illinois, where Gov. Pat Quinn scrapped the state’s death penalty amid questions about its fairness and granted clemency to everyone on death row.
Colorado is one of 13 states where clemency decisions are squarely placed on the governor’s shoulders. Hickenlooper won’t get a recommendation from the parole board — binding or otherwise — that will help him make the decision. Five states use clemency boards, eight states require a recommendation of clemency from a board before a governor could grant the reprieve, and nine states offer a non-binding recommendation to their governors.
“The decision will always be his; the weight will always be his,” Dieter said.
Dieter said executions can become politicized. In the 1992 presidential race, Bill Clinton, then governor of Arkansas, left campaigning in New Hampshire, a vital primary state, so he could go home and deny clemency to a condemned killer.
Clinton didn’t have to go back to Arkansas to deny clemency, Dieter said, but by doing so he drew more attention to the case and his support of capital punishment.
Dieter said governors take into account a wide array of factors when they make a clemency decision. In a Missouri case, the governor there spared a prisoner because the pope was in town at the time of the scheduled execution. And while they might not like to admit it, politics is likely one of those factors, he said.
“I can’t imagine that these kinds of considerations don’t weigh,” he said.
The political lens through which Hickenlooper’s decision is viewed was on display last week in letters Arapahoe County prosecutors sent to the governor urging him to deny Dunlap’s request for mercy.
In their package, prosecutors included several letters, including one from the jury foreman in the Robert Ray case, the most-recent death sentence in Colorado.
The foreman, whose name was redacted from the letter, urged Hickenlooper to let stand the decisions Dunlap’s jury made 20 years ago but also tied the decision to some of Hickenlooper’s controversial political stances, specifically gun control.
“After you reduced freedoms I had before, and told me that I can’t be trusted with more than fifteen bullets, are you now going to say that the mass shooter wins? This was Aurora’s original mass shooting. Now is your chance to show you were serious about mass shootings in Colorado, and not merely offering up my state as some sort of gun control trophy,” he wrote.
In Hickenlooper’s case, the decision on whether to spare Dunlap’s life will likely come later this summer, a little more than a year before Hickenlooper seeks a second term as governor.
Hickenlooper has said the decision is one of the toughest he has faced as governor, but other than that he hasn’t offered many hints about which way he is leaning. Several of Hickenlooper’s closest advisers oppose the death penalty, but he reportedly planned to veto a repeal of the death penalty if the bill reached his desk during the recently completed legislative session.
Eric Brown, a spokesman for the governor, said Hickenlooper is still talking to “people on all sides” of the issue, and doesn’t have a time-line for the decision. He declined to comment on what factors the governor is considering as he weighs the decision.
If Hickenlooper opts to spare Dunlap, Republicans say they are poised to hammer the governor with such a call during the 2014 campaign. Republican state Sen. Greg Brophy, who is viewed as a possible challenger to Hickenlooper in 2014, said there would an uproar if Hickenlooper steps into the Dunlap case.
“That is interjecting his personal views into the justice system, and I just don’t believe that is appropriate,” Brophy said.
If the governor does grant Dunlap clemency, Brophy said Republicans would definitely make a campaign issue out of it.
Several polls show attitudes toward the death penalty have changed in recent years. A national Gallup poll in December 2012 found 60 percent of people supported the death penalty, down from 80 percent 20 years ago. And when asked to choose between execution and life in prison without the possibility of parole, respondents were evenly split.
In Colorado, the death penalty may be even less popular. A Denver Post poll late last year said 52 percent of people polled would scrap the death penalty, while just 43 percent said they would keep it.
But Brophy said it’s inappropriate for the governor to consider polling data in a case where a jury and several courts have already weighed in.
“The justice system tried, convicted and sentenced him,” he said. “And the governor shouldn’t let his personal views or some skewed polling results effect the outcome of our judicial system.”
Not only should the governor deny Dunlap’s clemency request, Brophy said, he should do it soon.
“The governor does need to clearly state that he is going to let the justice system work its course out here, just to stop the stories and quit dragging the victims families and the one surviving victim back through these memories,” he said.
Brophy isn’t the only lawmaker urging the governor to stay out of the Dunlap case.
State Rep. Rhonda Fields, D-Aurora, also weighed in last week. Fields’ son, Javad Marshall-Fields, was gunned down in 2005 before he could testify in a murder case. Robert Ray and Sir Mario Owens, the men who killed Fields’ son, are the other two men on death row with Dunlap.
After the Chuck E. Cheese massacre, Dunlap said he killed the four people inside the children’s restaurant because they were witnesses to his crimes, a point Fields argued makes execution the only appropriate punishment.
“Governor, I know that you are greatly troubled by this decision and I respect that. However, Dunlap’s sentence has been approved by the courts for almost two decades; and I believe that it is appropriate,” she wrote. “I think that granting clemency would send the wrong message to criminals and to witnesses, and I urge you to deny it.”
Sandi Rogers, mother of Ben Grant who was killed in the shooting, wrote a letter asking Hickenlooper to deny clemency in addition to Fields.
“Please, Governor, just sit back, make no decision (to grant clemency),” the letter said. “Please allow us the peace that never hearing Dunlap’s name after August will bring us.”
Prosecutors released the text of the letter last week.
Fields’ support for Dunlap’s execution shows that pressure on the governor — both to spare Dunlap and to let the execution go ahead — is coming from all sides, often from a mishmash of characters who aren’t always in agreement. Conservative religious leaders have urged Hickenlooper to show mercy on Dunlap, while a liberal Democratic lawmaker like Fields pushed for execution.
HICKENLOOPER PONDERS CLEMENCY FOR CONVICTED KILLER DUNLAP
https://www.aurorasentinel.com/news/hickenlooper-ponders-clemency-for-convicted-killer-dunlap/