INTRODUCTION

As this book goes to press in 2016, democratic governments throughout the world are commemorating the 800th anniversary of the signing of the Magna Carta, which Lord Alfred Denning, the most respected British judge of the twentieth century, described in 1965 as "the greatest constitutional document of all times — the foundation of the freedom of the individual against the arbitrary authority of the despot." Yet, one type of punishment that is increasingly criticized for its imposition based on "the arbitrary authority of the despot" is the death penalty. While the death penalty today has little in common with the death penalty as it was practiced when the Magna Carta was signed, or even when its 750th or 700th anniversaries were celebrated fifty and one hundred years ago, questions about its use and value seem to be escalating, in Colorado and throughout the world, at exponential rates.

At the time of this writing, at the end of 2015, Colorado's death penalty had become such a trivial component of the state's criminal justice system that it is now quite possible that we will never see another execution in the state. After all, by 2016 there were only three inmates on death row in Cañon City, and the only one who is anywhere close to being put to death is Nathan Dunlap, convicted of killing four people in an Aurora restaurant in 1993. In 2013 Colorado governor John Hickenlooper indefinitely halted his execution, a move that effectively imposed a moratorium on all executions in the state. For murders committed between January 1, 2000 and December 31, 2015, prosecutors sought the death penalty against eighteen men and one woman (plus against one of those men a second time). In 2009 and again in 2013, the Colorado General Assembly came close to passing abolition bills. Its members may do so again in the near future, a current or future governor could commute all the death sentences to prison terms with a stroke of the pen, or the courts could easily tinker with these sentences, rendering Colorado's executioner permanently unemployed. This book will cover the history of Colorado's struggles with the death penalty, but with the death penalty still legally permissible, the final chapter of this history has not yet been written.

DEFINING AND COUNTING LEGAL EXECUTIONS

To assemble a complete list of Colorado executions, decisions have to be made on how to accurately distinguish a legal execution (performed after a trial under statutory authority) from a lynching (in which a mob or group performs an execution without recognized legal authority). In a seminal book closely related to the death penalty, distinguished Colorado historian Stephen J. Leonard, from Metropolitan State University of Denver, documented some 175 lynchings in Colorado between 1859 and 1919, including two in which the victims were burned to death and one in which a woman was lynched. Sometimes a perfunctory trial before a vigilante court preceded the lynching, but that extralegal trial should not cause today's historians to classify the hanging as a legal execution. On the other hand, five cases from 1859 to 1860 that are treated as legal executions in this book arguably could be classified as lynchings, and Leonard does so; but they are included in the inventory of legal executions in this book because they were, in a real sense, at least quasi- legal. Strictly speaking, these five executions occurred without statutory authority. In each, however, the prisoner received a semi-formal trial; lay citizen volunteers acted as judge, defense attorney, prosecutor, and jurors; and there were attempts by those in charge to provide the prisoner with minimal due process protections, such as the opportunity to cross- examine witnesses. The five defendants in these questionable cases were tried, convicted, and condemned to death in forums known as People's Courts and will be discussed in the next chapter.

There is no question about the legality of the proceedings that caused ninety-eight other Coloradans to be hanged, gassed, or (in one case) injected with lethal chemicals. Only two of these executions occurred in the past fifty years. The last was that of Gary Lee Davis, who was put to death on the gurney in the Colorado State Penitentiary in Cañon City in 1997. His immediate predecessor to be executed, Luis José Monge, fired his attorneys, forfeited his appeals, and in 1967 became the last prisoner to be asphyxiated in Cañon City's gas chamber. While no one knew it at the time, Monge's execution marked the end of an era in death penalty history for both Colorado and the United States, and there were no more executions anywhere in the fifty states for nearly a decade. Five years after Monge's death, the US Supreme Court handed down its decision in Furman v. Georgia, which, in effect, invalidated all but a few death penalty statutes nationwide. Thereafter, most states...