A new study con­duct­ed by law pro­fes­sors Justin Marceau (left) and Sam Kamin (mid­dle) of the University of Denver and Wanda Foglia (right) of Rowan University found that the death penal­ty in Colorado is applied so rarely as to ren­der the sys­tem uncon­sti­tu­tion­al. The authors con­clud­ed that Colorado’s death penal­ty law is applic­a­ble to almost all first-degree mur­ders, but is imposed so infre­quent­ly that it fails to pro­vide the kind of care­ful nar­row­ing of cas­es required by the Supreme Court in Furman v. Georgia (1972). In this ground­break­ing study, the researchers reviewed all first-degree mur­der cas­es in the state between 1999 and 2010. They found that 92 per­cent of the 544 first-degree mur­der cas­es in that time span con­tained at least one aggra­vat­ing fac­tor that made the defen­dant eli­gi­ble for the death penal­ty. However, pros­e­cu­tors filed notices of intent to seek the death penal­ty in only 15 mur­der cas­es and pur­sued the death penal­ty at tri­al in only five of those cas­es — a 1% rate among death-eli­gi­ble cas­es. The authors wrote, ​“Under the Colorado cap­i­tal sen­tenc­ing sys­tem, many defen­dants are eli­gi­ble but almost none are actu­al­ly sen­tenced to death. Because Colorado’s aggra­vat­ing fac­tors so rarely result in actu­al death sen­tences, their use in any giv­en case is a vio­la­tion of the Eighth Amendment.”

Colorado rein­stat­ed the death penal­ty in 1975. Since that time, the state has had one exe­cu­tion and cur­rent­ly has three peo­ple on death row.

(J. Ingold, ​“Colorado death penal­ty law uncon­sti­tu­tion­al, study con­tends,” Denver Post, August 6, 2012; see authors’ sub­mis­sion to the court in State v. Montour, No. 02CR782, July 11, 2012). See Arbitrariness and Studies. Listen to our pod­cast on Arbitrariness.

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