Colorado Gov. Jared Polis could use his broad powers to commute the sentences of the three men on the state’s death row today.
In fact, he could have converted their death sentences to life-in-prison immediately after taking office in January 2019.
But Polis has sidestepped questions about how he will handle their cases, which became more pressing after the Colorado legislature passed a bill last week to repeal the death penalty. In recent comments, the governor has cited the fact that none of the inmates – Nathan Dunlap, Robert Ray and Sir Mario Owens – has submitted a clemency request to him as a response to how he will respond following the measure’s passage.
“None of them are ripe for our review,” Polis told The Colorado Sun.
Colorado law gives the governor much leeway and little direction when it comes to clemency in capital punishment cases, and a formal clemency request isn’t needed to make a decision on whether to commute a death sentence.
“It’s the governor’s discretion when and how he considers death penalty cases,” said Stephanie Donner, who was chief legal counsel to former Colorado Gov. John Hickenlooper. “There isn’t a specified process outlined in law – in statute or in constitution.”
State law on clemency in capital cases is extremely broad. It reads: “The governor is hereby fully authorized, when he deems it proper and advisable and consistent with the public interests and the rights and interests of the condemned, to commute the sentence in any case by reducing the penalty in a capital case to imprisonment for life or for a term of not less than 20 years at hard labor.”
Polis’ decision to wait in wielding those powers provides some insight into how he is working through one of the toughest decisions he will make during his tenure leading Colorado. He has said he will sign Senate Bill 100, the measure repealing the death penalty, once it reaches his desk.
Polis also has said he would take the death penalty repeal into account when making his decision on the cases of Dunlap, Ray and Owens. But that’s not all he will be considering.
“We’ll judge them on the individual merits,” Polis told The Sun last week.
On Monday, Polis’ spokesman, Conor Cahill, said “the governor takes this responsibility seriously and is considering potential next steps,” but didn’t elaborate.
(Last year, when lawmakers were debating a bill to repeal Colorado’s death penalty that ultimately failed, The Sun asked Polis’ office why, if he didn’t support the death penalty, he hadn’t taken action to commute the sentences of Dunlap, Owens and Ray. The office did not respond.)
The governor has also in recent days cast doubt on Colorado’s ability to carry out an execution.
Polis told Colorado Public Radio last week that since Colorado doesn’t have the drugs prescribed by state law to carry out lethal injections, “it’s very unlikely that those sentences would be able to be carried out.”
“There’s no legal means to carry out the death penalty in Colorado right now,” he told CPR, calling the death penalty an “anachronistic method of punishment.”
But there’s nuance to the situation. While it is true that Colorado lacks sodium thiopental, the drug specified in state law to carry out an execution by lethal injection, and likely couldn’t procure the powerful anesthetic because it is no longer available on the open market, the Colorado Department of Corrections has options.
The state’s death penalty statute says prison officials can use “a lethal quantity of sodium thiopental or other equally or more effective substance sufficient to cause death.”
The other drugs administered according to Colorado’s capital punishment protocol are pancuronium bromide to cause paralysis and stop breathing, and potassium chloride to stop the heart.
Colorado could use the barbiturate pentobarbital as an alternative to sodium thiopental, following other states’ lead, though there would likely be extensive legal challenges mounted to any switch from the state’s prescribed drug cocktail. There is also conflicting thought as to whether the state could find a way to get sodium thiopental.
Last year, state prison officials told The Sun that while they lacked the drugs to carry out an execution, they would “take any steps we needed to take” if ordered to do so. The Department of Corrections has tried in the past to procure the drugs.
On Monday, the DOC said it still doesn’t have the means to kill a prisoner by lethal injection and cast doubt on its future ability to do so.
“Our current contract with our medication supplier for the prisons does not allow for the purchase of the drugs used in execution,” said Annie Skinner, a spokeswoman for the Department of Corrections. “In addition, as has been reported previously, sodium thiopental is no longer available on the open market for executions.”
Lethal injection is the only way a death penalty can be enforced in Colorado.
Polis isn’t the first governor to bring up the state’s lack of lethal injection drugs as a problem with Colorado’s capital punishment laws. When Hickenlooper granted an indefinite reprieve from execution in 2013 to Dunlap, who murdered four people in 1993 at a Chuck E. Cheese restaurant in Aurora, the then-governor cited the state’s lack of drugs to complete an execution as one of the reasons.
Donner worked on that case as Hickenlooper’s top lawyer.
Dunlap’s indefinite reprieve remains in place and could only be changed by Polis or a successor.
The other two men on death row are Ray and Owens. They were convicted in the 2005 murders of Javad Marshall Fields, 22, and his fiancée, Vivian Wolfe, also 22.
Fields was a witness to another murder and was targeted because he was set to testify in that case. Ray’s and Owens’ cases are still going through the lengthy appellate process.
Fields was the son of state Sen. Rhonda Fields, an Aurora Democrat. Last month, Polis appointed Fields’ daughter, Maisha Jamila Marshall Fields, to his clemency review board.
The 11-member board’s mission includes reviewing clemency applications and making nonbinding recommendations to the governor. Even though it’s not outlined in the executive order, the Polis administration said the board will not consider death penalty cases, a protocol also adopted by Hickenlooper.
Maisha Fields, a nurse who is a staff member on Hickenlooper’s U.S. Senate campaign, is a supporter of the death penalty and has repeatedly testified at the Capitol against efforts to repeal capital punishment in Colorado. Sen. Fields shares her daughter’s views on the death penalty and also argued against the repeal legislation.
In an interview, Polis told The Sun that he did not inquire about whether Maisha Fields supported the death penalty and suggested he didn’t know her position. “It’s not a question that I asked in the interview process for clemency board – where those individuals stood on the death penalty,” the governor said. “So I would expect, like among any group of Coloradans, there are probably different opinions on the death penalty among the members of the clemency board.”
Sen. Fields says she would be surprised if Polis didn’t know about her daughter’s support for capital punishment. “It just baffles me that the governor would say he didn’t know that,” she said. “She’s been down here testifying in support of not repealing it for years. Maybe he doesn’t notice?”
Sen. Fields said she will not lobby Polis against commuting the sentences of her son’s killers.
“I don’t think that does any good,” she said. “I think he clearly knows where I stand. I think out of courtesy, if he’s thinking about doing that, as a crime victim, one of my rights is to have advance notification. And that’s all I expect from him.”
James Castle, Owens’ attorney, declined to comment when reached by phone on Monday. He said he didn’t want to add to the pain of Owens’ victims or Owens’ family.
The governor has not yet received Senate Bill 100 from the legislature. He has 10 days from when he receives the death penalty repeal bill to sign it or it becomes law without his signature.
If Polis signs the legislation into law, Colorado will become the 22nd state to abolish the death penalty.