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CHAPTER 1
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 resisted making the ban permanent and enacted new death penalty statutes — some of which withstood constitutional scrutiny — and in 1977 Gary Gilmore in Utah became the first "post-Furman" and "post-Monge" prisoner to be executed in the United States.
Between January 1, 1977 and the end of 2015, there were 1,422 executions in the United States. Only one of these executed inmates — Gary Lee Davis — went to his death in Colorado, although that low "success" rate has not stopped a considerable number of politicians and prosecutors from trying their best and spending millions of dollars to increase the number.
Assembling a comprehensive list of those executed in Colorado's history is neither a simple nor a straightforward task, but this job has now been completed. Appendix 1, at the end of this book, gives a chronological list of all those who were executed in Colorado and a short description of each case. Before November 1890, Colorado executions occurred in counties, and before 2003 there was never a statewide "master list" that could give students of the death penalty the names, dates, and places where executions were carried out under county authority. The best single source for execution data, both in Colorado and in other states, comes from the scholarship of the late M. Watt Espy, an Alabama researcher whose work in documenting executions is regarded by most scholars as incomplete yet definitive. As a starting point, Espy supplied his data for this project, which included the names and dates of approximately 90 percent of the executions included in appendix 1. Extensive searches in the Colorado State Archives, Stephen H. Hart Library and Research Center at the Colorado Historical Society (now called History Colorado), the Denver Public Library, and Norlin Library at the University of Colorado Boulder, as well as in several smaller libraries throughout the state, were conducted to supplement the Espy data and to collect information on each execution. In several cases in which the race of the executed prisoner's murder victim was unknown, information was obtained from death certificates from the Health Statistics Section, Colorado Department of Public Health and Environment.
GENERAL PATTERNS IN COLORADO EXECUTIONS
Using this methodology, and including the five executions that resulted from decisions made by People's Courts, a total of 103 legal executions between the beginning of 1859 and the end of 2015 were identified. Only men were executed, all of whom were convicted of murder. Table 1.1 summarizes these executions, breaking them into five categories: (1) county authority, pre-statehood (ten cases), (2) county authority after statehood (fifteen cases), (3) hangings under state authority (forty-five cases), (4) asphyxiations under state authority in the gas chamber (thirty- two cases), and (5) the only execution since 1967, Colorado's sole lethal injection. Table 1.1 also lists the date of the offense, date of execution, the day of the week on which the execution occurred, and the number of months between the crime and the execution.
As shown in Table 1.1, on eight occasions, two men were executed on the same day and twice the state executed three people on a single day. One of the double executions claimed the lives of Louis and John Pacheco, who are the only brothers to be executed in the state. Table 1.2 categorizes some of the data from Table 1.1 so that various trends by decade can be examined. During the 1930s — the busiest decade for Colorado's executioners — twenty-five executions took place, seven in 1930 alone. Colorado's execution total was also in double figures in the 1880s (thirteen), the 1890s (twelve), and the 1940s (thirteen). There were, however, only ten executions in the last half of the twentieth century and only ten executions from 1950 through 2015. In contrast, in the past twenty years (1996–2015), Texas, with 427 executions, has averaged twice that number per year. As Bob Grant, one of Colorado's top death penalty prosecutors over the past three decades, has regularly pointed out, debating the death penalty in Colorado is a lot different than debating it in Texas.
Table 1.2 also collapses data from Table 1.1 to calculate the average time between the crime and the execution. Prior to 1869, when there were few places to confine prisoners, executions typically occurred within two months of the crime. During the next ninety years, prisoners' executions generally occurred within one or two years of the capital offense. By the 1960s, however, the average prisoner in Colorado waited four years after the crime before his execution. Before the 1970s, the longest time between the commission of the crime and execution came in the case of Leroy Adolph Leick, executed in January 1960 after a six-year battle fought mainly over his mental competence for execution. Gary Lee Davis, the only person in Colorado executed after 1967, lived for just over eleven years after his crimes, ten of them on death row. In sharp contrast to the time on death row served by those executed prior to 1972, the average time between sentencing and execution for the 1,320 inmates executed in the United States from 1977 to 2012 was eleven years, four months; for the 43 inmates executed in 2012, fifteen years, ten months; and for the 39 inmates sent to their deaths in 2013, fifteen-and-a-half years.
Table 1.3, also collapsing case-by-case data from Table 1.1, shows that about 70 percent of Colorado executions (N = 72) occurred on Fridays. This finding holds for both executions under county authority (1889 and earlier) and those conducted in and after 1890 under state authority. This occurred because Colorado statutes required that the trial judge, or the state Supreme Court if the case was appealed, designate a week during which the execution should be conducted. The sheriff or warden, however, had discretion to determine the exact day and hour. The Colorado Supreme Court defined that "week" as beginning at midnight Saturday and ending at midnight the following Saturday. Friday executions allowed the prisoner to live most of the week and eliminated the need for those employees involved in the execution to work on weekends.
Table 1.4 shows that three-quarters of those executed in Colorado — 79 out of 103 — were sentenced to death for killing one victim. Five were convicted of killing four people, including three codefendants who killed four people during a bank robbery in Lamar in 1928. In 1957 the state executed John Gilbert Graham, the only person put to death for killing more than four people, after his conviction for blowing up an airliner in 1955.
Before being moved to Cañon City, hangings were popular social events. Table 1.5 displays the estimated attendance at executions conducted in public and open to all interested citizens. The accuracy of these estimates is debatable, but there is no doubt that hangings were popular social events, often attracting several thousand spectators — some of the biggest crowds ever assembled at the time — from the local community and distant towns and cities. As discussed below, by the 1880s, the popularity of executions and their festive atmosphere prompted politicians to turn them into private events. The largest crowd to witness an execution assembled in Denver in 1886 and watched as Andrew Green slowly strangled to death.
Finally, Table 1.6 shows the race of the defendant and the victim in Colorado death penalty cases. Ten of those executed were African American, and fifteen others were members of other racial or ethnic minorities (Hispanic, Asian, or "other"). In other words, nearly a quarter of those put to death in Colorado (25/103) were members of racial or ethnic minority groups. No white person has ever been put to death in Colorado for a crime that victimized an African American.
SENTENCED TO DEATH BUT NOT EXECUTED
In the course of this research, approximately one hundred cases were found in which men in Colorado were sentenced to death but never executed. There is no evidence that any woman has ever been sentenced to death in the state. These cases, ordered by the year in which the death sentence was imposed, are listed in appendix 2. However, this list is no doubt incomplete. Some inmates who were sentenced to death may have had their sentences commuted even before reaching the prison, others may have died of natural causes soon after the death sentence was imposed, some of these cases were not appealed or even reported in newspapers that are accessible today, or for other miscellaneous reasons they have disappeared into history. Interestingly, while cases that resulted in an execution are relatively easy to identify, those where a death sentence was imposed but not carried out are not found in any central source, and those who committed the murders — perhaps as it should be — have been forgotten. Executing an inmate guarantees that he or she will be remembered forever.
To identify these cases, I searched in Westlaw, Lexis, and the Colorado Historic Newspapers Collection for terms such as "sentenced to death" or "sentenced to be hanged." This strategy is admittedly hit-and-miss. Once a lead was uncovered, it was not uncommon for the relevant names to be misspelled or information about the case (e.g., date of offense, date of death sentence) to be too cryptic to use. Also useful were the Colorado State Penitentiary Records housed at the State Archives in Denver. These records are microfilmed copies of handwritten entries for each prisoner ever housed in the Colorado State Penitentiary, which opened in Cañon City in 1871. However, going through the microfilmed copies of these records is extremely time-consuming, the handwriting is often impossible to read, and the quality of the copies is often poor. Nonetheless, this source did contain information on perhaps a dozen cases.
For the Denver cases, the indexes to the Denver Post and the Rocky Mountain News proved to be indispensable. These indexes are digitized copies of typed 3 × 5 cards compiled by scores of researchers and volunteers over the years, originally filed in the Western History Collection of the Denver Public Library. Although these indexes are incomplete and have virtually no information on cases outside the Denver metropolitan area, they are invaluable.
OUTLINE OF THE FOLLOWING CHAPTERS
The book is organized in roughly chronological order, with exceptions here and there for discussions of events or cases that took several years to unfold. Chapter 2 begins when the city of Denver was founded and Euro- Americans first started to settle in the area. Very soon after the city was formed the hangings began, and five cases in which men were executed after being sentenced to death by People's Courts are recounted. Colorado was recognized as an official territory of the United States in 1861, and the next section looks at the ten cases that ended in hangings prior to statehood in 1876. Counties continued to hang people for thirteen years thereafter, with some of the hangings becoming rambunctious public spectacles, which partially fueled abolitionist sentiments in the late 1880s. Meanwhile, the General Assembly continued to tinker with Colorado's death penalty statute and moved executions to a central location in Cañon City, where they are still held today. Prison officials also invented a hanging machine, where the inmate was launched upwards rather than made to fall through a trap door, as well as a rather complex hydraulic apparatus that allowed the prisoner to stand on a platform, where his weight would trigger a device that effected his hanging without any involvement by an executioner or other prison personnel. The chapter ends when the death penalty ended: the 1897 formal abolition of the death penalty in Colorado.
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