Death Sentences: Decision Shifts from Juries to Judges

Article excerpt

A new Colorado law that removes death-penalty decisions from the hands of jurors is set for its first test this month when a three- judge panel chooses whether convicted murderer Robert Lee Riggan should live or die.

The law - actually a revision of the state's death-penalty statute - is a controversial attempt to create a "more rational process" in the sentencing of capital cases. Legal authorities nationwide, from the Supreme Court down, have long criticized the death penalty as being too often applied capriciously. And the blame is often laid upon the unpredictability of juries.

At the heart of the debate is the thorny question of how much control government should have over decisions of life and death. And for the same reason prosecutors favor the revised statute, defense lawyers oppose it: It is expected to result in more death sentences in the state. A burden or a right? Backers of the law insist the very gravity of a death-penalty decision makes it more properly the domain of judges. "Most jurors have never done anything like this before. They have no context or background in making this kind of decision," says Richard Westfall, solicitor general in the State Attorney General's Office. But critics see it as a slap in the public's face. "The whole point of a jury is that it will act as the conscience of the community," says David Lane, a Denver criminal-defense lawyer who specializes in death-penalty cases. "The legislature has taken away the most important decision a jury can make." Historically, juries in United States courts have decided both the question of guilt and the sentence in death-penalty cases - a decision that must be unanimous. But some states, including Arizona, Montana, and Idaho, require judge sentencing in capital cases once jurors have voted on a defendant's guilt, taking a sort of tag-team approach. In Florida, Alabama, Indiana, and Delaware, juries recommend a sentence of life or death, but the trial judge may overturn it - and often does. Watching Colorado's experiment With a system previously in place only in Nebraska, Colorado now will hand sentencing to a panel consisting of the trial judge and two more judges selected randomly by computer. Although the panel's decision also must be unanimous, many believe that getting one of 12 citizens to say "nay" is easier than getting one of three judges to oppose death. They expect the number of death sentences to rise. And as the process is tested here, other states are watching closely. "I think Colorado will be the experiment because it's been one way for a long time, and now we'll see it a different way," says Richard Dieter, director of the Death Penalty Information Center in Washington. There are currently just three death-row inmates in Colorado, and there's been only one execution since 1967. Prior to the revision of Colorado's death-penalty law in 1995, there were typically one or two death-penalty cases a year. Today, there are about 10 such cases pending. That fact alarms defense lawyers. "Murders haven't gone up, but they are seeking the death penalty now on cases they would not have before," says Mr. …