Former Sen. Ray Powers (R-El Paso) was a conscientious, hard working legislator, but now he is the "poster boy" of unconstitutional death penalty statutes, mainly because he listened to poor advice.

A 1995 statute carried by Sen. Powers and pushed by district attorneys gave a three judge panel the job of deciding life or death for a convicted Felony 1 murderer. But in an Arizona case the U.S. Supreme Court in June, 2002 required a jury make the decision on whether the murderer should be subject to the death penalty. So Gov. Owens called the legislature back into special session.

In 1991, a special session was called because of SB 78, another death penalty law carried by Sen. Powers in 1988. Colorado has long had "aggravating and mitigating" factors to consider in death penalty cases. In 1984, the legislature decided on a four-prong test for the jury decision under HB 1310 by Rep. Mike Bird (R-El Paso). In the four-prong test:

(1) Does at least one aggravating factor exist beyond a reasonable doubt? If not, the defendant gets life imprisonment.

(2) If one aggravating factor is found, do any mitigating factors exist?

(3) Do mitigating factors outweigh aggravating factors?

(4) If mitigating factors don't outweigh aggravating factors, the jury must decide death or life imprisonment.

The Powers bill removed the fourth step, and established a new (3). The statute required the jury to return a death penalty if mitigating factors did not outweigh aggravating factors. Basically, a tie, or less than a tie, goes to the prosecution.

In 1990, the Colorado Supreme Court ruled the 1984 death penalty law sponsored by Rep. Bird was constitutional. By that time, it had been replaced by the 1988 statute.

On July 9, 1991, the Colorado Supreme Court held the 1988 death penalty statute unconstitutional on a 4-3 vote. In June of 1989, three men murdered a potential witness and his roommate. The DA sought to use the 1988 death penalty but District Court Judge Warren Martin held that statute unconstitutional. The DA appealed.

The Supreme Court held:

"...the statute requires a jury sentence a defendant to death if the mitigators and aggravators are equally balanced. We hold a sentence to death under those circumstances does not reflect the degree of certainty and reliability that the Colorado constitution requires to support the imposition of the uniquely severe and irrevocable sentence of death.

"Accordingly the statutory sentencing structure on its face violates the cruel and unusual punishments clause as well as the due process clause found in Article II, sections 20 and 25 of the Colorado Constitution."

Rep. Pat Grant successfully sponsored two bills in the special session. The first, HB 1001 re-enacted the 1984 law, and took effect Sept. 20, 1991. The second, HB 1038, restored the 1984 law as to felonies committed between July 1, 1988 through Sept, 19, 1991 and was signed into law Oct. 11, 1991.

The Supreme Court on Nov.9, 1992, in a felony murder appeal, ruled HB 1038 could be applied to Felony 1 cases occurring between July 1, 1988 and July 8, 1991, but not as to murders between July 9, 1991 (when the Supreme Court ruled SB 78, the Powers bill, was unconstitutional) and Sept.20, 1991 (when HB 1001 went into effect.)

The court claimed restoring the death penalty between July 1, 1988 and July 8, 1991 "did not violate either the state or federal proscriptions against ex post facto laws." In other words, the 1984 law by its renewal was still available for murders prior to July 9, 1991.

But the murder in the Nov. 9, 1992 decision occurred July 30, 1991 and that was AFTER the Supreme Court ruling of July 9, and to impose the death penalty would violate constitutional proscriptions against ex post facto laws.

An ex post facto law occurs when a statute punishes as a crime conduct that was innocent when done, makes more onerous the punishment for a crime after its commission, or deprives a defendant of a defense that was available at the time the crime was committed.

What does this have to do with the special session beginning July 8th? Can you restore the law as it read prior to July 1, 1995 as to murders committed after July 1, 1995 without violating the proscription against ex post facto law? Can you pass a law that allows the unanimous verdict of a judge panel for death to stand when the aggravating circumstances are such that any jury would have had no choice but to vote for death?

(Jerry Kopel served 22 years in the Colorado House.)