Colin McCallin Sept. 18, 2018

As Chris Watts of Colorado awaits trial for the murder of his pregnant wife Shanann and their two young daughters, speculation abounds whether the case may end in capital punishment, though so far the prosecution neither confirms nor denies that it will seek that result. Colorado, rightly cautious about death sentences, has not carried one out for over twenty years; being sentenced to life in prison is hundreds of times more common. But would the state have a basis in law to inflict death in the Chris Watts case? And how would that affect the case’s progression through the courts?

When Is the Death Penalty Considered?

Colorado’s code reserves the death penalty for the most serious offenses—class 1 felonies—and requires the jury or judge imposing it to be convinced beyond a reasonable doubt of at least one aggravating factor in the offense that outweighs any of opposite effect. Aggravating factors include previous class 1, 2, or 3 felony convictions, the use of explosives to commit murder, murder of a child less than twelve years old, and murder of a peace officer or judicial officer performing his or her duties. Mitigating factors, meanwhile, include mental incompetence, remorse, insignificant previous criminal history, lack of inhibition caused by drugs at the time of the offense, and being less than eighteen years old at the time of the offense. No standard of proof applies to extenuating factors—they are to be taken for granted.

Precautions against Injustice

Prosecutors asking for the death penalty must announce so before trial, and a number of precautions then go into effect. If the defendant is convicted and has not pled guilty or waived the right to a jury trial, a hearing before the jury takes place specifically to determine whether the punishment will be death or lifetime imprisonment. The presiding judge alone decides this if no jury has heard the case. The defendant has a chance to see beforehand the evidence assembled for use in the sentencing hearing, and a chance during the hearing to refute it with counter evidence including witness testimony. Whenever a trial court elects a death sentence, the Colorado Supreme Court reviews that judgment to ensure its soundness, considering at the same time any appeal the defendant chooses to make. The appeal process for such cases takes around ten years on average. So, from end to end, the process of capital punishment has been refined to prevent careless action, and for good reason—who would want a legal system putting people to death carelessly?

What Now?

It is likely, at least in part, this spirit of due care that makes the Chris Watts prosecution reluctant to predict its approach to the case, though to the outside observer the murder of three people—one a pregnant woman, the other two children under twelve—might seem to require obviously the harshest retribution available. As we wait for facts in this terrible tragedy to continue to come to light, we would all do well to take a careful approach ourselves.

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