James Holmes killed more people during his movie theater massacre than Nathan Dunlap, Sir Mario Owens and Robert Ray combined. Dunlap, Owens and Ray, all of whom are black, are on death row. Holmes, who is white, will spend the rest of his life in prison.

Why?

The three jurors—two wavering, one resolute—who chose to spare Holmes’ life reportedly did so because of his mental illness, not his race. Attorney Forrest “Boogie” Lewis, who defended Dunlap in 1996, said, “It is folly to speculate on the motivation of individual jurors in such emotional, complex cases.”

Still, on the day of the Holmes verdict, Colorado state Rep. Jovan Melton tweeted, “Today’s verdict proves again that the Death Penalty is arbitrary. Only people on Death row in CO are Black. It has no place in CO.”

Melton’s Tweet echoes the “If he was white, he’d still be alive” argument that presents itself each time police kill another unarmed person of color. If Holmes were black, would he now be facing execution?

‘DISQUIETING DISCRETION’

A recent study from the University of Denver Law School adds credibility to a theory as widely reported as it is unpalatable: Colorado’s death penalty has a race problem.

The DU study, titled “Disquieting Discretion,” features statistical analysis of more than 500 Colorado prosecutions from 1999 to 2010. Controlling for both the heinousness of crimes and the variable rates at which different racial groups commit crimes, researchers found that nonwhite defendants here are five times more likely to face the death penalty than their white counterparts. Of the 22 capital cases tried in those years, only two were against white defendants.

The study’s other major finding—that the 18th Judicial District prosecutes disproportionately more than its share of death penalty cases—suggests a potential explanation why. The decisions of individual juries cannot be controlled, but across the state, prosecutors pursue death against many fewer defendants than are eligible for it. District attorneys, in other words, have a large amount of discretion when it comes to deciding whose lives are put on trial.

This finding is not entirely new. Gov. John Hickenlooper acknowledged the discretion when he granted Dunlap an indefinite stay of execution in 2013.

“The inmates currently on death row have committed heinous crimes, but so have many others who are serving mandatory life sentences,” Hickenlooper said. “The fact that those defendants were sentenced to life in prison instead of death underscores the arbitrary nature of the death penalty in this State, and demonstrates that it has not been fairly or equitably imposed.”

BLACK AND WHITE

Bob Grant, a former prosecutor whose case against white defendant Gary Lee Davis led to the state’s last execution in 1997, said prosecutorial discretion is not problematic.

“You can do all the statistical studies you want, and they’re not going to get to the full story.” Grant said. “Race has nothing to do with a death decision. Never has.”

Defense attorney David Lane disagreed.

“The death penalty is, was and always will be about race,” Lane said.

The study’s authors agree with Grant that race is likely not an explicit factor for prosecutors or juries.

“We’re definitely not in the business of saying that these prosecutors or these jurors were out to kill a black person,” said Sam Kamin, one of the study’s authors.

But implicit bias, Kamin said, is a powerful thing.

“I think that all of us in society carry these preconceptions around about people, and it would be surprising if that didn’t manifest in our criminal justice system,” he said.

It’s possible that jurors are more likely to consider mental illness a mitigating factor for white defendants than minorities.

“I think that (Holmes’) mental illness was more important than his race,” said Robert Dunham, executive director of the Death Penalty Information Center. “However, if you change his race, I’m not sure the same calculus applies.”

Lane speculated that jurors may have been more sympathetic to Holmes because of his race and class background. He was a graduate student. His parents took the witness stand and spoke articulately about his happy, stable childhood.

“If Holmes had been equally crazy and black, would one juror have said that mental illness for this African American man is so significant that I’m not going to pull the trigger?” Lane asked.

CRIME AND PUNISHMENT

Longtime Democrat Rhonda Fields, a member of the Colorado House, never thought she’d be a death penalty advocate.

“I didn’t support it,” she said. “I didn’t think I would ever be touched by it.”

But in 2009, capital punishment became personal for Fields.

Days before her son, Javad Marshall-Fields, was to testify against defendant Robert Ray for the killing of Marshall-Fields’ best friend, he and his fiancé were ambushed and murdered while driving. Ray had ordered the murders to protect himself from Marshall-Fields’ testimony. His friend Sir Mario Owens, who is also now on death row, carried them out.

“I support the death penalty because I believe that some people commit such heinous crimes that they deserve the worst punishment on the books,” Fields said.

She, along with many death penalty advocates, believes capital punishment differentiates the worst killers from those who commit, in the words of 18th Judicial District prosecutor George Brauchler, “run-of-the-mill first degree murders.”

Fields supported the death penalty for Ray because he was already facing life in prison for the previous shooting, and she also wanted him punished for the death of her son.

“Why would I want to give him a freebie?” she asked.

An African American woman, Fields is hesitant to say that race has anything to do with the decision to pursue the death penalty.

“I really have great confidence in the criminal justice system,” she said. “If a DA doesn’t want to use it as an option, it’s probably because the crime doesn’t meet the criteria.”

Still, she said, “I know race matters. We’ve seen these things play out.”

WITNESS PROTECTION

Grant insists that the specifics of each crime, not race, are what matters. He pointed out that the study’s rough measurement for heinousness—whether a defendant killed more than one person—doesn’t give enough information about a crime to know whether the defendant deserves death.

“Look at the aggravating factors and decide for yourself,” he said. “They are what separate a domestic violence murder, for instance, or an individual dispute murder…from the most heinous, the most aggravated murders.”

One of the main aggravating factors against both Owens and Ray was the fact that they’d killed a witness. Outside the courtroom on the day Ray was sentenced to death, then district attorney of the 18th Judicial District Carol Chambers said, “Killing a witness undermines the very foundation of the criminal-justice system.”

In 2003, Caleb Burns and Nathaniel York – both white – kidnapped, bound, gagged and then murdered two teenagers they believed were witnesses to an earlier attempted murder. Like Owens and Ray, these white men committed their crimes in the 18th Judicial District.

Burns and York were both able to plead guilty in exchange for life sentences.

“Black men who kill witnesses in the 18th Judicial District get the death penalty,” said Lane. “White men get life.”

THE NEXT PHASE

Many state and national studies have indicated that race affects prosecutions and outcomes of death penalty cases.

But the U.S. Supreme Court has made it clear that statistics are not enough. In 1987, University of Iowa professor David Baldus studied 2,000 murder cases in Georgia and found that killers of white victims were more likely to receive the death penalty than killers of black victims.

But when death row inmate Warren McCleskey attempted to use the study to overturn his sentence, SCOTUS ruled against him. Even if the statistics were accurate, the court ruled, it wasn’t enough to prove any racial motivations for McCleskey’s own case.

In an infamous opinion, Justice Powell wrote for the majority, “Apparent discrepancies in sentencing are an inevitable part of our criminal justice system.’’

The sentencing trial of Dexter Lewis, who stabbed five people to death in a Denver bar in 2012, is set to conclude in the upcoming weeks.

A life sentence for Lewis, who is also black, could imply that Coloradans are simply becoming lukewarm toward the death penalty. Though two-thirds of Coloradans polled said they supported death for Holmes, support for capital punishment is at a 40-year low nationwide.

But a death sentence for Lewis will likely cause outrage, perhaps justified, among death penalty opponents.

In his executive order granting Dunlap a stay of execution, Hickenlooper wrote, “If the state of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. The death penalty in Colorado is not flawless.”

He then added, “It’s a legitimate question whether we as a state should be taking lives.

Photo credit: Don Juan Triunfante, Creative Commons, Flickr.