There seems to be a consensus that if James Holmes, the Colorado shooter, is sentenced to death it will be a long long time before he is actually executed. This perception overlooks exactly what it is that results in the long periods between sentence and execution in death penalty cases. I realize there are some quirks with Colorado procedure but there are also some (and by some I mean a lot of) quirks in the Colorado theater shooter case. The historically stagnant application of the death penalty in Colorado is of course impossible to overlook but there are other factors more telling about this defendant in this case. Unless the Legislature in Colorado votes to abolish the death penalty, as was done in the adjacent state of Nebraska, I believe this case will reverse the trend of waiting decades for execution if Holmes is in fact sentenced to die.

If sentenced to death, obviously Holmes will appeal and if all efforts at appellate relief at the state level are futile, he will ask the U.S. Supreme Court to review the case. Such Supreme Court review is discretionary and there is nothing in this case which would appear to arouse the Supreme Court’s interest, at least not as the Court is constituted today.

This direct appellate process may take three, perhaps four years. What then? In a case where the facts alleged were contested, a conviction is usually attacked collaterally, state and then federal, on one of four grounds, and it is that collateral attack which lengthens by years if not decades the implementation of the sentence of death. The four grounds that comprise the vast majority of litigation after direct appeals are exhausted are (1) incompetence of counsel, (2) suppressed evidence of innocence by the prosecution, (3) newly discovered evidence of innocence, and (4) an attack on the death machinery itself.

In the Colorado shooter case, the defendant acknowledged committing the acts the prosecution alleged. It is virtually inconceivable that under the facts of the case, the defense counsel can be attacked on the ground that this was such an unwise choice that the representation was constitutionally defective. Similarly, where the defendant acknowledges the conduct alleged, it is difficult to imagine that either there is suppressed evidence of innocence or evidence “out there” of innocence waiting to be discovered and presented to the court.

That leaves an attack on the death penalty itself. Unfortunately for Holmes, the Supreme Court very recently, by a 5 to 4 vote, upheld the death penalty procedure used by Oklahoma (also an adjacent state as it touches the southeast corner of Colorado). All Colorado must do to preclude any attack on the method of executing is follow the procedure upheld by the Supreme Court in the Oklahoma case. If the will is there the State can make it happen. Of course it is possible that the composition of the Supreme Court may change, portending a different result. Since it will be a few years before the Colorado case will reach the Supreme Court, Holmes may get the benefit of any such change, should it occur.

[As an interesting aside, some experts say that Holmes’ mental health will continually be contested and further delays will occur since he won’t be deemed competent to be executed. However, and this is another blog topic for medical ethicists and everyone else interested in the intersection of human rights, psychiatry and the law, there is legal precedent for the notion that if a condemned death row inmate is incompetent to be executed, the State may administer antipsychotic medication even if the end result would be to render him competent to understand the nature and reason for execution. Imagine the quandary psychiatrists would face – either let this prisoner’s mental health deteriorate by not prescribing meds but in the alternative provide meds so his condition will improve in order for him to be deemed competent and hence executed.]

The bottom line is that in a death penalty case where the defendant has acknowledged the facts alleged and where that strategy is difficult if not impossible to second guess, a lengthy waiting period between sentence and execution, measured in a decade or more is highly unlikely, even in a state that hasn’t executed anyone in nearly 50 years.