UPDATE: Without a consensus from the jury between life in prison and the death penalty, James Holmes receives the sentence of life in prison without the possibility of parole.
Jurors in the trial of Aurora Theater shooter James Holmes have reached a verdict in the death penalty phase of the case. The decision is expected at 5 o'clock. The outcome will likely fuel further discussion on whether or not Colorado should have the death penalty, which Democrats have tried three times to repeal in the last decade. Bente Birkeland has more.
The last attempt to repeal the state's death penalty was two years ago and backed by former Representative Claire Levy (D-Boulder).
"I think it's immoral, it's ineffective. I think it doesn't belong in a modern system of justice. I don't think we impose it in a fair, rational way," said Levy. "People don't get executed. They sit waiting the outcome for decades."
But despite widespread support the measure didn't go far in the legislative process. Levy says the timing was off given the tragedies in Sandy Hook and Aurora, as well as the politics in play.
"That was also the session in which all the gun legislation was coming forward. It was the session in which civil unions passed. It was a session in which I think a lot of people had fatigue in taking on yet another very, very, large social issue that had all these implications."
The House Speaker backed the repeal, but what really sealed the measure's fate was that the Governor had reservations. Levy said he felt a change in policy of this magnitude required more public discussion. And that was enough for Representative Lois Court (D- Denver) to vote against it. She joined one other Democrat along with Republicans to defeat the bill in the House Judiciary Committee. Court said she didn't want her colleagues on the full House floor to have to vote on the bill if it was ultimately going to be vetoed.
"In my heart this is absolutely the right thing to do," said Court. "We should repeal the death penalty, but the Governor has said he's struggling with it. That he's not confident the people of Colorado are comfortable with this approach at this point."
A measure to repeal the death penalty made it out of a committee in 2007, but failed on the House floor. The closest it came to passing was in 2009. The bill would have directed the money spent on the death penalty to help solve cold cases. Many families with loved ones with unsolved murders lobbied for the proposal. It narrowly cleared the House and then failed in the Senate by just one vote.
"It is an issue more than any other that I think legislators tend to vote on based on their own personal moral conviction about whether or not the death penalty is appropriate," said former Representative Bob Gardner (R-Colorado Springs).
He served on the House Judiciary Committee during his time in office and heard the testimony on the death penalty each time it was introduced.
"It probably brings out the best in our serving legislators about searching their own conscience and who do they represent, and why are making a particular policy for the state of Colorado," said Gardner.
While the issue largely breaks down along party lines, there are Republican lawmakers who don't support the death penalty. Gardner, however, isn't one of them; he backs it in limited circumstances.
"I think a primary use is a specific deterrent, that they realize and think twice about the commission of that crime," said Gardner. "There has to be some kind of punishment that is reserved for those most heinous things, and things for which there is no other real and fitting punishment. It is not something that has ever been imposed frequently or lightly in Colorado."
Death row inmate Nathan Dunlap was the most recent person close to execution for his role in the 1993 murder of four people at a Chuck E Cheese restaurant in Aurora. But after his appeals ran out, Governor John Hickenlooper gave him a reprieve for as long as he's Governor.
"Doctors found him to have serious bi-polar issues. I mean, mental illness, but at the same time we didn't think it was appropriate to pull the rug out from the whole system of law," said Hickenlooper.
Hickenlooper's critics blasted him for making what they called a non-decision, and the issue became front and center in his reelection campaign in 2014.
"To have a Governor say he's been up at night struggling with this, I think that should resonate with most reasonable people," said Colorado State University Political Science Professor John Straayer. "It's a moral question, do you take a life no matter what? Do you use the power of the state to take a life? That's a legitimate concern and I think some people lose sleep over that."
Recent polls show that a majority of Coloradans support capitol punishment. Former Representative Gardner said the Governor should eventually pick a side.
"I would encourage any executive of any state to not leave those kinds of decisions to their successor. You have to decide what you believe about it and make that decision and not leave it undone," said Gardner.
With Republicans in control of the state Senate – Democratic lawmakers don't expect the issue of a repeal to come up during the next session. But Levy said she knows the debate won't go away.
"The way the Governor handled it guarantees it will be an issue in the next Governor's race. I think it would have been an utterly useless act to have issued this reprieve and then leave office and say I didn't want to sign a death warrant and allow Nathan Dunlap to be executed, but if the next Gov. does, that's ok by me," said Levy.
But during his reelection campaign last year Hickenlooper pledged to do just that. He said he wouldn't commute Nathan Dunlap's sentence and would leave that decision to his successor. He also said if it reached his desk, he would sign a bill to repeal the death penalty. Governor Hickenlooper's office responded for this story by saying that he will not comment on the death penalty at this time.