This Article reports the conclusions of an empirical study of every murder conviction in Colorado between January 1, 1999 and December 31, 2010. Our goal was to determine: (1) what percentage of first-degree murderers in Colorado were eligible for the death penalty; and (2) how often the death penalty was sought against these killers. More importantly, our broader purpose was to determine whether Colorado's statutory aggravating factors meaningfully narrow the class of death-eligible offenders as required by the Constitution. We discovered that while the death penalty was an option in over 90% of all first-degree murders, it was sought by the prosecution initially in only 3% of those killings, pursued all the way through sentencing in only 1% of those killings, and obtained in only 0.6% of all cases. These numbers compel the conclusion that Colorado's capital sentencing system fails to satisfy the constitutional imperative of creating clear statutory standards for distinguishing between the few who are executed and the many who commit murder. The Eighth Amendment requires that these determinations of life and death be made at the level of reasoned legislative judgment, and not on an ad hoc basis by prosecutors. The Supreme Court has emphasized that in order to be constitutional a state's capital sentencing statute must limit the class of persons eligible for the death penalty such that only the very worst killers are eligible for the law's ultimate punishment. Colorado's system is unconstitutional under this standard because nearly all first-degree murderers are statutorily eligible to be executed.

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