James Holmes, the Aurora, Colo. movie theater assailant, could conceivably face the death penalty, but the chances he will be executed by lethal injection are remote, despite the calculated nature of his crime.

Although Holmes will likely plead not guilty by reason of insanity, a judge is likely to reject that defense and rule him competent to stand trial for a couple of reasons.

Holmes’ elaborate planning to carry out the shooting, his education level and the fact that he surrendered to police without resistance all strongly suggest that he was fully aware of what he was doing.

The death penalty in Colorado

1859: Murderer John Stoefel is first person executed legally in Colorado.
1861: Colorado adopts a formal death-penalty law.
1897: Death penalty abolished in Colorado.
1901: Death penalty re-instated.
1934: Colorado becomes the second state to adopt lethal gas instead of hanging.
1972: The U.S. Supreme Court case Furman v. Georgia halts executions nationwide.
1979: The death penalty is re-instated in Colorado.
1988: Colorado adopts lethal injection.
1997: Gary Davis becomes the first Colorado inmate executed in 30 years.
2001: Ronald Lee White is sentenced to life in prison after his previous death sentence was overturned.
2002: Frank Rodriguez, on death row for kidnapping and murder, dies from illness.
2003: Three inmates have their death sentences changed to life in prison after the U.S. Supreme Court rules death sentences by judges unconstitutional.
2005: Robert Harlan has his death sentence changed to life in prison after a court rules jurors improperly consulted a Bible when deciding his sentence.

Aggravating Factors for Colorado Death Penalty

(1)The murder was especially heinous, atrocious, cruel, or depraved (or involved torture)
(2) The defendant knowingly created a grave risk of death for one or more persons in addition to the victim of the offense
(3) The defendant killed the victim while lying in wait
(4) The murder was committed for pecuniary gain (murder for hire_
(5)The defendant caused or directed another to commit murder
(6) The murder was committed to avoid or prevent arrest, escape, or conceal a crime
(7) The defendant has been convicted of, or committed, a prior murder, or other serious felony
(8) The capital offense was committed by a person who is incarcerated, escaped, on probation or in jail.
(9) The victim was a government employee.
(10) The victim was an elected or appointed official or former official.
(11)The murder was committed against a person held as a shield, as a hostage, or for ransom
(12)The defendant used chemical, biological, or radiological weapons and/or the person intentionally killed more than one person in one criminal episode
(13)The victim was a pregnant woman and the defendant intentionally killed the victim, knowing she was pregnant
(14)The defendant committed treason
(15)The defendant’s possession of the weapon was a felony offense under the laws of the state
(16)The defendant intentionally killed more than one person in more than one criminal episode
(17)The defendant committed the class 1 felony against the victim because of the victim’s race, color, ancestry, religion or national origin

Source: Denver Post and Death Penalty Information Center

Police estimate he spent at least two-months working out the details of his attack.

In Colorado, according to legal references, the state uses what’s known as the M’Naghten Rule in conjunction with a second factor known as the “Irresistible Impulse Test” to determine insanity. The burden of proof rests with the state.

The M’Naghten Rule is based on an 1843 English murder. It established insanity as a defense in cases where the defendant was so deranged that they did not know the nature or quality of their actions, or did not know what they were doing was wrong.

The “Irresistible Impulse Test” makes it harder to plead insanity because it requires a defendant to be unable to “control their impulses” to commit wrong-doing. Holmes’ long period of planning undercuts the argument that he acted on impulse.

The state could also argue that Holmes knew what he was doing was wrong because he took elaborate precautions to protect himself by wearing a bullet proof vest and other body armor. In other words, he knew his act might draw a lethal response because it was wrong. So he protected himself from that possible outcome.

In Colorado, a jury can invoke the death penalty for a conviction of first-degree murder as long as at least one of 17 aggravating factors is also present. Holmes would qualify for the death penalty because of at least three aggravating circumstances. (see list)

The fact that his crime was premeditated, unprovoked and heinous would certainly qualify him for the death penalty. But would he actually be put to death?

Colorado has put to death 103 people over its history, but only one killer has been executed in the past 45 years, according to The Denver Post. In 1997, Gary Davis, convicted of rape and murder, became the first Colorado inmate executed since the 1960s. There are fewer than five inmates on death row now in the state. None are close to being executed, due to various appeals.

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