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Opponents of Colorado's death penalty are working behind the scenes in preparation for the 2013 session of the state Legislature.

According to the NAACP's Rosemary Harris Lytle, death-penalty abolitionists have been meeting to discuss the upcoming session and the possibility of moving forward a bill to remove the death penalty.

Harris Lytle wouldn't comment on specifics.

"They are certainly talking about it right now," says House Minority Leader Mark Waller, R-Colorado Springs.

With Democrats in control of the Legislature, this will be the first time that opponents of capital punishment will have an opportunity to advance their agenda since their failed 2009 attempt.

Now, just as then, they will encounter obstacles. For one, as Waller points out, "it's one of those issues that is not strictly down party-line. I think that, for the Democrats, it's going to be an issue of needing some Republican support, not to pass it, but even to bring it forward."

The current Senate president, Springs Democrat John Morse, actually opposed the 2009 bill.

Secondly, this conversation undoubtedly will be affected by the high-profile case of James Holmes, who is standing trial for the Aurora theater shooting. According to a recent Rasmussen poll, 66 percent of Coloradans believe that Holmes ought to receive the death penalty.

Currently, three men sit on Colorado's death row.

For Waller, who supports the death penalty, the best example of where it could arguably be applied is in the case of Miguel Alonso Contreras-Perez, a convicted sex offender accused of murdering a female correctional officer in September. "What do you do with a guy like that?" Waller asks. "He's already serving a life sentence. What, do you give him another life sentence for that?"

Or, for example, Edward Montour Jr., convicted of a 2002 attack on a correctional officer while serving a life sentence.

Montour's case is interesting in its own right. His attorney, David Lane, has put forth a constitutional opposition to the Colorado death penalty based on its supposedly cruel and unusual nature.

"The U.S. Supreme Court has decreed that the legislatures of the states must find a way to rationally distinguish between the many who don't deserve the death penalty from the few who do," says Lane. "And they have done this through the use of 'aggravating circumstances.'"

For years, Colorado's Legislature has added aggravating circumstances, conditions that qualify a murderer for the death penalty. These run the gamut from murdering a judge, or any elected state, county or municipal official, to murdering someone based on race.

Lane commissioned a study of the state's murder cases from 1999 to 2010, finding that aggravating circumstances were present in 92 percent of all murder cases, but only in 1 percent did prosecutors seek death.

"The point of the Supreme Court decision is that it can't be left up to the tender mercies of prosecutors to narrow the field" of who can receive the death penalty, Lane says. "It is a legislative function."

Despite his opposition in 2009, Morse says that his stance on the death penalty is not set in stone.

"I think Colorado does a very good job of administering the death penalty but I also think that we also spend an awful lot of money doing it with no deterrent effect," he says. "It's not a bill I would bring, but if somebody brings it, I wouldn't say for sure that I would be a 'no' vote; I don't know. I'll struggle with that one if it comes back."

However, if the judge rules in Lane's favor, the legislative debate could become moot.

"Then the existence of the death penalty, theoretically becomes unconstitutional, and it doesn't matter what we do," says Morse. "If the judge rules that this is in violation of the 8th Amendment, cool, they win. Game over."

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