Colorado prosecutors argue for seeking death for James Holmes WESTMINSTER, Colo., Oct. 2 (UPI) -- Colorado has few people on death row because the penalty is reserved for the worst offenders, prosecutors in the Aurora theater-shooting case argue. In documents filed last week and released Tuesday, the prosecutors rebutted arguments raised by lawyers for James Holmes, The Denver Post reported. Prosecutors in the 18th Judicial District say Holmes is eligible for the death penalty if he is convicted of killing 12 people in a shooting spree during a midnight showing of "The Dark Knight Rises." Holmes' lawyers argued that the death penalty is arbitrary in Colorado because it is used so rarely. The state has executed only one person, in 1997, since passing its current death penalty law in 1977, and has only three people under sentence of death, two of them for the same murders-for-hire. "What the defendant characterizes as arbitrary is the appropriate and constitutional exercise of discretion by the prosecution," Rich Orman, a senior deputy district attorney, wrote. The defense lawyers also said all three of the men on death row were prosecuted in the 18th District. Prosecutors in the district are also seeking the death penalty for two defendants awaiting trial, one of them Holmes. "Certainly prosecutors cannot choose the murderers that commit crimes in their jurisdictions," Orman responded.