Remember when support for or opposition to capital punishment used to be a major campaign issue? It is rarely discussed anymore. It is one issue that has near overwhelming support among US citizens making it a political non-issue. Since 1936, support for the death penalty has only dropped below 60% for a 16 year period around the 1960s.
Yesterday the Colorado theater shooter (12 killed, 70 wounded) was spared his life by a Colorado jury. Two things made this case unique from other mass murders. First, the shooter survived. Second, his insanity defense was rejected. This looked to be the easiest slam dunk death sentence in the history of the penalty. The Joker was going to get the needle. But something happened in that jury room, and from the few accounts that have surfaced, nothing was going to change the mind of at least one of the jurors.
Revelations in Holmes’ notebooks sent to his family and his psychiatrist point to a very intelligent man who was determined to prove that life was absurd and without meaning. It is such a difficult perspective for anyone to even remotely comprehend, that ordinary folks will only refer to his rantings as insane. Pure evil. The organization and coherence of his planning and follow through are so sadly impressive that one understands why he was determined to be sane. If he isn’t pure evil though, then no one is.
The primary objections held by hard core death penalty abolition advocates are 1) the possibility of innocence, and (2) the racial bias inherent in the process resulting in disproportionate death sentences for black killers. There was no question of innocence in this case. The factor of Holmes’ race will certainly be discussed given the outcome, but at least in the eyes of a death penalty abolitionist, Holmes race was not a factor that would improperly cause a jury to invoke the death penalty. So you had a case that did not trigger the two primary objections to a death sentence. Where is an abolitionist or civil rights advocate to look for reasons not to kill this monster?
There are four primary aims of sentencing in US criminal common law. Retribution (vengeance), Specific Deterrence (prevent Defendant from committing this crime again), General Deterrence (prevent others from committing a similar crime), and Rehabilitation (help this person be productive in society again). Based on the crime the different goals are weighted differently, but suffice it to say, rehabilitation is not factored in significantly in the case of murder. Where the defendant has been found guilty and the only alternatives are life without parole and death, specific deterrence is accomplished either way (aside from the very low probability risk of escape), and is thus not an issue.
But what about retribution? Do we want our government taking vengeance, even on our behalf? Whether the government sanctioned slaying of a convicted killer actually serves the victim’s families’ interests, and gives them so-called “closure”, is not exactly settled.
Constitutional conservatives should oppose the death penalty. Not because it is cruel and unusual, although it could be. Not because the states don’t have the constitutional authority in black and white. For three reasons, one of which we share with the abolitionists: 1) Possibility of innocence, 2) Cost and 3) simple governmental propriety.
Innocence – Simply put, sometimes states get it wrong. Juries get it wrong, and lawyers get it wrong. You can’t turn back an execution. Since 1973, over 1,400 people have been executed in the United States, and 155 have been sentenced to die and later completely exonerated. It is almost impossible to tell how many of those actually killed may have been innocent, because courts do not generally entertain claims of innocence once the defendant is dead, but there is strong evidence that at least 10 innocent men have been executed. That is nearly 1%, and when you are allowing the state to kill your neighbor, those are horrible odds.
Cost – If we are to stay true to a core principle of conservatism in the use of taxpayer funds, then we cannot ignore the statistics from across all states with the death penalty, proving that the death penalty and its mandatory appeals cost at least twice as much as life without parole in the highest security setting. This varies across states, but a ballpark average figure would be 1 million to incarcerate a prisoner for life, compared against 2.5 million to house them on death row, fight appeals, and ultimately carry out the execution. This does not even quantify the intangible value of the victim’s family’s time spent in limbo, waiting for the mythical “closure”.
Governmental Propriety – We should all pray we never have to experience the loss of a loved one to any murder, let a lone one as gruesome as this one. The families are in anguish, and clearly wanted Holmes to die. If it was our child, spouse, sibling or parent with a shotgun hole in their body in a sticky cinema seat holding a box of hot tamales, anguish and rage wouldn’t permit us to accept anything less than blood. The law, however, is not designed to carry out a sentence tailored to the desires of the victim’s families. If it were, the death penalty would be completely off the table for Dylan Roof (of Charleston AME shooting fame), because his victim’s families have already forgiven him and wished mercy upon him.
It is justifiable for the tormented survivors of the slain to block out restraint and caution and allow blind rage (or forgiveness, as the case may be) to govern, but this vengeance and emotion is not appropriately imputed to the state. We should fear a state that acts out of anger.We should be repulsed by a government license to kill, for any purpose, under any circumstance other than defense or exigency. Call it civility, enlightenment or simple governmental propriety.
Killing a criminal who has already been proven not to value life is ungainly. James Holmes did not get off easy. He will continue to toil over his existence, and is likely to have a long row to hoe if he is permitted to mingle with the population in his new forever home. The only remaining question may be whether he ends his own life or simply walks into the wrong corner of the jungle. Sadly he may not be able to make that final entry in his notebook. The one that says “yes indeed life is absurd and meaningless, but there is also a logic and order to it, and it has a natural way of correcting its mistakes”.