James Holmes – The Case Against the Death Penalty

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”.

6 thoughts on “James Holmes – The Case Against the Death Penalty”

  1. This is a politely reasoned analysis, but it does not address several points or issues. At least one is glaring.
    You list the primary aims of sentencing in U.S. criminal common law. While it might be a complete listing in law (I don’t know, so I am taking your representation as factual), it also illustrates why so many people believe that, very often, as Mr. Bumble asserts, “If the law supposes that, the law is a ass…a idiot. The law is a bachelor; and the worst I wish the law is that his eye may be opened by experience…by experience.” For any thinking person, a fifth consideration must be undertaken if a civil society has a chance of continuing, and this fifth consideration must rise in prominence among its fellows as human weight accumulates in the country and in the world. It is this: A society that wishes to thrive, or even survive, must be willing to take out its trash. Call it whatever you like; weeding the garden, pruning the tree, cleaning the house, taking out the trash. Aside from the practical considerations, there is ample moral basis for culling the herd. But let’s just consider the practical first and foremost.
    I’m glad you chose this particular case to write about, because, without any doubt of guilt whatsoever, it makes for a sharp illustration. I would like to hear you make the case in favor of expending even one cent taken from the toil, sweat, blood and tears of civil persons who spend their lives caring for their loved ones, and who never infringe on the rights of others to do the same, to feed, clothe, shelter and doctor a person that has proven himself unwilling or incapable of doing the same. It is immoral. It is outrageous theft. The cost to a civil society is crippling. Measured over a longer span than most of us will live, the costs ultimately can’t be borne, and the civil society will collapse. For murder, for rape, for forcible entry, for violent robbery, death. Only death, without mitigation or extenuation. And not in some preposterously elongated legal proceeding spanning decades, but forthwith. A prompt and fair trial followed by one single expeditiously conducted appeal within the same 12-month year as the conviction is quite enough. More than that is a tortuous construction of nonsense that has built upon itself over the centuries of our American civilization through the industrious and diligent efforts of lawyers and social Utopians. Lawyers have done it because it benefits them; we can understand, if not completely forgive, venality and promotion of self-interest. Social Utopians have done it because they are, and always have been, mentally ill. Paradoxically, lawyers and social Utopians have made it impossible for society to avoid suffering grievously; by insisting upon warehousing miscreants endlessly, the costs to do so in “humane” ways is not bearable. By torturing nearly to death any common-sense interpretation of the terms “speedy trial”, “cruel and unusual” and “due process” they have rendered the alternative to endless warehousing even MORE expensive. The lawyers win. The miscreants win. Good people (underpinning the civil society) and the civil society itself lose. Social Utopians do what they have always done; remain oblivious to the destruction they’ve brought to sane people and the civil society, and, like the Mad Hatter, re-apply themselves to their insane pursuits with renewed vigor.
    To sum up this point, it is a mistake to view everything in the present context of what the law is and does, when the law has been perverted, circumvented and bent into harness for the good of the few since the establishment of the constitution, beginning, most probably, before the ink was dry on the original. The perversion of “the law” is a wonderful example of gradualism and the dangers inherent in even the slightest straying from the constitution. It is a wonderfully worded document, perverted, soiled and disrespected by those whose sworn duty has been to protect it. Simply put, we are living on borrowed money ($.40 of every dollar spent by our federal government) and we are living on borrowed time as well. One can’t glibly speak of a million dollars to house an irredeemable miscreant for life or nearly triple that to the kill the same without answering to the people from whom this money has been stolen, and without explaining how this can continue. Your argument is based on a logical fallacy, and that is that there are two alternatives, and that we must therefore choose between the one and the other.
    Go back in American history to a time before the machinations of lawyers and Utopians were able to bring us to this present sorry state. Did the governments (state and federal) sanction killing criminals? If so, can it be argued that it is not within the constitutional purview of these governments to continue to do it? If so, in what year, precisely, did the constitution suddenly begin to prohibit the death penalty? Did it take our governments, in those days, decades to carry out a lawful death sentence? Was the government willing to spend equivalent dollars of the time to warehouse inmates, or to extend into silliness the process of appeals?
    I haven’t fully articulated my objections to some of your conclusions, but it would be ponderous of me to continue, and the body of my remarks gives enough flavor for you to interpret what some of my other finer points would be. I will only address one final thing, briefly; the possibility of innocence vs. the irrevocable nature of the death penalty. Some innocents will always be caught up in the imperfect net of a civil society’s justice systems. To borrow from Madison, I will say that I cannot undertake to lay my finger on that article of the constitution that guarantees justice to be perfect, or fully within the attainable realm of man. In other words, the civil society makes omelets. Some eggs will be broken. I know; easy for ME to say. But it’s true and unavoidable. To argue against the death penalty on this ground is to demand a degree of perfection in our justice system that exists nowhere on earth, in this or any other system of government, especially. I believe we preserve polite society by eliminating at the least reasonable cost in time and treasure those who don’t want to live side by side with us in peace and harmony. It’s dirty work, not for the faint-hearted, but it has to be done.

    Liked by 1 person

  2. The killing this morning is another compelling case for retribution, without a doubt. It is uncertain though, especially with Holmes, whether the imposition of death is actually punishment at all. Many would argue, that with Holmes locked away without the possibility of parole, the trash has been taken out. The idea that the only proper retribution is removing the person from the face of the earth is actually a topic of debate, even among victim’s survivors.

    It is easier to accept the imperfect justice argument of Madison where a prisoner is exonerated and released from prison after 25 years; Less so where 1% of those already killed were very likely the wrong guy! That is slightly more than collateral damage.

    The constitution clearly allows for the death penalty, contemplating deprivation of life, but that concept was not decoupled from due process, and that is unfortunately where the cost comes in. You were correct in pointing out that the case made above looked at things as they are, not necessarily as they should be. This does create a bit of a false choice between expensive incarcerations and expensive killings. Assuming your alternative would be faster, cheaper executions, I would only point out that Texas is king among American states in implementing the “express lane” death chamber, but their cost variance between life without parole and the electric chair is actually worse than many. (750k vs. 2.3m at last reliable estimate).


  3. I don’t think “retribution” is a good word for what I described at length above. Retribution is more likened to vengeance than a dispassionate process that simply recognizes the greater benefit to society in not endlessly warehousing violent offenders, many of whom are repeat offenders who have been loosed on society again to repeat the infliction of misery, death and destruction for which they were originally identified and separated from us behind bars. You use “retribution” more than once in your rejoinder, which makes me believe that you are not drawing a distinction between execution for the sake of vengeance and dispassionate execution of rogue animals as the fairest and most wholesome solution for society. Further, I don’t see how the trash has been taken out when we are forced to pay a million dollars or more to “store” the trash in an expensive container. Your point about the greater expense of executions vs. lifetime incarceration is a good one, but it exemplifies the perversion of our justice system and the need to correct it much more than it speaks positively for that alternative. Actually, my borrow from Madison was not a direct quote, but a feeble attempt at humor. I wasn’t intentionally being dishonest; I was trying to be funny. His actual quote was “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” I apologize. I thought it worked to illustrate that the constitution does not guarantee perfect justice (and I like the sound of it.)

    I am a fervent believer in due process, but I contend that due process as it existed in the days of our founders was much more sensible, timely and honest than what (and I hate to keep capping on lawyers, but…) 200+ years of debasement by the legal profession and SJWs has turned it into.

    Finally, understanding that even in Texas, executing a death sentence is expensive, I can only say that I am arguing for reform and a return to common sense more than I am advocating for executions as a cheaper solution.

    Your piece is thought provoking, and I have to concede the point to you that the one alternative you advocate is cheaper than the other under our horribly corrupted contemporary justice system. So you win, but this has been fun.

    Liked by 1 person

  4. Oh, but for the record, I don’t want to win!

    It is possible that I would share your view, if it were my child, parent, sibling, etc. in the casket. I suppose there is no way for me to guess how I would feel.

    I mainly intend to make an alternative case against the death penalty (distinguished from the abolitionist variety) that includes less bleeding heart humanism, and more pragmatic conservatism. The case of James Holmes was especially unique due to his thoughts on the absurdity of life. The thought occurred to me: if life is so absurd, then he should be forced to endure it in a setting unlike one he has ever contemplated.

    Thank you for discussing it with me.


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