I expected that my next post would offer a few thoughts on last night’s Republican “debate,” and I will do so when I get the chance. But for now, I offer a quick reaction to the news that James Holmes will spend life in prison without parole, and not be sentenced to death. It is important to realize why I describe that news in the passive voice. It is because the jury could not reach a unanimous verdict, and therefore, the jury did not affirmatively sentence him to anything. Rather, by operation of Colorado law, the failure to reach a unanimous verdict defaults to life without parole.
It is just that Holmes was convicted and that he will spend his life incarcerated. I have made no secret of the fact that I believed his case was an appropriate one for at least seeking a death sentence. In many capital punishment systems, the finding that the mitigating factors did not outweigh the aggravating factors would have been enough for a death sentence. Not in Colorado, which takes the inquiry a step further. (this strikes me, by the way, as odd: once it is determined that aggravators outweigh mitigators, what is left to decide? What basis for mercy does a juror have at that point, other than a sheer unwillingness to enforce the death penalty?)
So my first observation is this: the real disappointment here is not that Holmes did not receive the death penalty (though I believe that the State properly sought it), but rather, these default-to-life laws that exist in so many jurisdictions. A single holdout juror can literally dictate the sentence (Kent Scheidegger refers to this properly as the “single juror veto”). I’m sure that Kent and Bill Otis over at Crime & Consequences and Doug Berman at Sentencing Law & Policy will have more to say about the matter, and do so in their typically excellent way, so check them out.
Second, there will no doubt be satisfaction among the death penalty abolitionist crowd with this result (not for Holmes or his actions, of course, but with the sentencing outcome). Pay attention to this. For many of the very same folks who advocate the abolition of capital punishment will soon set their sights on life without parole. Many others already have. It is curious that in so much of the abolitionist commentary today, there is little talk of what the just and fitting sentence ought to be, in the absence of the death penalty. Yet there is a growing body of literature that is deeply critical of life without parole. The Supreme Court has even gotten into the act, having in recent years twice invalidated LWOP sentences as being “cruel and unusual” under the Eighth Amendment (for juvenile non-homicide offenders in Graham v. Florida, and as mandatory punishment for juvenile killers in Miller v. Alabama).
So as you listen to the abolitionists, undoubtedly grateful that Holmes did not receive the death penalty, ask yourself this: in the absence of a death penalty, would they support LWOP for Holmes? Or something even less severe? In a world without a death penalty, how would they punish James Holmes, or Dzokhar Tsarnaev, or Timothy McVeigh, or those who facilitated the September 11 attacks or perpetrated the James Byrd murder in Jasper, Texas? I know my answer. But I’m curious about theirs.