Littwin: Let Colorado’s death penalty conversation begin (column)
Fair and unbalanced
What should have been obvious to everyone from the start of the Aurora theater trial was that no good ending was possible.
Which is why the trial should never have taken place.
The decision to go for the death penalty for James Holmes risked two things: failure and success. Failure meant the horrors of that night would be continuously relived, hearts broken and re-broken and broken yet again in testimony that broke all our hearts, and all for a result — a life sentence without possibility of parole — that was offered before the trial had begun.
And success? What is success in a death-penalty case in Colorado?
A death-penalty verdict means years upon years, maybe decades upon decades, of appeals from death row and, with those appeals, the horrors relived and hearts broken over and over again. And since 1967, death-penalty verdicts have meant a total of one execution in Colorado. That’s one over the last 48 years.
I don’t know what George Brauchler, the prosecuting DA, was thinking.
Because success, in this case, also meant executing a person who was clearly mentally ill. All the psychiatrists who testified at the trial — those who thought he was legally sane and those who didn’t — put Holmes somewhere on the schizophrenia spectrum. I doubt anyone believed an insanity plea would save Holmes from conviction. But, the long and expensive trial was basically a prelude to the penalty phase: Would the jurors sentence a mentally-ill person — no matter how heinous his crime — to death?
We now know they wouldn’t. And, so the question now is what the verdict says about Colorado’s death penalty. After all, if Holmes, a mass murderer, gets life without parole, who deserves death?
That’s a tough question, and not just one for a philosophy test. It seems like a tougher question than the next capital punishment jury should have to answer.
Juror #17, the one juror who has talked to the press, has given us the only insight into this jury’s thinking. The jury was death-qualified, meaning all the jurors had sworn their willingness to vote for the death penalty. Death-qualified juries are obviously stacked in favor of the death penalty, but it doesn’t necessarily work out that way. According to Juror #17, one juror was firmly opposed to the death penalty for Holmes and two others were wavering.
If the decision stunned most people, it shouldn’t have. It was never going to be easy to get a unanimous vote for death, and it had to be even harder when the person on trial was mentally ill. Juror #17 remarked on how civil the deliberations were. No one in that jury room was apparently ready to dispute the considered opinion of anyone who had had to sit through that trial in judgment.
Brauchler had said death was the only justice in this case. One poll said two of three Coloradans agreed with Brauchler. It’s easy to see why. Holmes brought terror that night to those he killed and wounded, to their families and to the rest of the community.
But, our take on the death penalty has changed in recent years. It’s not just the polls that have moved. You know nothing is the same when Nebraska, of all places, has outlawed the death penalty. Several death-penalty states have declared a moratorium. Gov. John Hickenlooper risked re-election to put Nathan Dunlap’s execution on hold.
The ambivalence makes sense, and not only because America is the lone Western democracy with the death penalty. It’s a whole list of things, beyond the moral issue. We’ve seen DNA evidence, sometimes brought decades after the cases have been decided, set innocent people free. We’ve seen botched executions and states going to absurd lengths to find someone still willing to make the deadly cocktail used for lethal injections.
As Holmes went to trial, there was every chance there would be no death penalty in Colorado — and maybe in the country — by the time he might have been executed. The random application of the penalty — only seven states executed anyone last year — has caused U.S. Supreme Court Justice Steve Breyer to call it “the antithesis of justice.”
When Hickenlooper granted Dunlap a “temporary reprieve,” he said it was time for a statewide conversation on the death penalty. The conversation that Hickenlooper has rigorously avoided ever since now must begin. And, with the Holmes decision as a clear conversation starter, there is no shortage of talking points.
You can’t have one execution in 48 years and three men now on death row — all of them, it turns out, African-American — and think the law is working. We can agree it’s not a deterrent. We can agree that it’s rarely pursued. And now, we can agree that a death-qualified jury didn’t apply it to a mass murderer.
Mike Littwin writes a column for the Colorado Independent.
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