Criminal Justice Professor James Acker of the University at Albany recent­ly dis­cussed the deci­sion by the District Attorney to seek the death penal­ty against James Holmes, the man accused of killing 12 peo­ple and wound­ing many oth­ers at a movie the­ater in Aurora, Colorado. In addi­tion to con­cerns about the defen­dan­t’s pos­si­ble men­tal ill­ness, Acker raised a num­ber of ques­tions about this course of action: ​“Will the vic­tims and their fam­i­lies some­how be made whole? Would the time and mon­ey devot­ed to achiev­ing this man’s death not be bet­ter spent on ser­vices and law enforce­ment ini­tia­tives meant to repair and pre­vent the mind­less dev­as­ta­tion of crim­i­nal homi­cide? Would this man’s exe­cu­tion serve an inef­fa­ble impulse for jus­tice?” In his op-ed for CNN, Acker also exam­ined the rea­sons for the dra­mat­ic decline in the use of the death penal­ty in the U.S.: ​“a revul­sion against the awful prospect of exe­cut­ing an inno­cent per­son; the racial and social class inequities imbued in the death penal­ty’s admin­is­tra­tion; the enor­mous finan­cial bur­den placed on state and local bud­gets in sup­port­ing cap­i­tal pros­e­cu­tions; the avail­abil­i­ty of life impris­on­ment with­out parole to keep the streets safe.” He con­clud­ed by ask­ing, “[W]hat good would be accom­plished through this rit­u­al act – [and would] the lives of the indi­vid­ual vic­tims and Coloradoans gen­er­al­ly [] be made bet­ter, and jus­tice served by his lethal injec­tion.” Read the full op-ed below.

Why death penalty for Holmes wouldn’t bring justice

If any­one deserves the death penal­ty, sure­ly it is a man who metic­u­lous­ly plans a mass mur­der and mer­ci­less­ly car­ries it out, shat­ter­ing the lives of inno­cents and their loved ones, rend­ing the very bonds of humanity.

Surely such a man deserves this pun­ish­ment — if, that is, his grip on moral rea­son­ing has not been evis­cer­at­ed by men­tal ill­ness so severe that he can’t be respon­si­ble for the con­duct that would ren­der him guilty under crim­i­nal laws. (Such laws have for cen­turies demand­ed blame­wor­thi­ness as a pre­req­ui­site to con­vic­tion and punishment.)

And if the months of tri­al prepa­ra­tion, years of hear­ings, tri­als and appeals that devour mil­lions of dol­lars is the best use of those pre­cious resources because — in the words of the pros­e­cu­tor rep­re­sent­ing the peo­ple of the state of Colorado in the case against James Holmes — ​“jus­tice is death.”

There are ques­tions to con­sid­er as well:

Will the vic­tims and their fam­i­lies some­how be made whole?

Would the time and mon­ey devot­ed to achiev­ing this man’s death not be bet­ter spent on ser­vices and law enforce­ment ini­tia­tives meant to repair and pre­vent the mind­less dev­as­ta­tion of criminal homicide?

Would this man’s exe­cu­tion serve an inef­fa­ble impulse for justice?

Would it be nec­es­sary to ensure that he does not kill again or to pre­vent killings by others?

A claim of inno­cence does not stalk Holmes’ tri­al, nor does the lega­cy of race dis­crim­i­na­tion that has so long infect­ed cap­i­tal pun­ish­ment. He will be rep­re­sent­ed by well-trained and com­pe­tent lawyers. He is accused of killing 12 peo­ple and wound­ing 58 more, unas­sum­ing indi­vid­u­als whose mis­step that fate­ful July evening was gath­er­ing to enjoy a movie.

The wheels of his cap­i­tal pros­e­cu­tion have now been set in motion after the offer made by Holmes’ defense coun­sel to plead guilty in exchange for a sen­tence of life impris­on­ment with­out the chance of parole was reject­ed by Arapahoe County District Attorney George Brauchler.

Judgments about Holmes’ crim­i­nal respon­si­bil­i­ty and pun­ish­ment now will be left to a jury. Under Colorado law, as in oth­er states that autho­rize cap­i­tal pun­ish­ment, that jury will first be ​“death qual­i­fied,” that is, purged of cit­i­zens whose faith or moral pre­cepts would not per­mit them to sen­tence Holmes to death.

But there is more to cap­i­tal pun­ish­ment than the moral pre­cepts and more that explains why the death penal­ty is a dying insti­tu­tion through­out the United States — cer­tain­ly in Colorado — and worldwide.

In a coun­try top­ping 300 mil­lion in pop­u­la­tion and plagued annu­al­ly by in excess of 13,000 mur­ders, 78 offend­ers were added to the nation’s death rows last year, down 75% from the 326 sen­tenced to die in 1995.

In 2012, 43 exe­cu­tions were car­ried out, less than half of the 98 nation­wide in 1998. Three con­vict­ed mur­der­ers inhab­it Colorado’s death row, a state that has car­ried out a sin­gle exe­cu­tion in the past 45 years.

Many fac­tors account for the dra­mat­ic down­turn in the coun­try’s his­toric affin­i­ty for cap­i­tal pun­ish­ment: a revul­sion against the awful prospect of exe­cut­ing an inno­cent per­son; the racial and social class inequities imbued in the death penal­ty’s admin­is­tra­tion; the enor­mous finan­cial bur­den placed on state and local bud­gets in sup­port­ing cap­i­tal pros­e­cu­tions; the avail­abil­i­ty of life impris­on­ment with­out parole to keep the streets safe.

These are cou­pled with the pauci­ty of evi­dence that cap­i­tal pun­ish­ment deters mur­der and the grow­ing recog­ni­tion that the U.S. is sore­ly out of step with oth­er democ­ra­cies around the world that have long since renounced it as a vio­la­tion of fun­da­men­tal human rights.

If Holmes is con­vict­ed in a tri­al now sched­uled to begin not ear­li­er than February 2014, if he is sen­tenced to die, if no error is found by the appel­late courts that will review the pro­ceed­ings, and if his case is typ­i­cal of oth­er cap­i­tal cas­es in Colorado and else­where, he would like­ly not be exe­cut­ed until 2029.

The mur­der vic­tims’ fam­i­ly mem­bers — those who sup­port­ed a death sen­tence in the first place (and many will not have) — who seek jus­tice or final­i­ty through his exe­cu­tion will gain nei­ther until then. Holmes’ par­ents, who were in court when Brauchler announced that the pros­e­cu­tion would seek their son’s cap­i­tal pun­ish­ment, will also await that long-post­poned res­o­lu­tion, sen­tenced in effect to suf­fer through those years as well.

While debat­ing the abo­li­tion of cap­i­tal pun­ish­ment in England in the 1960s, Lord Chancellor Gardiner remind­ed the House of Lords: ​“When we abol­ished the pun­ish­ment for trea­son that you should be hanged, and then cut down while still alive, and then dis­em­bow­eled while still alive, and then quar­tered, we did not abol­ish that pun­ish­ment because we sym­pa­thized with trai­tors, but because we took the view that it was a pun­ish­ment no longer con­sis­tent with our self-respect.”

Lethal injec­tion is some steps removed from Lord Chancellor Gardiner’s descrip­tion of the British prac­tice of draw­ing and quar­ter­ing capital offenders.

Some today will main­tain that draw­ing and quar­ter­ing would be a fate rich­ly deserved by Holmes. Yet despite the deep emo­tions and oth­er jus­ti­fi­ca­tions that might be offered in sup­port of Holmes’ exe­cu­tion, we might ask what good would be accom­plished through this rit­u­al act — whether the lives of the indi­vid­ual vic­tims and Coloradoans gen­er­al­ly will be made bet­ter, and jus­tice served by his lethal injec­tion. We might ask whether, ulti­mate­ly, such pun­ish­ment would be con­sis­tent with our own self-respect.

The answer to whether James Holmes should be exe­cut­ed arguably is less depen­dent on what we think about him than what it says about us.

James R. Acker is a dis­tin­guished teach­ing pro­fes­sor at the School of Criminal Justice at the University at Albany. He is the co-edi­tor of sev­er­al books address­ing cap­i­tal pun­ish­ment issues, includ­ing ​“The Future of America’s Death Penalty: An Agenda for the Next Generation of Capital Punishment Research” (Carolina Academic Press 2009), and most recent­ly ​“Wrongful Conviction: Law, Science, and Policy” (Carolina Academic Press 2011), co-edit­ed with Allison D. Redlich.

(J. Acker, ​“Why death penal­ty for Holmes would­n’t bring jus­tice,” CNN, op-ed, April 3, 2013). See Mental Illness and Victims.

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