In Aurora Shooting Case, a Public Pushback Against the Death Penalty

By Andrew Cohen

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R.J. Sangosti/Reuters

To give you a sense of how far the public debate over capital punishment has moved toward rationality over the past few decades you need only read Tuesday's house editorial in The Denver Post about a Colorado prosecutor's decision to seek the death penalty in the Aurora theater shooting case. "Justice is death," the prosecutor had dramatically announced Monday, telling the world the punishment he will seek against James Holmes, the young man accused of killing 24 people and wounding scores more at a "Batman" movie on July 20, 2012.

No, the newspaper responded, "justice" is a whole lot more than that. Here we have a slam-dunk case of guilt, a mass casualty count, a thoroughly unsympathetic defendant, a gruesome crime of gun violence that made international headlines, and yet the paper of record in the venue of the attack still came out against capital punishment. In the surest sign yet of the rise of the practical argument against the death penalty, and in a surprising blow to the emotional power of victims' rights groups, here's what the Post's editorial writers offered:

In making that choice, [Arapahoe County District Attorney George] Brauchler unfortunately rejected an offer from the defense that would have put Holmes behind bars until the day he died -- an offer that would have spared the public the painful spectacle of a long trial as well as the possibility that Holmes' attorneys might successfully pursue an insanity plea.

In other words, we think the decision was a mistake. Ironically, the decision also means Holmes is likely to remain in the news for many years. If he is sentenced to death, his appeals will undoubtedly last into the 2020s at least and quite possibly into the 2030s...

The theater shootings were so unique that perhaps Holmes would never quite become just another prisoner if allowed to plead guilty to first-degree murder and sentenced to life without parole. But there is no doubt that his notoriety will be renewed repeatedly for years to come if he ends up on death row.

Send him away forever. Save the money it would take to sentence him to death. Deny him the notoriety he might claim by litigating his capital case through the courts for 15 years. And all the while spare the survivors and family members of the victims the psychic trauma of reliving that awful night over and over again in court. Today, especially in cases marked by mental illness, the Constitution demands a level of due process in capital cases which almost always precludes the sort of swift justice that prosecutors seek and victims' rights groups demand.

The Post wasn't alone in its vocal challenge to the prosecutor's choice. In the southwest corner of the state, the editorial writers at The Durango Herald, not exactly known as a citadel of love for criminal defendants, also made the case against spending millions of dollars in taxpayer money to fight for a death penalty against Holmes. On Monday, the Herald's house editorial focused upon the opportunity costs of pushing for a death sentence where the defendant has signaled a willingness to accept responsibility and punishment for the crime:

For Holmes, Brauchler said, "justice is death." That may well be true. A better question, though, is what constitutes justice for his victims and the people of Colorado. At a time when the state is struggling to properly fund schools, parks and roads is killing him really worth the cost?

That question is particularly troubling in that it was revealed last week that Holmes had agreed to plead guilty and accept a life sentence without possibility of parole. With that, the state could be done with this, lock up Holmes forever and let the countless people he hurt get on with their grief, their healing and their lives - all at minimal cost.

There is no reasonable rebuttal to this argument. We all know it to be true. Absent the unusual scenario where the defendant gives up his right to appeal (see, McVeigh, Timothy J.), death penalty cases take decades and millions of dollars to resolve even where (as here) there is effective assistance of counsel, and timely court rulings, and even after Congress long ago sought to streamline the legal process by depriving capital defendants of key appellate rights in the Anti-terrorism and Effective Death Penalty Act.

This broader view of capital punishment-- focusing more upon society's broader priorities than upon retributive justice-- comes as the state prepares for another visit by President Barack Obama, who comes again to press for gun legislation. And it comes in the wake of a raucous debate in the state legislature over repealing Colorado's death penalty law. A measure to end capital punishment as a sentencing option failed last week after Gov. John Hickenlooper, a local businessman with national political aspirations, suggested he would not support it.

These two editorials tell us two very important things. First, they both mark and expand upon a national shift in the debate over capital punishment-- a growing recognition that death penalty cases almost always impose significant costs upon society that prosecutors simply aren't equipped to count. Second, they reveal that news organizations feel comfortable taking such positions about a high-profile case like this without fear of reprisal by news consumers and advertisers. Death may still be different-- but the power of the lynch mob clearly is waning.

The point here is not to debate whether the death penalty is appropriate in the case of James Holmes. Of course it is. The point is whether it is wise for Colorado to choose that particular punishment from among its sentencing options. These editorials would never have been published in 1996, the year the Oklahoma City bombing trials came to town and Congress passed the AEDPA. That they were published this week is bad news for the most earnest supporters of capital punishment even if it isn't necessarily good news for James Holmes.

This article available online at:

http://www.theatlantic.com/national/archive/2013/04/in-aurora-shooting-case-a-public-pushback-against-the-death-penalty/274601/