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Aurora, Acceptance, and Action

The massacre in Aurora, like other such incidents, seems to bring about an unquenchable desire to talk. It's particularly bad among media characters and politicians.  Almost all the talk is rote, platitudinous blather, and I wish it would stop.

We don't need talk.  We need two other things.  The first is acceptance.  Some really bad things happen in life, and often there is nothing to be done about them.  Every now and again, some evil and/or sick person takes it into his head to slaughter his fellow creatures.  In a free society (and even, I strongly suspect, in an authoritarian one), such things are impossible to avoid completely.  Acceptance of tragedy is not lassitude or indifference.  It's adulthood.

The second thing needed is action.  We know who did it and the scope of what he did.  The justice system should make a thorough inquiry into his background and thinking to ascertain, in particular, whether at the time of the shooting he knew right from wrong and had the capacity to conform his behavior to the requirements of law. Said inquiry only needs to take months, not years.  If it is determined that he was sane in the legal sense  --  as I say, a question that can be resolved relatively quickly  --  he should be executed forthwith.  What the country needs is not interminable process for the sake of process, nor delay for the sake of delay.  What it needs is a justice system that delivers justice.

Let's get moving.


Here I must respectfully dissent to the suggestion that a mere finding of "legal sanity" should result forthwith in the execution of any criminal defendant, both because I am a death penalty abolitionist, and because I recognize the importance of the critical safeguard, however inadequate, of a penalty trial with an individualized weighing of aggravating and mitigating circumstances before the life or death decision is made.

Should we really disregard the wisdom of former Section 210.6 of the Model Penal Code (1962) proposed 50 years ago, and effectively constitutionalized by _Gregg v. Georgia_, 428 U.S. 153 (1976) and its companions and progeny, most notably _Lockett v. Ohio_, 438 U.S. 586, 604-605 (1978), with its imperative that any mitigating evidence relating to the circumstances of the offense or the character and record of the offender must be admitted and considered in the penalty phase of a capital case? Recall that in 2009, the American Law Institute withdrew Section 210.6 based on a conclusion that it had proven inadequate to ensure minimal fairness.

As _Woodson v. North Carolina_ teaches us, capital offenders may suffer from "the diverse frailties of humankind," 428 U.S. 280, 304-305 (1976), which although providing no legal defense or excuse such as insanity may mitigate powerfully against the extreme penalty.

This may be especially likely in mass shooting incidents, where mental illness is often almost a matter of _res ipsa loquitur_ (the act itself suggesting a deranged mind). Even under a liberal standard of legal sanity, the cup of capacity to conform to the law may appear at least half full, warranting a verdict of guilty of capital murder. Yet in the penalty phase, jurors may see that it is also half empty, warranting even from a retentionist viewpoint the still awesome and yet merciful punishment of LWOP, or better LWOP+R ("R" meaning labor and restitution) rather than death.

To call, in advance of a mass shooting suspect's trial, for a penalty verdict of death is either to prejudge the case before we even know what a mitigation specialist might find or the defense might present in favor of life in the penalty phase in the event of a capital conviction. Or else, it is to call for the overruling of the whole _Gregg_-_Woodson_-_Lockett_ line. Reinstating a literally or virtually mandatory death penalty would, I submit, be an exercise in truly misguided judicial discretion.

I commend you on a thoughtful and sober response. I respectfully dissent.

The sum of it is that you'd prefer a refined examination of possible mitigating factors. There's not a thing wrong with that -- if that were what happened, which mostly it is not. What happens instead is a decade-plus (or, in California, two-decades-plus) charade/marathon in which the object of the game is not to reach a conclusion about the defendant's mental state, but to avoid reaching such a conclusion (or, for that matter, reaching a conclusion about anything else).

Where delay is the name of the game, there is going to be push-back. Additionally, when fraud is the other name of the game, there's going to be push-back on that, too. Where the observable facts are ice cold (as here), the defense dives into unobservable, and thus easily fabricatable, "facts" about the defendant's psyche. Hence the ponderous appearance of the inevitable bought-and-paid-for shrink, brought in to mouth multi-syllabic words and fancy-sounding phrases to try to hoodwink the jury into thinking the defendant is out of his gourd.

It's not that this is never true. It's that it's so seldom true, but so often attempted, that it has become the boy-cries-wolf of capital defense.

One serious problem with the death penalty is that it has nowhere near the deterrent effect it could have if it were carried out closer in time to the murder.

If our system were truly diligent and determined to find out about this defendant's background, how long do you think it would really take? Six months? A year? One thing for sure is that it wouldn't take several years, and thus several years should not be allowed.

If he's actually bereft of his senses, fine, let's find out and put him away in a secure mental institution. But if he knew what he was doing and acted out of free will, there is simply no credible case, under present law and public opinion, to delay executing him.

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