On Friday August 7, the jury announced that James Holmes would spend the rest of his life in prison after having been found guilty of murdering twelve people in at a movie theater in Aurora, Colorado in 2012. Many thought a death sentence was inevitable. Now some observers are saying that this result should put an end to the expensive and time-consuming death penalty in the State of Colorado. Colorado has executed only one person since the death penalty was reinstated in 1976 with Gregg v. Georgia, 428 U.S. 153 — and that execution was roughly eighteen years ago in 1997. Essentially, the death penalty is defunct in Colorado. By contrast, my home state Alabama has executed fifty-six people in the post-Greg era. What accounts for this difference between Alabama and Colorado?
One reason is that Colorado has a robust, reasonably well-financed and well-trained public defender system. In Alabama, capital defense is left to a system of appointment where the only qualification is that one have five years of “active practice in criminal law”. There is no requirement that any of that experience involve a felony or any degree of homicide.
A second reason for this difference is that Colorado requires that a death sentence must be the unanimous decision of the jury. One juror only needs to vote for life and the death penalty cannot be imposed. Alabama system is vastly different. A jury’s life or death votes only constitute a recommendation that the judge may follow or disregard. To find someone guilty the verdict must be unanimous, but to “merely” recommend a sentence of death, there is no requirement of unanimity.
In Alabama, the vote of the jury on life without parole versus death is only a recommendation to the judge on the sentence the defendant is to recieve. The judge decides the sentence. The judge can just disregard the recommendation of the jury for life and sentence a man or woman to death. Ten times an Alabama judge has overridden a 12-0 recommendation for life since 1976. Common sense tells you that this is a dangerous thing where the trial level judiciary are elected. Can anyone really be sure that political considerations don’t creep in during an election year? This system lacks basic trustworthiness and integrity. Justices Sotomayor wrote a well reasoned dissent in a 2013, criticizing the override in terms of violating the Sixth and Eighth Amendments. The days of the advisory verdict and override are numbered.
I want to say something about why I was satisfied with the sentence in Colorado. A wife of a victim of this crime said in a media report that she hoped that James Holmes would just fade into oblivion. The surest way for this to happen is a sentence of life without parole. Far fewer resources will be expended and far less attention will be paid to James Holmes now. The families of the victims will be spared the long and arduous process of death penalty appeals and habeas proceedings that surely would have had the result of re-traumatizing them. In due time, James Holmes’ family will probably visit him very infrequently or stop visiting him altogether. After this tragic story is replaced by another one, we will hear the name of James Holmes very few times, maybe only when he dies behind bars.