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Arapahoe County District Attorney Carol Chambers raised eyebrows when she told reporters that convicting alleged Batman mass shooter James Holmes is not a “slam dunk.” She raised even more eyebrows when she said that she would take weeks to decide whether to seek the death penalty against Holmes. Chamber’s caution on getting a conviction and the death penalty for Holmes could be chalked up to a prosecutor’s tendency to play it close to the legal vest in hyper inflammatory cases. The top heavy betting odds are that Holmes will be convicted and he will get the death penalty. Chambers sought and got the death penalty for two people currently on Colorado’s death row. She is the only DA in the state to push for the death penalty in a capital case the last five years.
This doesn’t mean that the debate about the death penalty for Holmes won’t continue. There are troubling reasons why. One tip was a small poll in the on line publication, EncinitasPatch. It found that a significant minority of the respondents opposed the death penalty for Holmes on either legal, ethical, or pragmatic grounds. The legions of comments on what Holmes fate should be on blogs, websites, and in the press also show much ambivalence over whether the death penalty will mean much in Holmes’s case.
Death penalty opponents and supporters pretty much agree on a couple of things. One is that the long time lag, the endless appeals, the stunning cost to work through a death penalty case, and the watch and wait agony of family members of the killer’s victim(s), render any deterrent impact virtually nil. The other is the seeming arbitrary, random, inconsistent, and patch work application of the death penalty has soured even the most enthusiastic the death penalty advocates on its effectiveness.
Holmes is a good example of the problem. He’s accused of gunning down 70 persons. That makes him a multiple killer. But a high scorecard of victims alone doesn’t necessarily make him anymore a prime candidate for the death penalty than if he was accused of killing one person. The list of those who have committed multiple murders but didn’t get the death penalty is endless. It includes mafia hit men, wealthy celebrities, businessmen and athletes. There are roughly 9 to 10,000-plus homicides in America on average; only a few hundred of those convicted of murder get the death penalty.
Legal experts and philosophers fiercely debate whether one life is more valuable than another, and there’s tacit recognition in American law, public policy and custom that some lives are, in fact, more valuable than others. Holmes’s alleged victims are a cross section of ages, genders, and occupations and most hail from solid working and middle class families. This makes it more likely that he will get the death penalty.
The flip side of that is that if a killers victims are poor, young, minorities, and from inner city, neighborhoods, the likelihood of getting the death penalty is diminished. A decade ago in Washington, the so-called Green River Serial Killer, Gary Ridgway was convicted of nearly 50 heinous and grotesque rapes and murders during a span of years. The victims were poor, female, and many were runaways, drug users or prostitutes. Their families were outraged at the snail’s pace of justice in the case. Yet, Ridgway was allowed to cop a plea and escaped execution. A CNN poll at the time found that most Americans were appalled by the deal and wanted Ridgway executed.
There are countless examples where states have executed men and women convicted of a single killing while those that committed multiple killings escaped the executioner’s gurney and received life sentences.The Supreme Court rendered moot the debate over the proportionality of capital punishment when it ruled in 1984 that the Constitution does not require the punishment to always fit the heinousness of the crime. The Court did urge the states to prevent "excessive" or "disproportionate" sentencing in death penalty cases.
Though not legally obliged, most states with capital punishment have set "mitigating circumstances"—age, mental capacity, abuse (sexual, drug and alcohol)—for judges and juries to consider in determining whether a death sentence is appropriate. Many studies have found that many of the death row prisoners have either been beaten, brutalized, sexually assaulted or are mentally retarded or sub-literate.
The colossal frustrations, doubts, and anger over who gets the death penalty and who doesn’t along with the astronomical cost of it has fueled the clamor to either speed up the execution process, or scrap the death penalty completely. More states have done just that. The Colorado state legislature came close to abolishing the death penalty, but still keeps it on the books. It has used it in only one case during the past three decades.
Holmes’s defense team will pull out all stops to depict him as deranged, tormented, and fantasy obsessed. That‘s not likely to fly very far given the passions and notoriety of the crime. But it will spark fierce legal and public debate over just why we still have a death penalty, and who should get it.
Earl Ofari Hutchinson is an author and political analyst. He is a frequent political commentator on MSNBC and a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the author of How Obama Governed: The Year of Crisis and Challenge. He is an associate editor of New America Media. He is the host of the weekly Hutchinson Report on KPFK-Radio and the Pacifica Network.
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