If Not Now, When?
October 17th, 2022
Last week produced two stunning developments in the capital punishment world: the rejection of the Andre Thomas appeal by the United States Supreme Court, and the life verdict handed down to Nikolas Cruz in the Parkland High School shooting case. Each in its own way is revelatory of the dysfunctionality of the death penalty. Viewed in conjunction they paint the clearest portrait yet of a system that simply has never worked as advertised.
Let’s first consider the Cruz verdict, in which a deeply disturbed 19-year-old who killed 17 (including 14 children) and injured 17 others received a life sentence from a Florida jury. At first glance it would be hard not to consider the young Mr. Cruz among the “worst of the worst” for whom the death penalty is designed – after all, he was the perpetrator of the deadliest mass shooting to go to trial in United States history. But the crime itself does not dictate the sentence, and the jury was moved to life after learning Cruz’s tortured upbringing, which included the fact that his mother had drunk and done drugs during her pregnancy. That led Mr. Cruz to suffer from fetal alcohol disorder, a diagnosis that explained his many developmental delays and behavioral problems and no doubt led the jury to bestow the minimal showing of mercy that separates a lifetime in prison from a death sentence.
Many of the victim survivors, enduring the incalculable pain that most of us are fortunate to avoid, felt betrayed by the verdict. Egged on by prosecutors and a media hostile to the defense, they were led to believe that a death sentence was a foregone conclusion. Their dismay at the verdict prompted a remarkable statement by the Reverend Sharon Risher, herself a family member of one of the victims of the 2015 mass murder in the Mother Emanuel AME Church that ended in a death sentence for Dylann Roof:
“How can you not want vengeance for the killer? I was very conflicted, but by the time it was over, I knew that killing him would do nothing to help me heal. Yet in the Mother Emanuel case, the killer was sentenced to death. Because of that, we are still suffering in ways that could have been avoided. Last year at this time, Dylann Roof’s first appeal came up. It was six years after his crime, but just the experience of that appeal being a top headline in the news brought all of that anguish back not only to me, but on some level it ripped the scab off of the wounds of all of us touched by that crime.
This is the unintended but very real consequence of the death penalty. Rather than helping us heal, it keeps reopening our wounds. Because I know this from my own still-fresh experience, I hope the families in Parkland can see this as a turning point for them. Once the killer is sentenced, they can move toward healing.”
Two lessons emerge from the Parkland verdict. First, as the New York Times noted, “the verdict comes at a time when people are growing more wary of the death penalty.” Second, and perhaps more importantly, the life sentence for Mr. Cruz is not the outlier it seems at first blush. The horror and scope of the case cannot be doubted, of course; but there are a surprising number of highly aggravated cases in which compelling mitigation stories persuaded juries to return life sentences. (Russ Stetler, the former National Mitigation Coordinator and current member of the Board of Directors of the Atlantic Center, and two colleagues – Maria McLaughlin and Atlantic Center co-founder Dana Cook – have documented over six hundred highly aggravated cases (multiple victims, child victims, or law enforcement victims) where juries declined to impose death sentences. Their study, Mitigation Works: Empirical Evidence of Highly Aggravated Cases Where the Death Penalty Was Rejected at Sentencing, will be published later this year in volume 51 of Hofstra Law Review.)
While the Parkland verdict took many by surprise, the United States Supreme Court’s denial of the Andre Thomas appeal was utterly in keeping with the Republican-rigged Court’s disdain for due process. Thomas, a profoundly mentally ill Black man who killed his white wife and two mixed-race children because he thought they were Jezebel, the anti-Christ, and an evil spirit, removed one of his eyes a few days after his arrest based on a biblical passage. Some years after receiving a death verdict from a Texas jury, he removed the other eye. But his obvious mental illness wasn’t all – it turned out three jurors who imposed the death sentence on him had explicitly expressed their hostility to interracial marriage in their jury questionnaires, an issue his incompetent lawyers did not even ask the jurors about. Yet the six member Republican majority, most of whom were selected based on their membership in the Federalist Society, were not even willing to consider the issue. Justice Sotomayor, dissenting with Justices Kagan and Jackson, and citing an earlier Court precedent, noted the failure of the majority: “it is ultimately the duty of the courts ‘to confront racial animus in the justice system.’ That responsibility requires courts, including this one, vigilantly to safeguard the fairness of criminal trials by ensuring that jurors do not harbor, or at the very least could put aside, racially biased sentiments.”
There are two lessons to be learned from the Thomas case as well. First, there appears to be no depth of inept lawyering, mental illness or racism that will prompt this Court to interfere with the machinery of death; and second, that the highest court in the country is moving further and further from how the majority of Americans feel about capital punishment.
And there is one final lesson we should learn from last week. After Trump administration appointments, it is clear that we cannot rely on our Supreme Court to protect us from the racism or poor lawyering that infects death penalty trials. The mantle falls to us to persuade our legislators and prosecutors that juries across the country have spoken, and that capital punishment is no longer on our agenda.