The Parkland Shooter Sentence And The Death Penalty
Another example of the arbitrariness of the death penaly
![[Death penalty - image of a stretcher with shackles]](https://otb.cachefly.net/wp-content/uploads/2018/03/Death-Penalty-1024x576-e1554217653419.jpg)
This past Thursday, after seven hours of deliberation, the jury for the convicted Marjory Stoneman Douglas High School shooter reached the decision that he will get life in prison, without the possibility of parole, for the killing of 17 people. More details on this from the Washington Post’s Tim Craig:
On each of the counts, jurors found that prosecutors had established aggravating factors including that the murders were especially cruel and heinous — indicating that the case met the threshold for death penalty eligibility. But they also decided that the most egregious elements of the attack did not outweigh the mitigating factors presented by defense attorneys. [….]
The gunman had already pleaded guilty to 17 counts of premeditated first-degree murder, and jurors had to decide on his sentence for each count. [The shooter] also wounded 17 other students and school staff members during his rampage in Parkland, Fla., a prosperous Fort Lauderdale suburb bordering the Everglades. [….]
Although the trial was designed to help South Florida heal after [the shooter]’s crimes shattered families and left Parkland students struggling with lifelong trauma, it also sparked a discussion over capital punishment as well as whether society should show any sympathy to killers who may be mentally deficient due to possible prenatal alcohol exposure.
In an interview with CBS’s Miami affiliate, jury foreman Benjamin Thomas said the decision “really came down to one specific” juror who believed [the shooter] “was mentally ill…. And she didn’t believe, because he was mentally ill, he should get the death penalty,” said Thomas, who said a total of three jurors ultimately voted to spare [the shooter]’s life. “It didn’t go the way I would have liked, or the way I voted, but that is how the jury system works.”
After the verdict was released, one juror wrote a letter to the judge identifying herself as one of the people who had voted against sentencing [the shooter] to death. In the handwritten note, she said she’d heard from another juror that some on the panel were accusing her of “having already made up my mind before the trial started. That allegation is untrue, and I maintained my oath to the court that I would be fair and unbiased,” she wrote. “The deliberations were very tense, and some jurors became extremely unhappy once I mentioned that I would vote for life.” [….]
To apply the death penalty [in Florida], the jury had to reach a unanimous decision.
https://www.washingtonpost.com/nation/2022/10/13/nikolas-cruz-spared-death-penalty-parkland-shooting/
This case demonstrates the underlying arbitrariness of the use of the death penalty in American courts. As noted above, there was no question of guilt–the shooter had pled guilty. And the jury also acknowledged that the prosecutors “established aggravating factors including that the murders were especially cruel and heinous.” And yet, three jurors found that the shooter also suffered from mental illness sufficiently enough to not apply the death penalty.
The shooter in this case is far from the first defendant in a death penalty case to suffer from mental illness. And, as documented in the ACLU Report “Mental Illness and the Death Penalty,” many of those individuals have ultimately been executed. Take, for example:
Kelsey Patterson was executed by Texas in 2004. Patterson had a history of committing violent crimes but being found incompetent because he was diagnosed with paranoid schizophrenia. He voluntarily committed himself to a hospital after one crime. Despite his history and diagnosis, Patterson was found competent to stand trial by a jury after two murders in 1992. Patterson talked about conspiracies against him during his capital trial. Even though the Texas Board of Pardons and Paroles recommended that Patterson’s death sentence be commuted to life, the governor did not follow the recommendation.
https://www.aclu.org/report/report-mental-illness-and-death-penalty
In fact, comparing the present case to that of Patterson’s really highlights the arbitrariness of the application of the death penalty in the US. In Patterson’s case, there was no question of diagnosis. And we have the added fact that a state board even found him incompetent. And yet he was still executed for the killing of two people. In the Parkland cases, there had been no past findings of mental incompetence. And the scale of the crime was almost 9x larger than Patterson’s, yet the shooter was spared.
Laying my cards on the table, it is for exactly these reasons that I oppose the use of the death penalty in all cases. There is simply no way to fairly and consistently apply it under our system of law. And given that fact, we shouldn’t allow the state, at any level, the ability to kill, especially given how arbitrary the application of the death penalty is.
Some may still want to defend the death penalty on moral grounds, pointing to the many Parkland parents who wanted to see the shooter executed. I do not have children and cannot begin to understand the depth of their grief. However, it should be noted that ultimately, the decision to execute is left up to the State, not the harmed parties. Further, if one wants to make the case that we should respect those victims’ families’ wishes, then what should we do when victims’ families want killers to be spared? Don’t their opinions deserve the same level of respect?
Unfortunately, decisions like this one, often have political ramifications. One thing to watch for is if the decision to “spare*” the life of the Parkland Shooter will lead to a legislative push for Florida to overturn a 2017 law requiring that death penalty decisions must be unanimous. Governor Ron DeSantis has signaled that he supports such a measure. If this happens, then Florida will join neighboring state Alabama in the dubious honor of being the only two states in the Union to allow the non-unanimous application of the death penalty.
Sadly, there is an argument that if Florida does make that decision, then perhaps the application of the death penalty will become a little less arbitrary, in so much as it will be harder for people not to receive it. But, I ask you, is that really a move towards a more just and moral society?
* – It’s deeply unfortunate to see the number of people who somehow think that life in prison, without the possibility of parole, is somehow “going easy” on an individual. I would recommend those folks take a look at the conditions that Alabama prisoners are currently protesting against for a bit of a reality check about how we treat prisoners in the United States.
Totally agree on the life sentence thing – nutraloaf and constant threats of assault is no way to live.
A sentence of life w/o parole is justice served.
The message from society should be, “Thou shalt not kill.” The death penalty sends the message, “Thou shalt not kill except…” Plus I’m vindictive enough to like the idea of this kid spending decades in prison slowly realizing how bad he screwed up his life. I’d be happier if our prisons made some feeble attempt at attempting rehab, but it is what it is.
My view on the death penalty is that, while I do not believe it is inherently immoral, I think it is over-applied. I also think that proportionality requires that the death penalty be applicable at some point. Receiving the death penalty for murdering one person is probably excessive but probably not excessive for murdering 17 people.
However, that some of the jurors found that the perpetrator’s mental state did not make the death penalty applicable convinces me that even in this instance the death penalty should not have been applied. Shorter: the jury decided rightly.
My question is about the use of the word “arbitrary”. Do you mean arbitrary or do you mean idiosyncratic? I don’t think this instance is an example of an arbitrary decision although it might be idiosyncratic. Would a routine application of the death penalty be more to your liking?
My other question is about the long period that has elapsed since the crime was committed and the perpetrator apprehended and the trial concluded and sentence rendered. That is, indeed, arbitrary and, I would argue both unjust and vitiates any deterrent effect of the law. When the killer confesses but years elapse before sentencing there’s something fundamentally wrong.
Since Magna Carta the principle “justice delayed is justice denied” has been believed and that would seem to be applicable here.
On one side of the question, I’m fine with Alabamans and Floridians having the kind of criminal justice systems they want even to the extent of making them seem extremist in their views. On the other side of the question, I doubt that the issue of creating a more just and moral society is one that crosses their minds often enough that it even shapes who they vote for at the margins. I suspect the same conditions exist in more cultural venues in the US than just FL and AL, but I’m one of those guys who believes in a magical sky daddy and the absolute depravity of mankind, so my opinions can be ignored.
When OJ was on trial there was a panel on the Diane Rehme (sp?) public radio show. At that point in the trial everyone on the panel assumed he would be found guilty so the discussion went on and on about whether he would get the death penalty. After a while Diane asked for the opinion of a guest who hadn’t spoken yet. He said that there was no chance OJ would get the death penalty. The other panelists pushed back but his explanation was chilling. He pointed out that of the hundreds of people on death row in the United States at the time, every single one had been represented by a public defender. If you have access to a private lawyer you don’t get death. That’s reserved exclusively for the poor.
This case also highlights the arbitrariness (with apologies to @Dave Schuler) of when and how we think about mental health and people with mental illness (diagnosed or otherwise). Seems to me that such thinking, if one might call it that, is all too often polluted by our other allegiances. We can do better. Sometimes we do. Sometimes.
I don’t mind the arbitrariness. These are convicted murderers, and their rights are really far down the list of outrages.
I just don’t think the state should be in the killing business. (Or the cruel and unusual punishment business, or the unsafe prison conditions through neglect business, or the sentencing people to 5-7 years of prison rape business)
Ultimately, I think our government should reflect us at our best, not codify our worst elements into law. The government should be structured to help people, not hurt people — and certainly not hurt people needlessly.
(This is almost certainly my most hippie-dippie belief)
For whatever it’s worth, I am anti death penalty for the sole reason that I don’t think humanity is capable of ever getting it right. That no matter what safe guards are put up, some will be executed that don’t deserve it, including the actually innocent.
We fck up way too often.
Cruz’s lawyers will appeal this sentence, or hand it over to an appeals lawyer. Some of the victims’ parents are probably afraid Cruz will be out in 15 years, despite the LWOP sentence.
@Gustopher:
Sadly, I’m afraid that it does reflect us at our best, in aggregate.
I’m against the death penalty for several reasons, mainly because I’m skeptical of the state having such power, but also because of the documented history of errors. If someone is unjustly imprisoned, that can at least partially be corrected by setting them free and giving restitution. There’s no such option if an innocent person is executed.
My thoughts mostly echo Dave Schuler. I would just add that much about criminal justice is “arbitrary” or idiosyncratic for a number of reasons:
– Jurys are not all the same, and the jury pools will have significant cultural differences, given our country’s extensive cultural and regional diversity.
– Federalism in criminal justice means different laws and standards.
– There are tradeoffs between stringent sentencing guidelines and a more open system where a jury has more leeway in a sentence. A more uniform application of the death penalty would require removing authority from juries and judges for sentencing, which has some significant downsides.
– The imperfections of our species, especially our cognitive deficits. And people interpret fairness and justice quite differently.
Seems like the same people who jump up to blame mental illness for mass shootings instead of easy access to guns and ammunition, are the same ones shocked when the shooter is judged to be mentally ill.
Had they voted for death, and had this little prick been executed, I would not have suffered even a moment’s pity. Did he deserve to die? Of course he deserved to die, but what he deserved and who we are as a country are not the same thing. If the standards is, ‘what did he deserve?’ then the answer is a long, slow death by torture. But we are not those people, this is not that country.
“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.” – Gandalf
I admire the hold-out juror. That took some courage and some strength.
@Michael Reynolds:
I’d be curious to hear more about your perspective on “deserve.” I realize that might be a big ask, so if you don’t have time or inclination, that’s cool.
More generally, I’m curious about the tension between “deserve” and what we ought to do as a people/country.
ps, Great question prompt the other day. Very effective. People enjoy telling their story(ies). And those of their family.
@Michael Reynolds: Well said. To say “it would be best if he were dead”, is a far far cry from the next step: setting up the people, equipment and mechanisms to kill him. Yet I find that the vast majority of people who are enthusiastic for the death penalty never even think about that. How do we chose the person who gives the injection? How do we find the doctor who presides over this? The prison guards who were with him every day until they marched him into die? What do these efforts do to the individuals and to the society as a whole?
@Mimai:
I suppose the foundation of, ‘deserve’, goes back to, ‘as you sow, so shall you reap.’ Or an eye for an eye. Primates have an innate sense of justice, observed in chimpanzees, for example. Humans know murder is wrong, pre-religion, pre-mythology. I think wandering bands of early homo sapiens probably had a sense of justice.
Is it unjust to take the life of a killer? Disproportionate? Does it violate that deep sense of justice? No, obviously, see: all of human history. But justice is one thing, and action undertaken by an individual in modern civilization, or by a modern a state, is a different thing. I take moral, intellectual evolution to be a priori good. We are meant to be building our civilization, acting in ways that will strengthen and improve our civilization. I think a crucial element of that evolution is greater respect for human life. We should hope to evolve in the direction of more humans rather than fewer. You know, life.
Simply put, a man may deserve to die under the eye for an eye rule, but that just leads to the follow-on question: So, what should be done? What should we as individuals and collectively do about it? And why?
The over-arching issue in the context of an evolving civilization, is not revenge but public safety. I believe you apply an Occam’s brand razor and look for the solution that ensures public safety with the least amount of violence or cruelty, and the least imposition on innocent people, ie the people who have to do the executing.
Life in a concrete box is not a light sentence. People who think that’s not enough have no imagination. It’s a terrifying sentence. Don’t ever kid yourself that we aren’t torturing this man. We’re leaving him alive, but without hope, a shrunken, crushing, miserable existence. Entirely justified in this case – he’s a psycho killer, and society will just have to get along without him. But I’d not hand out life sentences lightly. Necessary evil, but still evil.
@Michael Reynolds:
Thanks. That was way more than I expected (deserved?).
There’s a lot unpack with your comment. It helps me understand your perspective better. I was assuming that in using the term “deserve,” you were referencing a philosophical and/or moral principle.
But your comment clarifies that you were gesturing at our evolutionary record instead. Given that, I can see your point about what we — individually and collectively — ought and ought not to do. And how that is orthogonal to deservedness.
I taste a distinct utilitarian flavor in your perspective on this. Is that context dependent or independent? Or perhaps my taste buds are off.
@Mimai:
Well, I’m a steer the trolley toward the one person, save net four people guy. Philosophy is a bit like wine appreciation, something I used to be more invested in keeping at the front of my brain. But with plenty of , um, wiggle room for my own personal interests, I’m with Hume:
In all determinations of morality, this circumstance of public utility is ever principally in view; and wherever disputes arise, either in philosophy or common life, concerning the bounds of duty, the question cannot, by any means, be decided with greater certainty, than by ascertaining, on any side, the true interests of mankind.
Are you a student of philosophy?
I turned against the death penalty when evidence showed that innocent people had been executed (Cameron Todd Willingham, e.g.). Whether through error or prosecutorial misconduct, the state murdered an innocent person. I believe that if just one person is executed by the state in error then that is one person too many.
A second point is that juries selected for the death penalty are screened for death penalty opponents. I would be screened off the jury because of views. That seems to be a wrong also. If a state doesn’t want it to be unanimous then a jury should be picked randomly, no exceptions.
@Michael Reynolds:
Re Hume, you are in good company.
I wouldn’t call myself a student per se, but maybe that’s just wordplay. I have and do mess about in this sandbox. My professional life also has me neck deep in questions about values, contradictions, trade offs, etc. And sometimes this collides with the criminal and civil legal systems.
More generally, I have a natural (some might say unnatural) affinity for the uncomfortable tensions that come with the risks of living. And of self-awareness.
Fortunately, I don’t take myself too seriously. Indeed, I’m constantly telling inside jokes about myself (and at my expense) that only I understand. Well, me and one other person.
Also, so as to not completely derail Matt’s post, I’m against the death penalty. In general and for Nikolas Cruz.
Apparently, on Thursday, a 15 year old boy shot and killed 5 people in NC.
https://apnews.com/article/shootings-arrests-north-carolina-raleigh-d470969568cfac88de520c6c7cc64741
(AP does a great job there, with a picture of an adult black man (some first or second responder) with no caption)
Just a kid, wandering around killing people with an accessible gun. Not sure if I missed the national outrage or whether this is normal or both. Biden had a statement.
Does this kid deserve the death penalty? Almost certainly more than his victims deserved to get shot to death by a 15 year old kid.
We throw away countless people in our society and I’m not going to shed a tear for this kid if he is one of them, but the power of the state should be focused on something other than actively killing this kid.
The kid will, of course, be tried as an adult, and in all likelihood the adults that let him have access to a gun won’t be tried at all.
(Not sure if the Supreme Court lets us use the power of the state to kill 15 year olds yet)
Indeed, if I could give that a thousand thumbs up, I would,
Ironically, I think that death penalty is less brutal than life without parole, specially if you are going to spend most of this time in solitary.
Trump Republicans consider American prisons to be holiday resorts. That explains the non-existent massive crime wave. Except the jails holding January 6 “political prisoners”, where conditions are worse than Iran’s.
@Michael Reynolds:
Thank you for that quote, it sums up a lot for me.
I used to be firmly in favor of the death penalty.
What turned me against it, was ironically enough, the execution of Ted Bundy.
Bundy was the poster boy for the death penalty- mentally competent, remorseless, without any mitigating factors.
But as I watched the crowds outside the prison chanting and cheering, it occurred to me to think of how state sanctioned executions change us and give us permission to surrender to bloodlust and darkness.
I know the judicial system, the penal system, and all the various actors within it carried out their jobs soberly and without cruel intent; But the crowds outside showed what was really going on.
It isn’t about what they do or don’t deserve, its that we as humans aren’t very good at finding the line between justice and vengeance, and controlling our own darkest impulses. Whatever we can do to avoid killing, we should do.
@Chip Daniels:
Re Ted Bundy, “mentally competent” and “without any mitigating factors” jumped out to me. He was indeed deemed competent to stand trial etc. More broadly though, I think his mental (un)health was and is an important factor to consider.
There is some debate, but the majority of experts who took a good look into it concluded that Bundy met criteria for Antisocial Personality Disorder. That seems right to me.
I bring this up not to debate the specific case of Bundy, but rather to highlight the challenge of considering personality and developmental disorders* in this broader context. This challenge — more specifically, the anxiety associated with it — pulls for our “darkest impulses,” as you put it.
*And not just these. With the exception of florid psychosis (with positive symptoms), we don’t really have a good or consistent way of incorporating mental health. And our collective incompetence on whether/how to consider mental health is not restricted to the legal system.
@Mimai: I think the legal system assumes that if you have the mental capacity to understand that you have a mental health problem, you have an obligation to get help and manage that problem before committing acts of violence or other exciting crimes.
Skipping over the very big issues of lack of access to mental health care, and success of treatment, that feels like roughly the right spot to draw the line. There are lots and lots of failures in the system that make it not work well, but I don’t think there’s a better line to be drawn to attempt to make that distinction.
Hey all, I just wanted to say thank you for all the thoughtful discussion! There’s more here that I can dive into in depth. There were a few comments I wanted to respond to specifically:
@Dave Schuler:
My take is that it’s not particularly useful to consider the morality of most things in principle and rather look at their actual application. In this respect @Andy hits on a number of the reasons why the actual application fails so badly.
@Dave Schuler:
I really needed to think about this for quite a bit–I think ultimately I have to net out with “why not both?” To your point about idiosyncrasy, one of the things you hear a lot working in/around the criminal legal system is “every case is unique.” Which is true, but doesn’t mean that you cannot look across them to find patterns. And that is where the ultimate arbitrariness comes into play in terms of where the death penalty is applied, the nature of jury findings, etc.
@Dave Schuler:
This is an incredibly important point and I need to do some digging to understand why it took three and a half years to get to this point. The Wikipedia page for the shooting details a lot of the major beats: https://en.wikipedia.org/wiki/Stoneman_Douglas_High_School_shooting#2018
@Andy— Thank you for bringing in the topic of known errors and findings of innocence (and strong evidence of innocence after executions that have not been taken up by the courts because it’s considered a closed matter by the state).
@Michael Reynolds — I was not expecting to see Hume brought up in this thread. Kudos for that mic drop.
@Ken_L:
Great point. And most of those are complaining about jails rather than prisons. And generally speaking, while not great, most federal prisons are considered preferable to state prisons.
@Chip Daniels:
To your point, the NH legislator who led the effort to banning the death penalty in his state (even after having both his father and brother murdered/killed in separate incidents) likened the death penalty to ritualized killing.
@Gustopher:
Based on my understanding, that is a higher bar than most states understand it. I believe the threshold is simply can the individual understand that what they were doing is considered “wrong.” Which is highly interpretive and a very low bar to clear.
@Gustopher:
Many people with mental illness don’t understand that they have a condition that warrants treatment. And/or they understand but engage in a non evidence based treatment. And/or they inconsistently understand and thus inconsistently engage in treatment. (I suspect you know this so forgive my vox explainer)
In my experience, people tend to think of psychotic disorders (when they think about this at all) — lifetime prevalence about 3%. Or they think of bipolar disorders — lifetime prevalence 4-5%.
Contrast with personality disorders — lifetime prevalence about 15%. To be sure, personality disorders rarely render someone incompetent to stand trial. And with a few unusual exceptions, they tend to not factor into decisions about state of mind during the (alleged) act.*
But what about mitigating factors? In my opinion, our collective thinking about this is dreadful — unprincipled and unscientific. And that says nothing about morals and ethics.
And this is even worse when we scale out beyond the legal systems. Certain people are deemed responsible for their actions. Certain people are to be held to account. Certain people are to be judged, mocked, etc.
And how we sort people into the “culpable” and “inculpable” groups has damn near nothing to do with our scientific and clinical understanding of mental health.
Fairweather allies of people with mental illness. Advocates for mental health awareness…but only the good and safe and easily infantilized parts.
*I think this is a failing of our systems — legal, medical, social — but it’s really complicated and thus not something that lends itself to this forum.
Historically, whether to impose the death penalty or not has often hinged on what the alternatives are. If you don’t have the money to build prisons and hire guards for lifetime emprisonment (or a country on the other side of the world to ship criminals off to, *cough* Australia *cough*) then you’re more likely to hang people, methinks.
As I keep saying, societies end up with the ethics they can afford. Which is why I can see a space colony imposing the death penalty for a wide range of “anti-social” behaviours such as hoarding or even certain practical jokes, depending on how much of a risk said behaviour presents to the continued existence of the colony. (Hoarding: fire risk. Practical joking involving hacking of any of the colony’s environmental systems: life support risk)