After the news broke that jurors had voted to impose the death penalty on Boston bomber Dzhokhar Tsarnaev, I was asked in a radio interview whether I thought the jury had reached the right result. I thought about that question on Friday, when jurors in Colorado announced that they had come to the opposite decision for theater shooter James Holmes.
Ultimately, I believe that the right result was reached in both cases. That's not because I claim to know what penalty should have been imposed in either case. Instead, it's because the life-or-death decision in a capital murder case is one of the most sensitive, individualized decisions in the American legal system, and if the process is properly followed and the decision-makers take their roles seriously -- both of which appear to have been the case -- it's difficult to disagree with the ultimate decision.
Capital punishment in America has a long and complex legal history. For centuries, its status as a legitimate option for states that chose to have it was relatively uncontroversial. The first major disruption in the regime came in 1972, when the United States Supreme Court, in Furman v. Georgia, effectively struck down every existing death penalty statute across the country.
The reason wasn't that the death penalty itself was considered unconstitutional. Instead, the Court concluded that this penalty was being administered in a haphazard manner, with no coherent rationale for why some defendants were being executed while others convicted of similar crimes were not; in Justice Potter Stewart's words, the death sentences at issue were "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Furman actually resulted in a series of conflicting opinions from various Justices, but the upshot was that states and the federal government were free to try again with legal frameworks that provided more structured guidance to judges and jurors.
The decades since Furman have involved a constant back-and-forth process through which states have enacted various death penalty statutes, and the Supreme Court and other courts have ruled on their constitutionality, with amendments and adjustments often following in response to those rulings. The resulting legal framework is intricate and complicated, but it can essentially be boiled down as follows.
After finding a defendant guilty of a death-penalty-eligible crime, jurors decide whether any statutorily defined "aggravating factors" are present. In the Holmes case, for example, the jury found that, among other factors, Holmes committed the murders in an "especially heinous, cruel or depraved manner."
The defense, in turn, is allowed to present evidence of "mitigating circumstances" -- basically, any evidence that might weigh against a sentence of execution. Judges are constitutionally required to allow defense attorneys to argue just about any possible grounds to spare their clients' lives. The mitigation in Holmes's case focused on his mental illness, with his attorneys arguing that even if his condition was not sufficiently severe to excuse him from guilt under an insanity defense, it was still relevant in considering whether he should be put to death.
And this is the point at which capital sentencing decisions start differing from most other legal decision-making processes. In a typical courtroom process, there is at least theoretically a "right" and a "wrong" result. For example, when deciding whether a defendant is guilty, jurors are instructed to consider only whether the evidence establishes beyond a reasonable doubt that he in fact did what he's accused of. If it does, jurors are instructed to find him guilty, regardless of how they feel about that result.
A capital sentencing decision is different. There's no mechanical rule stating that jurors must vote for death if they find that the aggravating factors are greater in number or significance than the mitigating factors. Instead, after going through the aggravation/mitigation analysis, jurors are asked the separate question of whether the death penalty should be imposed.
They can't impose that penalty unless at least one aggravating factor has been proven, but that rule doesn't apply in the opposite direction. Even if the prosecution has proven a large number of aggravating factors and the jury has found no mitigating factors, the death penalty still isn't required. There are no specific rules governing this decision; the law allows a juror to vote against the death penalty for any reason or no reason at all. In other words, at least legally there's no such thing as a "right" or "wrong" result at this point.
Another difference is that capital sentencing isn't the type of group decision we normally associate with the jury process. There have been reports that the Holmes jurors were "unable to reach a verdict" in the penalty phase, but that's arguably a misleading description.
In the guilt phase of a capital murder case, as in any other criminal case, jurors are required to reach a collective, unanimous decision. If they end up split, the result is a "hung jury," which is seen as a failure of the system and requires a new trial.
In a capital sentencing phase, however, the law provides that the death penalty is imposed only if all twelve jurors vote for it; otherwise, the result is a life sentence. Accordingly, a non-unanimous verdict at this point isn't a "hung jury"; it's a life sentence verdict, and the process is over. This is what happened in the Holmes case -- once it appeared that at least one juror would stand firm in deciding against a death sentence, the jury collectively announced that it had completed its deliberations and the result would be a life sentence.
So did the Holmes jurors "get it right"? I'd say yes -- just as I'd say the Tsarnaev jurors, who reached the opposite result, "got it right." The law in this area requires decisions that are uniquely individualized -- not only as to the defendant, his offense, and his victims, but also as to each individual juror making the ultimate life-or-death decision. By all accounts, each juror gave meaningful consideration to both sentencing options and voted according to his or her conscience. In the end, in our system, that's all we can ask.