James Holmes didn't get off easy

August 10, 2015

My article in the current issue examines an ongoing challenge for death-penalty opponents: abolishing the death penalty in a given state has generally meant sentencing a lot more people to life without parole, a sentence just as hopeless and final. From an ethical perspective, LWOP—which Pope Francis has called a “hidden death penalty”—isn’t much better than death row.

The prosecutor in the Aurora theater shooting case, on the other hand, sees LWOP as much, much worse—for the victims and families. Mass murderer James Holmes “needs to be held accountable for what he did,” argued Arapahoe County DA George Brauchler. Brauchler’s implication is that locking Holmes up forever—a sentence the defense offered in a plea deal the prosecution rejected—would not amount to true accountability. For Brauchler, justice for victims of Holmes’s horrific crimes could mean only one thing: a jury trial in which that jury sentenced him to die.

They didn’t. And even if they had, a death sentence wouldn’t mean an execution—certainly not in Colorado, which has carried out just one execution in 48 years. As Mike Littwin argues, “no good ending was possible” following Brauchler’s decision to go to trial. It was incredibly painful for the victims and families, and even if Brauchler had won, the result would have been more of the same amid many appeals. Instead Brauchler lost—failed, in his view—and Holmes got LWOP, the sentence his defense had already offered to accept without a trial.

Not all the families were enthusiastic about the prospect of a death sentence. “We don’t have to go through all the appeals,” said Lonnie Phillips after the sentencing. Phillips’s stepdaughter Jessica Ghawi was murdered by Holmes. “We want him to go into oblivion,” he went on. “We want him to never be seen or heard from again.”

That’s exactly what will happen. Death-row inmates get a lot of appeals, and court-appointed lawyers to do the appealing. LWOP prisoners are basically left to rot. As I detailed in my article, this is a big part of the reason a lot of death-row inmates don’t think LWOP sounds like a step up. Yet death-penalty opponents often take for granted that it is.

So do prosecutors. And it’s implausible that Brauchler seriously hoped for a swift execution in a state like Colorado. No, the DA suggests here that he equates justice with an official statement that Holmes should be killed, even if the actual outcome is instead decades of painful appeals. It’s about the jury and the state pronouncing that Holmes, by violently taking others’ lives, forfeited his right to his own. Within this framework, LWOP looks like getting off easy not because of what it is but because of what it is not.

No one should minimize the horrors Holmes perpetrated. No one should ignore the immense pain of his victims and their families. Those horrors and that pain are facts, and they are devastating.

To say that the only just response to such horrors is a death sentence, however, is a statement of not fact but values. Brauchler can call it “justice” and deny that it’s “an eye for an eye.” But what he’s really saying is that the two are one and the same. That’s a value statement, one that gets a lot of takers in this country but not all of us.

In my article I ultimately agree with Francis that LWOP needs to be abolished, too. This doesn’t mean I think Holmes should be paroled. Some violent criminals can never be safely released, and he may well be one of them. But a heavy, lengthy sentence with the opportunity for parole—far from a guarantee of it—allows society to make this judgment after a killer has served hard time, rather than deciding up front that he’s simply beyond all hope.

I refuse to decide that now. This isn’t a bleeding-heart fantasy based in an unwillingness to look evil in the face. It is the conviction that every human face bears the image of God, however big the evil it also holds. It’s the belief that God’s grace really is even bigger.

James Holmes will spend decades in prison, and then he will die there. Few will mourn him, and I won’t either. But let’s stop acting as if locking up a young man, throwing away the key, and permanently erasing him from society is just a slap on the wrist. It only looks that way when violently ending him is your standard of comparison.