« Resource Assistance? | Main | The Malleability of the Formalist Accusation »

Tuesday, July 24, 2012

The death penalty for Holmes, and "consultation" with victims

It's in the news (and not surprising, I suppose) that the Arapahoe County District Attorney is considering seeking the death penalty for the accused, James Holmes, in the Aurora movie-theater killings.  It has also been reported widely (here's one clip) that the D.A. plans to come do a decision in "consultation with the victims' families."

I oppose capital punishment, so I guess my views about such consultation, or about the related matter of "victim impact evidence" at sentencing, can fairly be discounted.  And, I am also sensitive to the fact that I have not been teaching or writing about these questions for several years.  That said, my strong sense continues to be that we -- that is, the political community that punishes -- need to be very careful about this consultation, and about what its purposes should (and should not) be.  

For example, it seems to me that the important question whether the death penalty is "deserved" (and no punishment should be imposed that is not deserved) is not one that should depend much on what the victims' families' preferences are regarding punishment, and it should not depend at all on whether the consultation/investigation uncovers facts that suggest that these particular victims were especially "valuable to society" or high-achieving or praiseworthy, or that their families were, for one reason or another, harmed more than usual by the loss.  (I am inclined to think, though, that a prosecutor could appropriately take into account facts uncovered during consultation with the victims' families having to do with the ease, or difficulty, of securing a (just) conviction efficiently.)

Again, I'm not an expert and others here at Prawfs know a lot more about punishment theory than I do!  Thoughts?

Posted by Rick Garnett on July 24, 2012 at 12:17 PM in Criminal Law, Rick Garnett | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The death penalty for Holmes, and "consultation" with victims:


I tend to agree with you. But what do you think about the converse situation, when the death penalty is on the table but the victim's family publicly voices its opposition? For some reason that always feels compelling, even though it doesn't differ from the scenario you discuss in any logical way.

Posted by: alex roberts | Jul 24, 2012 12:41:20 PM

No specific thoughts on your posed questions, but my understanding is that the DA plans to consult with the victims' families because "pursuing the death penalty is 'a very long process that impacts their lives for years,' Ms. Chambers said of victims." (http://online.wsj.com/article/SB10000872396390443437504577545010948586858.html)

To my mind, that's an appropriate thing to do -- these people will be affected by the DA's decision for a long time, and it's fair to consult with them on how they feel about that.

Posted by: k | Jul 24, 2012 12:46:27 PM

Isn't the victim consultation morally relevant to the use of prosecutorial license? This isn't about "desert," since we undoubtedly have a facial case for the death penalty here. The hard case for me is where the prosecutor consults victims about how hard to investigate to uncover aggravating factors. When a family gets a call that police have a guy whose M.O. is similar to a decades-old murder and they say "please don't try to re-open the case" to get that extra count or to bump up to DP eligibility, to what extent should prosecutors lay off on this?

Posted by: AndyK | Jul 24, 2012 1:09:43 PM

Don't you think that--in general--consulting the families makes it less likely that a prosecutor will pursue the death penalty? (Any studies on this?)

Posted by: Abe Delnore | Jul 24, 2012 1:20:47 PM

I am aware of at least one study (dealing not with the death penalty in particular) that found that, as between victims (or their families) and non-victims, victims are actually less likely to prioritize punishment as a goal of the criminal justice system or to seek harsher treatment of offenders. I'll try to track that down.

Posted by: Martin Pritikin | Jul 24, 2012 1:48:15 PM

Doesn't it all depend on one's underlying theory about the purposes of punishment? If one thinks the death penalty is primarily about general and specific deterrence, then the victim's family's views are not going to have much of a role. If one thinks the death penalty is about satisfying the victim's family's thirst for revenge, then the victim's family's views are going to have a major role. And since we as a society have very little agreement about the underlying purposes of punishment and the respective weights to be given to each purpose in the calculus, and are unlikely to achieve any meaningful agreement any time soon, I don't think we can get very far in the discussion.

Posted by: TJ | Jul 24, 2012 4:03:11 PM

Is anyone posting on here a current or former prosecutor? I am and we always consult with victims of all crimes. It's more a courtesy than anything. It doesn't necessarily change the decision - that's up to the office, not the victim. I think it's the policy of almost every office I'm aware of to at leat consult with them and explain why you're seeking the punishment you are.

Posted by: We'd | Jul 24, 2012 7:52:18 PM

I saw the same thing that 'k' did, and that does seem appropriate to me, as long as the victim consultation is one aspect of the decision-making process and not determinative.

Posted by: Andrew MacKie-Mason | Jul 25, 2012 12:37:10 AM

We'd is right. Note that the Colorado constitution - Title 24 article 4.1 part III mandates consultation with victims re sentencing. I imagine every state has a similar amendment or statute, and there is also 18 USC 3771 for the federal statute. The prosecutor alway has the final say. Here, assuming that the defendant is determined to be sane (legally), it is hard to imagine a prosecutoir not seeking the death penalty in any state in wihc death is a sentencing alternative.

Sens. Feinstein and Kyl used to push a constitutional amendment for victims rights. It got longer and longer every year in response ot complaints from prosecutors and finally collapsed of its own weight

Posted by: jt | Jul 25, 2012 11:16:34 AM

I think TJ's comments were on the mark -- I like to phrase the problem succinctly as whether we have a vengeance system or a justice system. As TJ noted, your view will likely be formed by how close you are to one of those poles.

Posted by: DHMCarver | Jul 25, 2012 12:21:50 PM

Unfortunately, our supposedly "rule-of-law" and "equal-protection" society countenances discrimination all the time, as was obvious in the payments made to families of the victims in the Twin Towers disaster settlement.

You are more important and more valuable if you:

Earn more;
Are married;
Are supporting children.

Single and childfree folks' lives just aren't worth much, especially if they're foreigners.

Posted by: Jimbino | Jul 27, 2012 11:02:01 AM

Post a comment