Kent Scheidegger says he hasn't yet decided for sure.
Although I very much doubt that his mental defense will be sufficiently compelling to make the death penalty not the appropriate sentence, I would still want to see it before deciding.
Scheidegger's co-blogger at Crime and Consequences, Bill Otis, on the other hand, has made up his mind.
A society unable or unwilling to recognize this man as having earned a trip out of this world is a society that no longer cares about the basic rules of civilized life (or its own safety, for that matter).
A Rasmussen poll concludes that 66% of the population thinks that whoever shot all those people watching The Dark Knight in Aurora, Colorado should get the death penalty, though Rasmussen didn't ask about alternatives and we know that the percentage favoring killing is always much higher when none are offered.
Regardless, that 66% includes Steven Hernandez who told TMZ that he's "heartsick and angry" over the murder of his sister, Rebecca Wingo. So he wants the shooter to get the death penalty but to live a long time waiting for it. None of that justice delayed is justice denied stuff for him.
I want to see him sentenced to death and I hope he sits in jail many years waiting to die.
On the other hand, Pierce O'Farrill, who was himself shot three times, has already forgiven and doesn't want the shooter to get death.
None of this (with maybe the exception of Scheidegger's restraint, but good for him) is particularly surprising.
The press tracks down people who have opinions, and people who have opinions track down the press. Those who generally favor the death penalty are, understandably, drawn to it in the case of a mass murderer. Those who don't think the government should kill oppose it. Really, there's some surprise in O'Farrill getting a forum for his view, but the press is always willing to listen to someone just emerging from surgery.
But then there's Jonah Goldberg who can't seem to find anyone to debate.
Death penalty opponents are fairly mercenary about when to express their outrage. When questions of guilt can be muddied in the media; when the facts are old and hard to look up; when the witnesses are dead; when statistics can be deployed to buttress the charge of institutional racism: These are just a few of the times when opponents loudly insist the death penalty must go.
But when the murderer is white or racist or his crimes so incomprehensibly ugly, the anti-death-penalty crowd stays silent. It’s the smart play. If your long-term goal is to abolish the death penalty, you want to pick your cases carefully.
So, he says, the debate won't happen because abolitionists won't engage.
It won’t happen in part because nobody on the Sunday talk shows wants to debate the death penalty when the case for it is strong.
They like cases that “raise troubling questions about the legitimacy of the death penalty,” not cases that affirm the legitimacy of the death penalty.
But it also won’t happen because death penalty opponents understand that when the murderer is unsympathetic, the wise course is to hold your tongue until the climate improves.
I don't know who Goldberg thinks is afraid to speak up. I'm not.
I'll take Goldberg on. I'll happily debate with him the death penalty even for whoever shot all those people.
Oh, I won't exactly take up the gauntlet Jonah's tossed down. He wants opponents of the death penalty to explain why James Holmes, if he happens to be sane and evil, "deserves to live." Explain, he demands,
why the inequities of the criminal justice system require his life be spared.
I won't do that.
I won't explain why the specifics of James Holmes (if it's he) or the particulars of the life of some as-yet-unidentified, and to me wholly unknown person demonstrate the inappropriateness of death in this particular case.
That's a silly debate. Neither he nor I knows anything about the shooter except some media gossip. And he's already loaded the dice declaring that the debate must be over someone who is assumed to be fully responsible for his actions without allowing the possibility that nobody is.
Really, that's all beside the point.
Killing James Holmes or whoever isn't wrong because of the details of James Holmes (or whoever), though those details might be a separate reason why killing him is wrong. Nor is it wrong to kill him because he would be a victim of the randomness and arbitrariness of the death penalty. In fact, he would. But that's not because of him in particular. It's because what Potter Stewart said forty years ago in Furman remains true today.
[D]eath sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.
The death penalty is random and arbitrary. It is beset by caprice and racism and classism. Those things are true even when the guy who draws the short straw happens, in some cosmic sense, to deserve it. It's no less capricious to kill him just because a system that wasn't arbitrary might (or might not, since we haven't ever seen such a system, and since we can't truly conceive one, we'll never really know) have found him worthy of death.
It's not that I run from those debates in a case like this. It's that they're beside the point.
I have no idea whether in cosmic terms the person who shot up the theater, killed 12, injured dozens more, and terrorized still others deserves to lose his life. I don't dispute that it's possible. I'll concede that there may be folks who deserve killing.
And I suppose that if there were someone who knew it all. Someone who knew every genetic fact and how it operated (not just the ones we can agree on, all of them) and all facts of nurture and background. Someone who knew every fragment of mental health and how it happened. Someone who understood motivation perfectly. If there were such a person who also happened to be infallible in judgment and wisdom. You know, if there were God, the omniscient, omnipotent, omnibenevolent, unique creator of the universe, if that God were to specifically declare that the Aurora shooter deserved to die, well, then, I suppose we'd know.
Absent that, and whatever Jonah Goldberg might choose to believe, we're absent that, it's a crap shoot. Maybe he's right that the killer deserves to die. Maybe not. Neither he nor I nor anyone else has all information conceivably relevant to the question. None of us could have all that information. And none of us has perfect judgment.
And of course we're all better than the worst things we've done. And I'm sorry, but doing an evil act does not make the doer an evil person.
So we don't know. And we can't know.
He'll kill based on odds.
Because we could be wrong. Even if we don't think so.
Besides, whether the Aurora shooter deserves to die is only one part of the equation. The other part is whether, even if he does, we should kill him. Ought it be us?
There's nothing new here. I've said it over and over in this blawg. The death penalty isn't about the guy we're killing. He's just its victim. It's about us. The killers.
Of course, the alternative isn't that he goes home in a couple of weeks. it's that he spend the remainder of his life in prison. Without hope. Without recourse. Death in prison. Just not murder in our names.
And, I should add, in the names of those he killed. There's a way to be remembered. In honor of those we loved and lost, we commit murder. I think not.
A couple of years ago, in April 2010, I wrote this.
I've talked before about the Ohio aggravated murder statute. Aggravated murder is our only capital offense. There are a number of forms of aggravated murder, and it only gets to the death penalty if you also add a specification, but here's the first form of the offense: No person shall purposely take the life of another with prior calculation and design. OK, so on Tuesday, some prison guards took Darryl Durr from a holding cell to the death house at the Southern Ohio Correctional Facility. They strapped him down to a table. They stuck needles in his arms. Then they pumped him full of a barbiturate (sodium thiopentol) until he was dead. That is, they purposely took the life of another with prior calculation and design. Me? I don't think anyone has the right to do that.
Even to people who deserve killing. If you can figure out who they might be.
I'm not a Christian, but I think Jesus was on my side.
 Jesus went unto the mount of Olives.
 And early in the morning he came again into the temple, and all the people came unto him; and he sat down, and taught them.
 And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst,
 They say unto him, Master, this woman was taken in adultery, in the very act.
 Now Moses in the law commanded us, that such should be stoned: but what sayest thou?
 This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not.
 So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.
 And again he stooped down, and wrote on the ground.
 And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst.