After deciding to pursue the execution of the man charged with fatally shooting 12 people in a Colorado movie theater last summer, the prosecutor declared that "for James Egan Holmes, justice is death." By that definition, he might have added, justice is also highly unlikely.
Arapahoe County District Attorney George Brauchler might have resolved this case quickly, simply and inexpensively. Holmes' lawyers say their client would be willing to plead guilty for a sentence of life without parole. But the prosecutor declined.
Not much should be made of this announcement, since he has plenty of time and many reasons to change his mind. Arizona prosecutors had no apparent qualms about a plea bargain with Jared Loughner, who agreed to spend the rest of his life behind bars for killing six people and wounding 13 others in Tucson.
Rep. Gabby Giffords, who was shot in the head, and her husband approved the deal. The Wall Street Journal reported that "victims and their families largely welcomed" it.
It's not hard to see why. A plea bargain may deprive them of the satisfaction of seeing the killer pay the ultimate price, but it avoids years of uncertainty and frustration. If we know anything about the death penalty in this country, it's that there is nothing swift or sure about it.
Colorado is less than zealous in its commitment to this particular sanction. The state has executed only one person since the death penalty was restored in 1975—and he'd been on Death Row for 10 years. One current resident was sentenced in1996.
Nationally, it takes an average of nearly 13 years for a death sentence to be carried out. Holmes could be condemned to die and still be breathing oxygen in 2030.
Getting a conviction and death sentence is no cinch. His lawyers are expected to ask for his acquittal on grounds of insanity. Holmes saw a psychiatrist at the University of Colorado Denver while he was a student there, and a gun range refused to do business with him because the owner found him "creepy." Even if a jury is not willing to find Holmes innocent, it may decline to execute someone with serious mental problems.
If the prosecutors insist on going to trial, the public will need an excess of patience. The presiding judge stepped aside because of other duties, forcing postponement of the trial until next February at the earliest.
Holmes' lawyers want to put it off till the summer or fall of 2014. The trial is supposed to take four months, though the defense says it could go on for nine. So a verdict may be more than two years away.
By that time, many stacks of taxpayer money will be gone. A capital murder trial costs far more than a non-capital one, because of the extra sentencing proceeding, the special protections mandated by law and the huge amount of time required.
The Death Penalty Information Center notes that the difference can exceed $1 million. And the additional cost may be wasted, since "only one in every three capital trials may result in a death sentence" and "only one in 10 death sentences handed down may result in an execution."
Given diminishing public enthusiasm for capital punishment, there is no guarantee that if Holmes wound up on Death Row, the sentence would ever be carried out. Michael Radelet, a professor with the Institute of Behavioral Science at the University of Colorado Boulder, notes that a future governor could decide to commute all outstanding death sentences—as Illinois Gov. George Ryan did. "The odds that he'll be killed are about the same as the odds of a snowstorm in Orlando tonight," he told me.
Death penalty advocates will argue that prosecutors owe it to the victims and their families to demand the death penalty. But that path offers cold comfort.
Marilyn Peterson Armour of the University of Texas at Austin and Mark Umbreit of the University of Minnesota conducted interviews with families of murder victims in Texas, which has capital punishment, and Minnesota, which doesn't. Those in Minnesota, they found, "show higher levels of physical, psychological and behavioral health"—apparently because "the appeals process in Texas was drawn out, elusive, delayed and unpredictable."
Prosecutors can put Coloradans through that maddening process in the Holmes case. Or they can save everyone a lot of trouble by locking him up for good.