Dr. Sally Satel on why James Holmes (the Aurora movie theater killer) shouldn't get the death penalty

|The Volokh Conspiracy |

FILE—In this July 23, 2012, file photo, James Holmes, who is charged with killing 12 moviegoers and wounding 70 more in a shooting spree in a crowded theatre in 2012, sits in Arapahoe County District Court in Centennial, Colo. Jurors in the Colorado theater shooting trial reached a decision Monday, Aug. 3, 2015, on whether to keep the death penalty as an option for Holmes. The jury deliberated for less than three hours, starting Thursday after Holmes' parents made an emotional plea for their son's life because he is mentally ill. (RJ Sangosti/The Denver Post via AP, Pool, File)

I don't have well-informed views on this subject, but Dr. Sally Satel (American Enterprise Institute)—whose work I much admire, and who does specialize in such matters—had some thoughts that she was kind enough to let me pass along:

James E. Holmes, who rampaged through a crowded movie theater in Aurora, Colorado three summers ago, came one step closer to the death penalty on Monday.

In the just-completed second phase of his three-part trial, all the jurors agreed that the burden of schizophrenia, from which he suffers, did not outweigh the carnage of murdering twelve people and wounding dozens of others. Had one juror disagreed, Holmes would have been sentenced to life in prison then and there. The trial is now in the final phase, in which jurors will determine whether Holmes, 27, will be sentenced to life in prison or execution.

Whether Holmes can be punished for his crime (rather than being committed to a mental institution) turned on whether he is legally insane. Under Colorado law, Holmes could have been found not guilty by reason of insanity only if a mental disease or defect either made him "incapable of distinguishing right from wrong" or prevented him from forming the intent and deliberation required to be guilty of murder.

It is not surprising that Holmes did not meet this standard. His behavior suggests that he could distinguish right from wrong and that he intended to kill. The jury heard how he'd considered using a bomb or biowarfare to maximize the number of people he could kill but ultimately chose a semiautomatic weapon as the most efficient. They also heard that he released tear gas into the theater and wore a gas mask as well as earphones to blast music to block the victims' screams and that he booby-trapped his apartment.

Nevertheless, Holmes has a serious illness: schizophrenia. A number of psychiatrists reportedly examined him over the past three years and drew that conclusion, his lawyer said.

Various details, taken together, are consistent with adult-onset psychosis. For one, he was a well-liked and stellar student but then dropped out of a neuroscience graduate program at the University of Colorado. He was hospitalized several months after the crime and treated with anti-psychotic medication. A page from a journal he sent to his psychiatrist reflected his garbled thoughts: "Untruth is converted to truth by violence times zero, problem equals question mark, zero times problem equals question mark times zero, based on an incorrect theorem, zero equals zero, problem solved." After his apprehension, Holmes used evidence bags, which had been put over his hands to preserve gunpowder residue, as puppets.

Although Holmes was severely mentally ill, he was able to distinguish right from wrong and could act with deliberation and intent. That is no surprise. A psychotic state is a profound distortion of reality, but it is not dementia or disorientation and intelligence is not compromised. In fact, the delusions of schizophrenia can set in motion a sequence of coherent, well-planned behaviors.

Unfortunately, the insanity defense does not account for this. It makes little distinction between ordinary motives for murder—revenge, hatred, greed, or elimination of rivals—and motives that spring from twisted assumptions produced by mental illness. Yet how can anyone suffering from such assumptions be genuinely criminally responsible?

Recall the 2001 case of Andrea Yates, the Houston mother who methodically drowned her five children. She waited for her husband to leave for work before doing so. Yates suffered severe postpartum psychosis and though she knew it was wrong to murder her children, felt it was more important to save them from the Devil who, she fervently believed, was about to possess them. In her first trial, she was deemed sane.

As with Holmes, such a determination seems unjust. After all, the basic requirement for blame is whether the perpetrator is a moral agent. And a defendant cannot properly be considered a moral agent if his acts were the products of cognitive (e.g., infancy, dementia, or mental derangement) or volitional (e.g., gun to the head) circumstances that were not under the defendant's control.

But what does it mean to behave irrationally? Stephen Morse at University of Pennsylvania Law School offers this definition: "if the actor has beliefs that are simply not justifiable on any reasonable view of the world and seems incapable of correcting the errors by logic or evidence, then it is fair to conclude that the actor is irrational with respect to the behavior in question."

Thus, any condition that compromises a defendant's rationality or self-control is relevant to his blameworthiness. When the compromise of reason is extreme due to mental illness, there are grounds for exculpation.

Indeed, the basic logic behind the insanity defense is that the law should not punish people who are mentally incapable of controlling their behavior. The problem is that as long as the actor knows right from wrong in the technical sense, the extreme defects in his mental state—the very ones that led directly to the crime—no longer negate responsibility.

In my view, the best solution is for states to broaden the definition of insanity to cover defendants whose crimes flowed directly from delusional thinking, extreme paranoia, or command hallucinations. Such defendants should be confined and treated in mental hospitals, not punished by the criminal justice system. To be clear, murderers would need to show a severe deficit in the ability to reason, not merely a record of mental illness. Depression, anxiety, post-traumatic stress disorder, or drug-induced paranoia, for example, should not be exculpatory.

A more limited remedy would be to protect defendants driven by delusional thinking from the death penalty while still allowing the state to punish them with prison sentences. The U.S. Supreme Court could reach this result by holding that the death penalty is a cruel and unusual punishment prohibited by the Eighth Amendment for people whose crime resulted from delusional thinking. After all, the Court protected another class of cognitively compromised individuals in 2002, ruling that executing mentally disabled individuals violates the Eighth Amendment. In 2005, the Court extended similar protection to offenders younger than 18, partly on the premise that teens' cognitive refinement is not fully developed.

A 2006 report from an American Bar Association panel sensibly proposed that defendants "should not be executed or sentenced to death if, at the time of the crime, they had a severe mental disease that significantly impaired their capacity to (a) appreciate the nature, consequences and wrongfulness of their conduct, (b) exercise rational judgment in relation to conduct, or (c) conform their conduct to the requirements of the law."

Those reforms are not in place for Holmes. His fate rests with the jury. The final phase of his trial began on Tuesday. Survivors and relatives of victims are describing the devastation they suffered. The jury will then decide, "to a moral certainty," whether Holmes should be executed. They may yet recognize that the death penalty is not appropriate here.

Despite a law that allows leeway to execute people like James Holmes, there is still a small window for a life-sparing verdict.

UPDATE: The post originally mislabeled Holmes' weapon as an automatic; it is of course a semiautomatic—I've corrected the post accordingly. Also, an earlier version said, based on press accounts, that Holmes called himself The Joker; but there is controversy over whether, contrary to media reports, he did identify himself as such, so the post was revised to remove that.