Rendering Judgments on America’s Death Penalty

On February 11, 2018, Nikolas Cruz boasted on videotape: “I am going to be the next school shooter of 2018.” Three days later, he shot and killed 14 children and three adults at Marjory Stoneman Douglas High School—the horror documented by more than a dozen security cameras.

An American or European visitor from a previous century, hurtled to the present in a time machine, would expect the legal resolution of Cruz’s crimes to be prompt and decisive. The defense of insanity is possible, but our visitor would strain to identify other open questions awaiting jury deliberation. After Cruz disclaimed an insanity defense and conceded guilt, what is left to decide?

So imagine the visitor’s puzzlement if told that the selection of Cruz’s jury did not begin until April 4, 2022 (with only part of that delay attributable to the Covid pandemic). That selection process, to our visitor’s amazement, took months, with thousands of people questioned about such things as their feelings about white privilege and whether they play violent video games. The jury of twelve (plus ten alternates) was empaneled on June 29. More legal motions followed, with the “trial” not starting until July 18.

But it was a trial in a curious sense—the only issue posed to the jury was whether Cruz’s 17 murders merited a death sentence or life in prison. The proceeding ended on October 13. The jury unanimously found that there were several “aggravating factors,” but at least one juror also found that “mitigating factors” predominated. A father of a victim, untutored in the intricacies of the law, questioned what factors mitigated the atrocity of Cruz’s “pressing the barrel of the weapon to [his] daughter’s chest” after she was already wounded. On November 2, Cruz was formally sentenced to life in prison.

“Every age stands equal before God,” German historian Leopold von Ranke wrote. Curtis Yarvin has explained: “Ranke’s law does not deny any era the right to judge any other. But it must allow itself to be judged in return.”

We are very much in the business these days of rendering judgment on the past—and finding our ancestors morally deficient. Among the defects of such an approach is how boring it is. Let’s make things interesting and imagine what someone from the past would think of us. How would our visitor from a century ago judge the capital trials of the modern era?

The “Byzantine Complexity” of Capital Trials 

The structure of the modern American capital trial is the outgrowth of judicial decisions decades ago.

When the Supreme Court decided Furman v. Georgia in 1972, apparently foreclosing capital punishment, there was an air of anticlimax about it: whether by judicial fiat or legislative enactment, it seemed inevitable. The precise ground on which the Court based its fractured decision was, and remains, mysterious, but as best anyone can tell, it was because the death penalty was randomly imposed. Why one heinous murder resulted in a death sentence and another a prison term seemed to be a matter of chance. According to Justice Potter Stewart’s opinion, death sentences were “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Three of the four dissenting Justices questioned how a punishment specifically contemplated by the Constitution could be unconstitutional, but lest their legal opinions be misconstrued, they gratuitously expressed personal misgivings with the death penalty. With friends like that, one could hardly regard capital punishment as having a long life.

But then, in a development that shocked the U.S. Supreme Court, and the nation’s intellectual elites more generally, the American public denounced the 1972 decision more comprehensively than any decision in modern history. Other candidates for “most unpopular decision” might include Brown v. Board of Education and Dobbs v. Jackson Women’s Health Organization, but in each of those cases the opposition was localized, along geographical or partisan lines. By contrast, 35 states, all over America, re-enacted death penalty laws within 4 years of the Furman decision.

Nearly half of those states concluded that the best way to satisfy the Court’s concerns about randomness would be through capital homicide statutes that stripped the system of discretion—that is, statutes that made capital punishment mandatory upon a jury’s finding that the defendant was guilty of capital murder. Yet the Court, in Woodson v. North Carolina (1976), held that such statutes were unconstitutional. The “fundamental respect for humanity” that somehow informs the Eighth Amendment’s prohibition on cruel and unusual punishments requires an individualized consideration of the offender’s “character and record” and “the circumstances of the particular offense.” Only then, the Court held, could the death penalty be anything other than “arbitrary and capricious.”

Our observer from the past might wonder whether precisely such an individualized determination had already been made—in the jury’s finding, beyond a reasonable doubt—that this particular offender had committed this particular murder. And not just any murder, but a murder legislatively set off as even more foul than your ordinary run of murders. But the Court, in a string of decisions, struck down any sentencing scheme that unduly limited a jury’s freedom to impose life or death. Lower courts took their cue. Sure, this defendant schemed to enter the victim’s apartment, raped her, bludgeoned her 47 times with a hammer, killed her, and then took multiple steps to conceal the crime. But because the jury was not allowed to hear any and all “mitigating evidence,” including expert testimony that he would no longer be a danger to society if incarcerated for the remainder of his life, the death sentence must be reversed.

In 1992, just twenty years into the Court’s post-Furman jurisprudence, Justice Antonin Scalia pointed to the inconsistency between the two lines of cases—the one, insisting that death sentences cannot be randomly imposed, and the other, insisting that juries can impose, or decline to impose, death sentences for virtually any reason, i.e., randomly. In the hopeless attempt to reconcile the irreconcilable, the case law became an impenetrable jumble. Justice Scalia lamented “the byzantine complexity of the death penalty jurisprudence we are annually accreting.” Those annual accretions have continued for thirty years, to the point that the English language, in all of its richness, does not include an adjective sufficient to qualify “complexity.”

At this point, a death sentence is possible only if all 12 jurors agree: one hold-out and the defendant is sentenced to life in prison—hence the fate of Nikolas Cruz. A death sentence, even if secured at trial, represents only a milestone on the long and uncertain road to an execution. With the best and brightest of America’s law schools and top law firms lining up to represent death row inmates, in what is optimistically styled as a “pro bono” enterprise, decades of appeals, habeas petitions, and emergency motions follow a death sentence. The law’s complexity invites creative lawyering and even more creative legal opinions. It has become commonplace for inmates sentenced to death to claim, quite credibly, that so many years have passed since their trial that they have become insane or senile, and therefore ineligible for the death penalty. Consider this: For the 11 people executed in the United States in 2021, 24 years on average separated the crime and the punishment.

What Do We Need To Know?

According to Cruz’s defense lawyers, “We must understand the person behind the crime.”

Do we, our observer from the past may wonder? Whatever may be necessary for the Final Judgment rendered by a Divine Intelligence, for purposes of criminal punishment, as it has long been understood in the Anglo-American tradition, is it not adequate to know that Cruz acted in a premeditated manner; that he had the goal, which he achieved, of killing over a dozen people; and that he was not suffering from delusions that deprived him of the ability to recognize the nature and quality of his act?

Until a few decades ago, we would not have been treated to the spectacle of weeks of testimony—first, by the prosecutors, of parents, siblings, and friends of the victims; and then, by the defense lawyers, of social workers, therapists, and miscellaneous acquaintances of Cruz.

In the course of the hearing, we learned from prosecution witnesses that one of the victims, a teacher, had a son with Down’s Syndrome, who is inconsolable. We learned that the last words a father told one of the victims, his 17-year-old daughter, were “Got to go, you’re going to be late.” Words that, he said, will live in his mind, agonizingly, “for eternity.”

We can celebrate [death penalty abolitionism] as an ascent towards the adoption of universal moral principles or lament it as emblematic of the decline of our civilization’s confidence.

From defense witnesses, we learned that Cruz bit other kids as a toddler, was not toilet-trained until he was four years old and looked like Alfred E. Newman as a boy. We learned from a former neighbor, who testified for hours with a mask worn as a decorative neck warmer, that Cruz was “very, very hyper” and “ran around and got into things.” A former teacher reported that Cruz wore a Spiderman suit to school one Halloween. Completing the picture of Parkland, Florida circa 2010, another neighbor informed us that he owned a 1983 Honda motorcycle which was “constantly in for repairs.” The inevitable defense motion to introduce “brain scans” of Cruz into evidence was denied, but otherwise the trial dragged on and on.

The crux of the defense’s “mitigating evidence” was that Cruz’s mother was a drug addict and alcoholic and that he, subsequently, suffered from fetal alcohol syndrome. Notwithstanding the undisputed attention his adopted mother paid to him, the die was cast while Cruz was still in the womb. The behavioral issues that emerged at a young age, culminating in a congeries of psychological ailments, were all pitifully inevitable, with Cruz robbed of agency in the narrative of his life.

The prosecution introduced evidence of social media postings in which Cruz indulged his hatred of blacks and women. In rebuttal, the defense pointed to evidence that Cruz engaged in Internet searches such as “why am I isolated?” It would be interesting to know what percentage of teenagers, including those who do not go on to commit murder, do such searches—50? 75? 99? In any event, it is unlikely that future mass murderers watch YouTube videos of adorable toddlers playing with the family Labrador.

Our visitor from the past may wonder: Was anything of material relevance learned over the course of the sentencing hearing? What was uncovered about Cruz’s “character” and the crime’s “circumstances” that was not already known? Can we stipulate that any human being who kills 17 strangers for the thrill of it is morally and psychologically deformed? Can we not further stipulate that the consequence of such horror will be a rolling wave of anguish, which will torment the families of the victims until their own deaths provide them, finally, surcease from pain. Have we not thus rendered the entire sentencing hearing superfluous?

Moral Ascent or Loss of Confidence

Capital trials a century ago bore little resemblance to the Cruz trial.  For example, on August 31, 1901, the anarchist Leon Czolgosz shot President William McKinley, who died a week later. A grand jury indicted Czolgosz on September 16. His trial began on September 23 and ended on September 25 in a guilty verdict. According to a 1901 issue of the Yale Law Journal,

The prisoner’s counsel realized that the trial had been fair, impartial and without reversible error. They made no motion for a new trial. . . . None of the legal devices for putting off the day of execution were resorted to, for, as good lawyers, they knew there was no proper ground for it, and as men of large common sense, they would not resort to a hopeless attempt, solely for the purpose of delay.

Czolgosz was executed on October 28, less than 2 months after the murder.

Most law professors today would judge Czolgosz’s trial and punishment to be emblematic of a vengeful era that was insensitive to the possibility of error, narrow in its understanding of personal responsibility, and indiscriminate in its use of violence by the state. By contrast, the Cruz trial, in its attention to detail, reflects the modern era’s progress. Before the state takes the extraordinary step of ending someone’s life, great care should be taken to confirm the morality of this irrevocable punishment.

The Cruz trial may be regarded, from this perspective, as a last gasp on the path to the nationwide abolition of the death penalty. Judge Alex Kozinski wrote years ago that “if we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.” The Cruz trial’s extravagance—and the verdict—reflect our society’s ambivalence about capital punishment.

The Furman Court may simply have been premature in striking down the death penalty. Such a decision today would be unlikely to excite widespread indignation. Many Americans are prepared to join what we are often told is the rest of the civilized world, which has already abolished capital punishment. According to Amnesty International, the ACLU, the ABA, and almost every high-status legal institution, America is a benighted outlier in its retention of capital punishment. Soon, however, this can be corrected. Steven Pinker, in his book on the Enlightenment, sees in the movement towards the global abolition of the death penalty “a mysterious arc bending towards justice.”

Perhaps, however, the movement to abolition, which is at this point most pronounced in the Western world (Japan, China, and much of the Arab world still retain capital punishment), can be afforded a less generous interpretation.

As already suggested, our observer from the past would be startled by the expenditure of resources to resolve what would, in his mind, have been a simple matter: the appropriate punishment for Nikolas Cruz. As the Czolgosz trial demonstrates, the early twentieth century was an era generally confident in its moral judgments, humble about the possibility of plumbing the mystery of human agency, imbued with a robust sense of community, and prepared to respond vigorously to criminal assaults on that community. From this perspective, the hand-wringing to resolve the fate of mass murderer Nikolas Cruz seems bizarre—and the trial a farce calculated to exacerbate the grief of the victims’ families.

If our observer from the past lifted his gaze to the judicial system and society that produced the Cruz trial and verdict, he might wonder whether the retention of the death penalty is a barometer of civilizational confidence. Perhaps, he might think, to shrink from the demands of retribution, when punishing the worst of criminals, reflects simple cowardice—and a lack of such confidence. In this view, death penalty abolition is not a moral triumph but the terminal point of a deep epistemological skepticism. Distinctions that previous ages presupposed—citizen versus alien; male versus female; criminals versus law-abiding—are resisted by many in the West today. Just a decade before the Czolgosz verdict, Friedrich Nietzsche wondered, in words that sound oddly prescient: “There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly.”

We should, by all means, judge the trial of Leon Czolgosz, but let us allow our observer from the past equal time in judging the trial of Nikolas Cruz. The latter reflects a deep current in our society that recoils from the “horrendous brutality” that is the death penalty. We can celebrate that as an ascent towards the adoption of universal moral principles or lament it as emblematic of the decline of our civilization’s confidence. Readers can judge for themselves which of these interpretations is more persuasive.