The first week of the death penalty trial of Nikolas Cruz — the person who killed 17 people and wounded 17 more on Feb. 14, 2018, at Marjory Stoneman Douglas High School in Parkland, Fla. — was nothing short of gut wrenching.
A former student at the school, Cruz had been expelled and was 19 years old at the time of crime. In just under six minutes, he took the lives of 14 students and three faculty members.
Michael Satz, the lead prosecutor, spent the first week of the death penalty trial reconstructing the horrors of the crime. He presented evidence of its devastating effects on the survivors and the families of those murdered and wounded. Seven men and five women jurors will decide Cruz’s fate.
Cases like Cruz’s pose a painful dilemma for death penalty abolitionists.
Opponents of capital punishment have made substantial progress in their efforts to end it by shifting the national conversation away from the horrors of cases like Cruz’s; instead, they stress the day-to-day realities of a death penalty system that risks executing the innocent, that is plagued by racial discrimination, and that is very costly to administer.
Each time a horrible crime grips the nation’s attention, abolitionists have to decide whether to rally to the murderer’s defense and offer arguments about why even cold-blooded, mass murderers should not be executed. But what words can anyone say to explain why a killer like Cruz should not be put to death?
In the Parkland case, should death penalty opponents take a pass and stay silent, fearful that not doing so would damage the abolitionist cause?
Cruz’s guilt was never in doubt. In October of last year, he entered guilty pleas for the murders or attempted murders of the people he shot.
At that time he also apologized to his victims and their families and asked them to spare his life. “I am very sorry,” Cruz said, “for what I did, and I have to live with it every day … It brings me nightmares, and I can’t live with myself sometimes … I am really sorry, and I hope you’ll give me a chance to try to help others. I believe it’s your decision — not the jury’s — whether I live or die. I’m sorry.”
But Florida law requires that the sentencing decision be made by a jury after what is called a sentencing trial. A death sentence requires a unanimous jury decision. Jury selection in the Parkland case began in April and consumed many weeks.
Last week, Satz began trying to persuade the jury to sentence Cruz to death by reading, one at a time, the names of each of Cruz’s victims and recounted the number of times each one of them had been shot. He showed the jurors videos taken inside the classrooms during Cruz’s rampage and had them listen to the sound of gunshots and the children and their teachers.
The jury will also tour the school building where the shooting took place, which has been closed since day of the shooting.
When they present their case, Cruz’s lawyers plan to show that he had a very difficult and troubled childhood and suffers from serious mental health problems. He had tried unsuccessfully to get treatment.
But by the time they get to a chance to do so, the prosecution’s story will have reached well beyond the courtroom and made headlines across this country. It is impossible for anyone, including the most ardent opponents of capital punishment, not to be shocked, horrified and deeply moved by what we will have read or heard.
As the New York Times reports, “In modern times, no American gunman who killed so many people in a single attack has survived to face trial until now.”
The origins of the separate penalty phase trial in capital cases can be traced back to the United States Supreme Court’s 1976 decision Gregg v Georgia, which upheld the constitutionality death penalty.
In that case the court approved a Georgia statute which required among other things “a separate sentencing hearing following a jury’s finding that a capital murder has been committed.” In the sentencing hearing “the jury must find the existence of one or more specified aggravating circumstances” and consider almost any mitigating factor that the defense wishes to present to the jury. While bifurcated trials are not constitutionally required, soon after Gregg, almost all death penalty states adopted the Georgia model.
For a long time, commentators have noted that such penalty phase hearings are strange and unsettling.
In 2004 Dalia Lithwick called them “trials of the heart.” In such trials, she said, the jury often hears that “The defendant was abused as a baby; the victim was a wonderful wife and mother. Witnesses are, in short, encouraged to take the stand and emote — describing how desperately they miss the victim, or how tragic the life circumstances of the defendant really were.”
Cruz may not have been technically right when he said that the victims and the families of the survivors would decide his fate, but as the prosecution presented its case last week, one couldn’t help but wonder whether there was a glimmer of truth in what he said.
As Lithwick puts it, “The penalty phase no longer represents a contest between the defendant and the state but, rather, becomes a contest between the defendant and the victims’ survivors.”
In this contest, it can be hard for opponents of the death penalty to find a place to stand.
Arguing that Cruz should not get the death penalty risks seeming heartless or insensitive to the horror of what he did. And doing so would come at the cost of associating the campaign against the death penalty with one of America’s most heinous killers. Concentrating efforts on the case of one infamous criminal might divert attention from the daily realities of capital punishment and the damage it does to our democracy and our culture.
Far from the excruciating drama of the Parkland case, in many less celebrated cases, the death penalty continues to legitimize vengeance, intensify racial divisions, risk condemning the innocent, and damage our political and legal institutions in ways that are now being recognized by the American people.
But the Parkland case offers abolitionists the chance to explain that whatever we think about Cruz and the crimes he committed, the choice that the jury is being asked to make is not just about what he did or what they may think he deserves.
It is also about those who impose punishment and the society that authorizes it.
At a time when gun violence is plaguing American streets and communities, abolitionists should ask all of us to consider whether responding to even the most gruesome and horrific kind of violence with more violence serves us well. If they are ever to end the death penalty for everyone, they cannot avoid the cases of even those who society brands the “worst of the worst.”
As former Supreme Court Justice Louis Brandeis wrote almost a century ago, “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” In the Parkland case, the jury must consider what kind of example it wants to set.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.