James Holmes Trial: Why the Aurora Shooter Should Be Executed


James Eagan Holmes, the Aurora, Colorado, shooter needs to die. I am saying this as one who does not believe that we should apply the death penalty liberally. Given the possibility of executing the wrong person, I do not support implementing it in cases in which there is any question of guilt involved. But in the case of James Holmes, his attorneys will not plead innocence; they will plead insanity.

Before going further, I should add two caveats: I am not familiar enough with criminal law to say whether an insanity plea should apply; the shooter may not have known the difference between good and evil, but a mind that could concoct and carry out such a plan pretty much is pure evil. Also, I have no proof as to whether or not James Holmes is the shooter and no knowledge of the subject beyond what I can read on the news; this piece presumes guilt, but jurors for the trial have a legal and ethical responsibility to presume otherwise.

The case in Colorado has reframed the question of capital punishment: Whereas the media discussion usually focuses on whether or not the defendant is guilty, the only question now seems to be whether or not the death penalty is just. Recently, a PolicyMic colleague took the position that killing by the government can never be just, writing: "monsters like the Aurora shooter and bin Laden must be given due process." I agree on the principle of "due process," but not its application.

Maintaining the legitimacy of due process of law is precisely the reason it is so important that the government execute criminals like James Holmes. Whether or not we approve of all actions that the government takes, there is no question that the government is the only institution that can legally use force for any other reason except defense of self, property or peers. In this case, death is certainly the penalty that fits the crime.

This doesn't mean that all of the arguments cited in favor of capital punishment apply. Executing James Holmes will probably not deter more mass shootings from taking place. Usually, mass shooters are suicidal and the prospect of being punished for their actions does not register high on their list of concerns. But it is a major concern for the members of the community that the shooter affects.

When people no longer have confidence in the government to punish crime appropriately, they begin to take matters into their own hands. A police officer that loses his partner to a gunman is less likely to try to take the gunman alive if he knows that imprisonment without parole is the maximum punishment for suicide. Several years ago, I was at a lecture by the English journalist Peter Hitchens, during which he claimed that British vigilantism had risen since the elimination of capital punishment and a quick Google search for vigilantism in the United Kingdom brings you to news stories like this and websites like this.

Once vigilantes begin to take matters into their own hands, they will begin to punish major and minor crimes alike: undocumented workers and shoplifters might begin to find themselves targets of vigilante justice. Hollywood has given America a somewhat positive view of vigilantes, but real life vigilantes are more like Travis Bickle than Batman. Vigilante mobs don't offer due process of law. They don't elect a jury of twelve peers. They don't lock criminals up with the intention of rehabilitating them one day or, at worst, execute them after providing a final meal. Instead, they beat suspects within an inch of their lives; take fingers, hands or genitals; or just kill the suspects so that they won't raise assault charges.

The only other punishment that the government has for James Holmes is life in prison under conditions of hard labor. But placing someone like that in the penal system is a questionable decision as Holmes could pose a threat to guards or prisoners; while he may not be as used to the culture of violence as most hardened criminals, learning to kill without a gun doesn't take long for someone who is mentally deranged. Furthermore, were he given a maximum sentence short of the death penalty, he would enter into a state penitentiary with nothing to lose.

Max Weber famously wrote that the government is an institution that "upholds the claim to the monopoly of the legitimate use of physical force in the enforcement of its order." But when the government stops using the amount of physical force that average citizens deem appropriate, it is not surprising that individuals or organizations start using illegitimate physical force to uphold their idea of order. If the government wants to be responsible for upholding social order, sometimes this means taking physical force to its furthest reach.