The Larger Context of the Jodi Arias Jury’s Inability to Sentence Her to Death

Opinion, Crime, Murder, NakedLaw, News

Much was made last week of the Jodi Arias jury’s failure to reach a decision on the death penalty, after she was convicted of the first degree murder of her former boyfriend Travis Alexander in a lengthy, sensationalized Arizona trial.  Was there just one stubborn holdout?  (No.  The vote, reportedly, was 8-4 for execution.)  Was it the fact that eight of the twelve jurors were male, and men don’t want to put a young, attractive woman to death?  (Maybe.)  Was it our system’s well-documented racial bias, in which African-Americans and men are far more likely to be sentenced to death than white women?  (Probably, in part.)

But almost never discussed was the context:  Americans have increasingly lost our zeal for the death penalty, even in cruel, savage murder cases like this one.  (Arias shot her victim in the head, and stabbed him in the back and elsewhere nearly thirty times, cutting his throat ear to ear, nearly decapitating him.)  A few weeks ago Maryland abolished the death penalty, becoming the sixth state in six years to do so.  Overall, eighteen states have eliminated it.  And for good reason.

Human error will always be present

DNA evidence has exonerated convicted death row inmates, and given that our justice system will always be administered by humans, human error will always be present.  We cannot accept a system in which that error cannot be corrected, and death is irreversible.  Study after study has proven beyond a shadow of a doubt that racism is a pernicious factor in determining who lives and who dies.  The race of the victim, in particular, is often decisive.  Counterintuitively, the death penalty is far more expensive to taxpayers than life in prison without the possibility of parole, because death row inmates are, and must be, entitled to numerous expensive appeals.  The death penalty does not deter criminal behavior, and it’s marred by prosecutorial and law enforcement corruption, a prime reason why four our of five Maryland death penalty convictions were overturned on appeal between 1995 and 2007.

The only advantage of the death penalty is retribution, a not inconsiderable upside.  Having analyzed the repulsive details of nearly every high profile American murder case in the last dozen years as a television legal analyst, I have ached for the ultimate punishment for evildoers like David Westerfield or John Couey, who kidnapped, raped and hideously murdered little girls.  There is injustice each day men like this continue to breathe, to laugh, to read, to eat a meal.

But there is greater injustice in the death penalty, which is why nearly every other developed country in the world has abolished it, some a century or more ago.  The UK, France, Canada, Australia and nearly every other country with democratic values similar to ours have abolished it.  As a death penalty nation, the United States remains in the company of countries like Iraq, Yemen, Saudi Arabia and North Korea.

Perfection is impossible

The Supreme Court has held that only juries can sentence a defendant to death, and American juries have increasingly declined to do so as awareness of the shortcomings of our system have come to light.  As Colorado Governor John Hickenlooper said last week, in granting a temporary reprieve to a quadruple murderer:  “If the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly.”  He acknowledged that Colorado was far from it.  And the rest of us should acknowledge that perfection is a standard our system can never attain.

Most likely, the Arias jury vote is a recognition of that human fallibility.  Whether Arias ends up with a sentence of life without parole or death, she will spend the rest of her days incarcerated and die in prison.  As one juror said after the trial, “she is sentenced to death no matter what.”

The opinions expressed here represent my own and not necessarily those of