How Do Prosecutors Decide Whether to Seek the Death Penalty?

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April 2 2013 3:17 PM

Capital Decision

James Holmes’ prosecutors will seek the death penalty. How do they decide that?

Aurora, Colo., theater shooting suspect James Holmes sits in the courtroom during his arraignment in Centennial, Colo., on March 12, 2013.
Aurora, Colo., theater shooting suspect James Holmes sits in the courtroom during his arraignment in Centennial, Colo., on March 12, 2013.

Photo by R.J. Sangosti/Denver Post/AP

Prosecutors announced Monday that they would seek the death penalty against James Holmes, who is accused of killing 12 people in a Colorado movie theater in July. The district attorney contacted 800 people affected—victims and their family members—before making the decision. What factors do prosecutors consider when deciding whether to seek death?

Number of victims, money, public opinion, and perhaps race. There is a formal layer and an informal layer to a prosecutor’s decision to seek the death penalty. He first must establish that the case involves one of the state’s aggravating factors, which are supposed to separate ordinary murders from the exceptionally bad. James Holmes clearly satisfied two of Colorado’s 17 aggravating factors: He killed multiple victims and put bystanders at risk. Formal eligibility, however, is a low bar. A 1997 study concluded that seven out of eight first-degree murders in California between 1988 and 1992 included at least one aggravating factor, but prosecutors pursue capital punishment in only a small fraction of eligible cases. Whether a prosecutor will actually seek the death penalty depends more on local political culture, office resources, and personal opinion than on statutory considerations. Statistical analyses also suggest that unconstitutional factors such as race and gender are involved.

Some prosecutors’ offices rank the state’s aggravating factors by priority, pursuing the death penalty more often in cases involving multiple or random victims, torture, police murders, and murderers with prior violent offenses. The office may have a policy—written or unwritten—to avoid seeking the death penalty against younger defendants, very old defendants, or those perceived as being mentally challenged, even if they don’t meet the legal standard for mental illness.

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Resources are a major factor, although many prosecutors don’t publicly admit it. By some estimates, seeking death adds at least $1 million to the cost of a murder trial, and some death penalty cases cost 20 times as much as the average life-without-parole prosecution. While those cost estimates seem extreme, they may be an underestimate of the true cost differential. Many death-penalty-eligible defendants, such as James Holmes, offer to plead guilty in exchange for life without parole. In those cases, the choice is between an expensive, prolonged capital trial and no trial at all. And money isn’t the only resource constraint—many prosecutors choose life without parole because they lack the staffing to adequately prepare and prosecute a capital murder trial.

District attorneys are usually elected officials, and so they must take into account public perception. Survivors and victims’ families’ opinions matter, and some of them organize sophisticated media campaigns in favor of execution. In high-publicity cases like that of James Holmes, prosecutors face significant pressure to comply.

Personal philosophy also plays a role. In some districts, in fact, it’s the only factor that matters. Former Philadelphia District Attorney Lynne Abraham sought the death penalty in nearly every eligible case, prompting the New York Times to label her “The Deadliest DA.” On the other end of the spectrum, Bronx prosecutor Robert Johnson stated that he would never seek the death penalty after New York state reinstated capital punishment in 1995, causing Gov. George Pataki to replace him in the prosecution of an accused cop killer the following year. (Johnson fought his benching unsuccessfully in court.)

Race and gender also appear to factor into death penalty decisions. Black defendants who kill white victims are most likely to face capital prosecution, according to several studies, and men who kill women are also at high risk. These claims are based on statistical analyses. Few academics accuse prosecutors of conscious racism or sexism, although there’s no way to know with certainty what goes on inside the mind of an individual prosecutor.

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Explainer thanks Jules Epstein of Widener University School of Law and Nicholas Petersen of U.C.–Irvine.

Brian Palmer writes about science, medicine, and the environment for Slate and the Natural Resources Defense Council. Email him at explainerbrian@gmail.com. Follow him on Twitter.

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