Jonah Goldberg, the death penalty, and James Holmes

UPDATE: Welcome, National Review readers! You can find my response to William Voegeli here.

Jonah Goldberg has a column at NRO, saying that death penalty opponents are noticeably silent after the Aurora massacre because, hey, James Holmes is pretty inconvenient for their cause: "I say, let us give Holmes a fair trial. If convicted, execute him swiftly. If you disagree, explain why this man deserves to live."

The reason the death penalty debate hasn't flared up, post-Aurora, is because the debates have been focused on actions and policies that might've prevented the massacre in the first place. There are cases to be made both for gun reduction and arming citizens more thoroughly; there are arguments to be made about our mental health care system. Is anybody making the argument that the threat of the death penalty would've deterred Holmes? Even Goldberg isn't making that case. So the death penalty debate is kind of beside the point, as far as our current discussions go.

But, you know, Goldberg wants to have the debate. Since he implicitly concedes that deterrence isn't the point of the penalty—Colorado does have the death penalty, though it's rarely used—retribution is the real aim here. I'm not thrilled by the state killing people out of pure retribution, but I'll concede that many people may find it justification enough.

Goldberg's broader point, though, is that the existence of James Holmes somehow legitimizes the death penalty. There's no real question of his guilt, and he's white, so you can't say he'd be getting the punishment as the result of a racist system. Goldberg brushes off the idea of mental illness in this case, probably too easily, but there you go. This is an easy case, he's saying, so why not the death penalty now?

I've mentioned before the old lawyer's saw that "hard cases make bad law." Well, sometimes easy cases make bad law. James Holmes' plain guilt in this matter wouldn't make the death penalty system less likely to impose racially disparate punishments, wouldn't clear up the muddled questions of guilt in so many other cases. Goldberg doesn't argue that the death penalty system works well in the hard cases, only that it would in the easy cases. Well sure. That doesn't make the death penalty system worth the expense or the rampant injustice it's been shown to mete out. 

Bottom line: James Holmes doesn't prove the death penalty works. Want to execute him? The law seems to allow for it. Just don't pretend it means anything more than it does.