On the Hearing to Put Jodi Arias to Death

As millions of cable viewers hang on the question of whether Jodi Arias will be sentenced to death, a different question comes to mind: is it really a death-penalty case?
05/15/2013 12:14 pm ET Updated Jul 15, 2013

As millions of cable viewers hang on the question of whether Jodi Arias will be sentenced to death, a different question comes to mind: is it really a death-penalty case? Sure, she committed a brutal and premeditated murder and tried to cover her tracks. Certainly, she was arrogant and remorseless in a protracted trial that cost taxpayers a bundle.

But the question remains: our lurid fascination with executions notwithstanding, is it a death-penalty case? And if the impassioned killing of a lover, even when pre-planned and carried out by a wholly unsympathetic figure, merits capital punishment, then what homicide doesn't?

Talking heads on the 24/7 news networks (I use the term "news" loosely here) and several of the legal analysts on their shows have been debating the question since Ms. Arias' conviction for first-degree murder on Thursday. And there seems to be some sentiment among the public to dispatch her as hastily as she did her boyfriend.

None of this means, however, that capital punishment should be seriously considered in a case like this.

Whatever your view of the death penalty and however outraged you found yourself with Ms. Arias as you watched her interminable testimony on TV, the cold fact is that convictions for barbarous acts of premeditated homicide by resentful lovers and other twisted souls are daily occurrences in courtrooms across the country. If death was imposed in all these cases, or even in a modest fraction of them, we'd be lining up death row inmates in the hallways for their lethal injections.

Thousands are convicted of brutal, premeditated homicides each year; only a handful are sentenced to death. Normally, the states that still put people to death do so only when particular aggravating circumstances are present, like when the murder victim was a cop in the line of duty or the killer was a mass murderer or on parole. But, despite the lesson of Furman v. Georgia that the death penalty is reserved for particularly heinous cases, every homicide in Maricopa County is handled like one. Public bloodlust, the grandstanding of prosecutors and the relentless quest of cable and Internet news outlets for viewers, however, mustn't extend the ugly reach of the ultimate punishment.

As some commentators have pointed out, and the prosecutor in the Arias case undoubtedly will point out again as the trial enters the "aggravation phase" in Arizona, the embittered woman killed her victim three times -- shooting him in the head, stabbing him nearly 30 times, and slitting his throat. A good dose of pentobarbital is downright merciful by comparison, right?

But that's one of the problems with putting her to death. The excessive bloodletting reflects the passion of an angry lover and makes the case, outside of the sensational coverage it's gotten, a garden-variety murder. And the fact that the defendant's lack of conscience galled us each afternoon for a month doesn't distinguish her in any meaningful way from the other bitter lovers who, with excessive zeal and equal remorselessness, murder their partner and get caught.

Premeditation itself is a strange notion. Dispassionate planning is a mark of moral culpability and, as such, a relevant factor in fixing the appropriate level of punishment. The trouble is, premeditation is a slippery slope. Rolling a plan over in your mind a month or a week ahead of time is enough, but what about an hour or a minute before the act? And everyone -- except the person who kills in their sleep -- consciously rolls the plan over at least once, if only quickly, even when they act in the heat of passion, which, as any first-year law student knows, actually mitigates murder to manslaughter.

Difficulties in line-drawing aside, I can think of only three arguments that would motivate anyone to seriously contemplate putting Jodi Arias to death: (1) despite the fact that most countries and many states have outlawed capital punishment, all defendants convicted of homicide should be done away with; (2) we've seen Jodi Arias a lot on TV and she really rubs us the wrong way; or (3) anyone whose trial and conviction is carried live on CNN must be put to death.

Whatever her ultimate fate, the case illustrates the arbitrary nature of capital punishment. And, as my colleague Al Garcia points out, Ms. Arias' preference for the "freedom" of death over life imprisonment reveals an irony that proponents of the death penalty should come to understand: life imprisonment is far more punitive.

Jay Sterling Silver is a law professor at St. Thomas University School of Law in Miami Gardens, Florida, whose commentary has appeared in The New York Times and other national and local media.