The ongoing sentencing trial of Nikolas Cruz, the 23-year-old Florida man who in 2018 murdered fourteen students and three staff members at Marjory Stoneman Douglas High School on Valentine’s Day, will test whether the seven men and five women on the jury hearing his case can hate the sin but muster the courage to spare the life of the sinner.
That is exactly what his defense team is asking them to do as they sit in judgment of the person who perpetrated one of this country’s most brutal mass murders. Like many death penalty defense lawyers before them, Cruz’s lawyers, to their credit, have not downplayed the gravity of the horrors their client inflicted in Parkland, Florida.
Instead, during the sentencing trial, or what the journalist Dahlia Lithwick once called a “trial of the heart,” they have focused their attention on who Cruz is and the factors that shaped his life. As the Supreme Court said more than fifty years ago, in capital cases those who impose the sentence must consider “any aspect of a defendant’s character or record…proffered as a reason for a sentence other than death.”
The question posed by Cruz’s defense is what punishment their guilty but deeply troubled client deserves. Getting jurors to spare the life of one of the “worst of the worst,” as death penalty supporters like to say, is no easy lift.
His defense lawyers have been putting on a complex mitigation case. They hope to get the jurors to see something of themselves, or if not themselves then some recognizable part of the human condition, in the life that Cruz has led.
This sudden about-face caught both the judge and the prosecution by surprise. They were not prepared to switch gears and get on with the trial. The defense decision precipitated a courtroom bruhaha, with the judge labeling the conduct of the defense “unprofessional.”
Whatever their reason for changing tactics, they had already offered compelling evidence that Cruz is someone whose difficult childhood left him psychologically and emotionally damaged.
From the moment Cruz was apprehended, it has been apparent just how troubled he is.
In a video of a police interrogation during which Cruz confessed, he told police “I hear demons…. A voice, demon voice…. The voice is, is in me…. To me, it’s me and then my bad side…. It’s a voice. The voice is in here and then it’s me, it’s just regular me, just trying to be a good person.”
Cruz claimed that the night before the murders, his demon voice commanded him to hurt people.
Cruz said he felt “worthless.” When he was alone in the interrogation room he could be heard muttering “I want to die. At the end, you are nothing but worthless, dude. You deserve to die.”
Deserve to die. What does it mean to say that anyone deserves to die? And how do we calculate what someone deserves and translate that into an appropriate punishment?
That is the problem that the Cruz jury will have to resolve, just as juries have had to do in countless other capital cases. Deservedness is a necessary precondition for punishment, but that does not mean that justice can be reduced to any simple calculus of desert.
But before taking up that knotty problem, let’s look more closely at what we have learned about Cruz during the penalty phase trial
The defense has highlighted the circumstances of Cruz’s birth, his problematic childhood, and his continuing and unaddressed mental health issues. And his lawyers have reassured the jury that they are not denying their client’s guilt.
Instead, as Melisa McNeill, one of the public defenders representing him, told the jury in her opening statement, “In telling you Nik’s story, in telling you the chapters of his life, we will give you reasons for life. That is called mitigation. Mitigation is any reason that you believe that the death penalty is not an appropriate penalty in this case.”
Cruz’s story was shaped before he was born when his birth mother continued to use large quantities of drugs and alcohol throughout her pregnancy. The result was that he was born with fetal alcohol syndrome.
According to the Mayo Clinic, “Fetal alcohol syndrome causes brain damage and growth problems. The problems caused by fetal alcohol syndrome vary from child to child, but defects caused by fetal alcohol syndrome are not reversible.”
As McNeill told the jury, “Because Nikolas was bombarded by all of those things, he was poisoned in the womb. Because of that, his brain was irretrievably broken, through no fault of his own.”
She called witnesses and presented evidence documenting his childhood developmental delays and difficulties with language and communication. Often frustrated and unable to process his frustration, he lashed out at others.
From his earliest years, it was clear that he was intellectually and emotionally impaired. From the time he turned six, Cruz needed special education services.
Defense witnesses described the substantial academic problems that made school a hostile environment for Cruz.
He ended up going to high school at the very place where he would later carry out his brutal killing spree. When he was there, staff members at Marjory Stoneman Douglas High School repeatedly raised concerns about his behavior. And when he turned eighteen, in 2017, having no path to graduation, he was expelled from school.
Later that year, he suffered another loss: the woman who had adopted him after his drug-using and alcoholic birth mother was no longer able to care for him passed away. Her death, defense witnesses testified, destroyed whatever shred of stability that remained in Cruz’s life.
As McNeill told the jury in her opening statement, all of this meant that the person who went to the Marjory Stoneman Douglas High School on February 14, 2018 was “damaged and wounded.” She said that “His brain is broken. He’s a damaged human being. And that’s why these things happen.”
What does all this have to do with what Cruz deserves and how he should be punished?
I can’t recap here the entire history of retribution. That theory suggests that figuring out what people deserve should be the key to punishment. But I can say that many, though not all, of contemporary retributive theories recognize that calculating deservedness requires focusing on both crime and criminal.
What anyone deserves, assuming it is possible to figure that out, is a function of what they do and of the life circumstances that shape who they are. Even mass murderers, so the argument goes, have stories about how they got to be the kind of person who would commit such heinous acts. Those stories can be hard to hear, but they need to be heard nonetheless.
The challenge death penalty defense lawyers face is that horrible crimes are startling, visible, and easy for jurors to grasp, but the criminal’s life story is not. The task, as the Cruz defense understands, is to get jurors to move beyond their astonishment at the cruelty of his crime in order to empathetically understand the life out of which that crime emerged.
And, even if we could confidently judge what anyone deserves, decisions about punishment do not automatically follow. The former focuses on what the alleged offender has done. But punishment is about what we will do in response and what that reveals about us.
There is no simple or adequate algorithm for moving from desert to punishment. Jurors must translate their assessment of the seriousness of a crime into a different metric, whether that be the amount of a fine, the length of a prison term, or the taking of a murderer’s life.
Cruz’s defense is trying to convince jurors that this act of translation does not require a death sentence.
Sparing his life would not be a merciful act. It is what justice demands. Doing justice is never easy, and it is even harder where, as in the Cruz case, the crime is so horrendous.
“Mass murderers,” a Los Angeles Times editorial recently noted, “may or may not feel they are being shown mercy when they are locked up for the remainder of their lives, but their position on the subject is of little account. State and federal punishments should not include execution because judicial killing has no place in a civilized society.”
At the end of the day, what the renowned death penalty defense lawyer Bryan Stevenson tells juries about all his clients applies to Nikolas Cruz as well: “We are all more than the worst thing we’ve ever done.”