On February 14th, 2018, Nicholas Cruz carried out one of the deadliest school shootings in American History when he took an AR-15 semiautomatic rifle to Marjory Stoneman Douglas High School and shot dead 17 people.[1] After a jury indicted him on 17 counts of murder and 17 counts of attempted murder, state officials announced they would be pursuing the death penalty.[2] On July 18th, 2022, his sentencing trial began.
The trial was an emotional ordeal, featuring weeks of heartwrenching testimonies, alarming video footage of Nicholas shooting some victims at point-blank range and a tour of the school building where the attack occurred to meticulously rehash his crimes for the jury.[3] The lead prosecutor, Michael J. Satz, described Cruz as “evil” and “worse than Ted Bundy”.[4] As Sarat puts it, “If ever there was a living embodiment of what some death penalty supporters call the “worst of the worst,” a poster boy for the supposed necessity of capital punishment, Nikolas Cruz seemed to be it”.[5]
Yet, on October 13, 2022, the jury recommended that Cruz be sentenced to life in prison without the possibility of parole, which Broward Circuit Judge Elizabeth Scherer formally imposed on 2 November - a crucial moment in the ongoing debate about the future of America’s death penalty.[6] This was even though every selected juror was questioned to ensure they were at least comfortable with imposing the death sentence - a process known as “death qualified”, which has been criticised for producing skewed, unrepresentative juries.[7] It is all the more remarkable coming from Florida, a deep red state that has one of the largest death row populations.[8]
Public support for the death penalty has waned considerably over the last several decades, propelled by a growing recognition of its arbitrariness, unreliability, and discriminatory application.[9] The number of death sentences and executions has been declining across the country since the 1990s, and, in 2021, only 11 executions were carried out across five states - Texas, Oklahoma, Missouri, Mississippi and Alabama.[10] Meanwhile, more states have abolished the death penalty in the last 15 years than in any comparable period in American history.[11]
However, this changing public sentiment has not previously been enough to spare the lives of mass murderers like Cruz. As The Times notes, Cruz’s trial was a rarity since “most [perpetrators] either kill themselves or die in a fight with the police during their attacks."[12] Yet, for those that do make it to trial, juries return with death verdicts for the overwhelming majority, even when the defendant has a well-funded team of lawyers and experts.[13] For instance, Timothy McVeigh was unanimously sentenced to death in 1997 for killing 168 people when he blew up a federal building in Oklahoma City.[14] In 2015, a jury sentenced Dzhokhar Tsarnaev to death for his role in the Boston Marathon bombing despite pleas from some of the families of his victims for a life-in-prison sentence.[15] Similarly, Dylann Roof was sentenced to death in 2017 after he killed nine Black people during a bible study session at a Church in South Carolina, despite similar objections from the victims' families.[16] As Sarat writes, all of these “set the stage for what seemed like an almost certain death verdict in the Cruz case.”[17]
So, why was Cruz’s case different? The answer lies in the defence’s mitigations
The prosecution argued that the gravity of Cruz’s crimes warranted his execution. Under Florida state law, the state must prove at least one of 16 possible aggravating factors beyond a reasonable doubt to justify the death penalty.[18] These include if a defendant has a previous violent felony, knowingly created a great risk to a large number of people or if the murder was especially “heinous, atrocious or cruel.”[19]
The lead prosecutor, Michael J. Satz, claimed Cruz’s killings were premeditated and precisely planned.[20] He told the jury Cruz had researched other infamous mass shootings, including Columbine High School in 1999, Virginia Tech in 2007, a movie theatre in Aurora, Colorado in 2012; and a 2017 music festival in Las Vegas.[21] Cruz’s preparations also allegedly included altering his AR-15 to improve its accuracy, stockpiling vast quantities of ammunition, and predicting the police response time.[22] Satz told the jury, “This plan was goal-directed. It was calculated. It was purposeful, and it was a systematic massacre.”[23] The jury unanimously agreed that the prosecution had proven that the killings were aggravated.[24]
However, Cruz’s defence team did not attempt to deny, minimise or justify his crimes - they even conceded that they were indeed horrible.[25] Instead, the defence carefully constructed a story of Cruz’s difficult life from birth to teenager that they claimed drove him to violent behaviour.[26] According to the defence, these circumstances – also known as “mitigating factors” - offered grounds to spare his life.[27]
The lead defence lawyer, Melisa McNeill, 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.”[28] Though Florida state law list 8 kinds of “mitigating factors” that defence teams can use to reduce a defendant’s sentence, the last is a general “catchall” which allows jurors great latitude: “The existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty.”[29]
In Cruz’s case, the defence heavily focused on his birth mother’s heavy alcohol consumption and smoking during her pregnancy, which resulted in him being born with foetal alcohol spectrum disorder.[30] According to the Mayo Clinic, “Foetal alcohol syndrome causes brain damage and growth problems. The problems caused by foetal alcohol syndrome vary from child to child, but defects caused by foetal alcohol syndrome are not reversible.”[31] The team called witnesses and presented evidence that documented his early developmental delays and behavioural problem that stemmed from his difficulties with communication.[32] From the age of 6, it was clear Cruz was intellectually and emotionally impaired although he never received proper treatment.[33]
The defence also detailed Cruz’s academic struggle, which made school a hostile environment. By the time of the shooting, Cruz had been expelled from school with no path to graduate.[34] He also suffered the loss of his adoptive mother that same year, which the defence claimed, “destroyed whatever shred of stability that remained in Cruz’s life”.[35] McNeill told the court: “Nikolas was … poisoned in the womb. Because of that, his brain was irretrievably broken, through no fault of his own.”[36]
The prosecution pushed back against these claims, arguing that "Whether or not his mother smoked during pregnancy did not turn [him] into a mass murderer."[37] Yet, three jurors were persuaded that these mitigating factors outweighed the aggravating factors proven by the prosecution and voted against the death penalty.[38] Florida’s sentencing law requires death sentences to be imposed unanimously by a jury.[39] As a result, Cruz was sentenced to life without the possibility of parole.
Historically, mental illness has been an unreliable method of mitigating a death sentence. Mental illness is disproportionately high among offenders on death row in the US, and one 1989 case study showed that it acted as anaggravating factor in capital sentencing.[40] However, Cruz’s recent sentence is the latest indication that attitudes are changing. Many death penalty supporters believe that criminals such as Cruz deserve death because they represent a subsection of society so wicked or cruel that society has an obligation to execute them.[41] However, Cruz’s defence team convinced three jurors that even someone responsible for a deadly school shooting deserves mercy. Despite the efforts of the prosecution to brand Cruz as “evil”, his defence team peeled back this label to reveal a complex individual possessing extraordinary tales of personal hardship. Such an outcome suggests this desire to label some criminals as “the worst of the worst” label does not hold up to scrutiny.
Not everyone on the jury agreed to spare Cruz’s life. It was reportedly an intense deliberation, with the local sheriff’s office now investigating reports over one juror feeling threatened.[42] The deliberation came under further scrutiny after reports of a “hold out” juror, whose opposition to the death penalty and executing the mentally ill prevented a unanimous decision from being reached.[43] That juror, later identified as Denise Cunha, sent a handwritten letter to the judge denying claims that she had already made up her mind on voting for life before the trial started. She wrote: “I maintained my oath to the court that I would be fair and unbiased.”[44]
The outcome has also sparked outrage among some of the parents of the victims and other public figures. Fred Guttenberg, who lost his daughter Jaime in the shooting, said after the decision: “I don’t know how this jury came to the conclusions that they did today. But 17 families did not receive justice.”[45] Florida Governor Ron DeSantis also weighed in to say that the outcome “stings.”[46] There are now discussions around changing Florida’s sentencing law to remove the jury unanimity requirement in death sentencing trials, which is a relatively new requirement.[47]
Ilhan Alhadeff, whose daughter, Alyssa, was murdered, asked The New York Times, if Cruz didn’t get a death sentence, “What do we have the death penalty for?”[48]
Alhadeff's question is not only a demonstration of his frustration and heartbreak, but encourages us to reflect on the place of capital punishment in society. Death penalty defence lawyer Bryan Stevenson tells juries about all his clients: “We are all more than the worst thing we’ve ever done.”[49] In a world where this maxim extends to mass murderers, it becomes difficult to see how the death penalty can be justified at all.
Endnotes: [1] “School shootings in the U.S. as of May 2022, by victim count”, Statista Research Department, accessed 30 October 2022, https://www.statista.com/statistics/476381/school-shootings-in-the-us-by-victim-count/. [2] McLaughlin, Elioot C. “Prosecutors will seek death penalty in Parkland school massacre”, CNN, accessed 30 October 2022, https://edition.cnn.com/2018/03/13/us/nikolas-cruz-parkland-massacre-death-penalty/index.html [3] Craig, Tim. “Parkland school shooting jury spares gunman death penalty in 2018 massacre”, The Washington Post, last modified 13 October 2022, https://www.washingtonpost.com/nation/2022/10/13/nikolas-cruz-spared-death-penalty-parkland-shooting/ Kornfield, Meryl and Maria,Lusia Paul. “Jury sees bloodstained halls in rare tour of Parkland school shooting scene”, The Washington Post, last modified 5 August 2022, https://www.washingtonpost.com/nation/2022/08/05/parkland-shooting-trial-visit-school/. [4] “Michael Satz called Nikolas Cruz 'evil; worse than Ted Bundy,' lawyers claim”, Local10, accessed 30 October 2022, https://www.local10.com/news/2019/09/09/michael-satz-called-nikolas-cruz-evil-worse-than-ted-bundy-lawyers-claim/. [5] Sarat, Austin. “Why the Parkland Jury Chose Not to Sentence Nikolas Cruz to Death”, Slate, 13 October 2022, https://slate.com/news-and-politics/2022/10/why-did-parkland-jury-sentence-nikolas-cruz-no-death-penalty.html. [6] Andone, Dakin, Denise Royal and Alta Spells. “Parkland school shooter sentenced to life in prison without parole for 2018 massacre”, CNN, updated 2 November 2022, https://amp.cnn.com/cnn/2022/11/02/us/parkland-shooter-nikolas-cruz-sentencing-wednesday/index.html. [7] Goldberg, Nicholas. “Why the jury is stacked against the Parkland shooter — and why you should care”, Los Angeles Times, 21 July 2022, https://www.latimes.com/opinion/story/2022-07-21/cruz-parkland-death-penalty-jury. [8] Fins, Deborah. “Death Row U.S.A, Spring 2022”, NAACP Legal Defense & Educational Fund, 1 April 2022, https://www.naacpldf.org/wp-content/uploads/DRUSASpring2022-22.pdf. [9] Millhiser, Ian. “The decline and fall of the American death penalty,” Vox, 30 December 2020, https://www.vox.com/2020/12/30/22187578/death-penalty-united-states-executions-decline-gregg-georgia-bucklew-precythe [10] Millhiser, Ian. “The decline and fall of the American death penalty.”; “Execution List 2021”, Death Penalty Information Center, 10 February 2022, https://deathpenaltyinfo.org/executions/2021. [11] Millhiser, Ian. “The decline and fall of the American death penalty.” [12] “Families Shocked as Jury Spares Life of Parkland Killer,” The New York Times, updated 14 October 2022, https://www.nytimes.com/live/2022/10/13/us/parkland-trial-verdict. [13] Chammah, Maurice and Keri Blakinger. “Death Penalty for Mass Shooters? Depends On Where They Strike.” The Marshall Project, 5 March 2021, https://www.themarshallproject.org/2021/04/05/death-penalty-for-mass-shooters-depends-on-where-they-strike [14] Kenworthy, Tom and Lois Romano. “McVeigh Condemned to Death”, The Washington Post, 14 June, 1997, https://www.washingtonpost.com/wp-srv/national/longterm/oklahoma/stories/condemn.htm. [15] Woolf, Nicky. “Boston Marathon bomber Dzhokhar Tsarnaev sentenced to death,” The Guardian, 15 May, 2015, https://www.theguardian.com/us-news/2015/may/15/boston-bomber-dzhokhar-tsarnaev-death. [16] Sack, Kevin. “Trial Documents Show Dylann Roof Had Mental Disorders,” The New York Times, 2 February 2017, https://www.nytimes.com/2017/02/02/us/dylann-roof-charleston-killing-mental.html. [17] Sarat, “Why the Parkland Jury.” [18] Section 921.141(6)(a - p), Florida Statutes (2022), sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0921/Sections/0921.141.html [19] Section 921.141(6)(h), Florida Statutes (2022). [20] Andone, Dakin and Denise Royal. “Prosecutors ask jury to recommend death sentence for Parkland Shooter”, CNN, updated 11 October 2022, https://edition.cnn.com/2022/10/11/us/nikolas-cruz-trial-closing-arguments/index.html. [21] Andone and Royal. “Prosecutors ask jury.” [22] Andone and Royal. “Prosecutors ask jury.” [23] Craig, “jury spares gunman death penalty.” [24] Evans, Gareth. “Parkland school shooting: Why the gunman was spared the death penalty”, BBC News, 14 October 2022, https://www.bbc.com/news/world-us-canada-63237156. [25] Levenson, Eric, Denise Royal and Sara Weisfeldt. “Nikolas Cruz’s defense says his brain was ‘poisoned’ by birth mother’s addictions in death penalty trial”, CNN, 23 August 2022, https://edition.cnn.com/2022/08/22/us/nikolas-cruz-trial-defense/index.html. [26] Levenson, Eric, Denise Royal and Sara Weisfeldt. “Nikolas Cruz’s defence.” [27] Levenson, Eric, Denise Royal and Sara Weisfeldt. “Nikolas Cruz’s defence.” [28] Levenson, Eric, Denise Royal and Sara Weisfeldt. “Nikolas Cruz’s defence.” [29] Section 921.141(7)(h), Florida Statutes (2022), ‘sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.’ http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0921/Sections/0921.141.html [30] Levenson, Eric, Denise Royal and Sara Weisfeldt. “Nikolas Cruz’s defence.” [31] “Foetal Alcohol Syndrome”, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/fetal-alcohol-syndrome/symptoms-causes/syc-20352901. [32] Levenson, Eric, Denise Royal and Sara Weisfeldt. “Nikolas Cruz’s defence.” [33] The Washington Post Staff, “Red flags: The troubled path of accused Parkland shooter Nikolas Cruz”, The Washington Post, 10 March 2018, https://www.washingtonpost.com/graphics/2018/national/timeline-parkland-shooter-nikolas-cruz/. [34] The Washington Post Staff, “Red flags.” [35] Levenson, Eric, Denise Royal and Sara Weisfeldt. “Nikolas Cruz’s defence.” [36] Levenson, Eric, Denise Royal and Sara Weisfeldt. “Nikolas Cruz’s defence.” [37] Evans, Gareth. “Parkland school shooting.” [38] Andone, Dakin, Denise Royal and Alta Spells. “Parkland school shooter sentenced to life.” [39] Section 921.141(2), Florida Statutes (2022) [40] Baumgartner, Frank R. and Betsy Neill. “Does the death penalty target people who are mentally ill? We checked,” The Washington Post, 3 April 2017, https://www.washingtonpost.com/news/monkey-cage/wp/2017/04/03/does-the-death-penalty-target-people-who-are-mentally-ill-we-checked/; Berkman, Ellen Fels. “Mental Illness as an Aggravating Circumstance in Capital Sentencing.” Columbia Law Review 89, no. 2 (1989): 291–309. https://doi.org/10.2307/1122823. [41] Blecker, Robert. “Among Killers, Searching For the Worst of the Worst,” The Washington Post, 3 December 2000, https://www.washingtonpost.com/archive/opinions/2000/12/03/among-killers-searching-for-the-worst-of-the-worst/d48af4b8-dbb2-44d6-9b16-e2966eda7015/?utm_term=.111abda4e7fa. [42] Weisfeldt, Sara, Jason Hanna, Elizabeth Wolfe, Leyla Santiago and Christina Maxouris. “‘It got ugly.’ Jurors in Parkland school massacre case report feeling threatened, disrespected during tense deliberations”, CNN, 14 October 2022, https://edition.cnn.com/2022/10/14/us/parkland-nikolas-cruz-jury-verdict-friday/index.html. [43] “Parkland gunman sentencing trial jury foreman Benjamin Thomas said it didn't go the way he would have wanted”, CBS Miami, 13 October 2022, https://www.cbsnews.com/miami/video/parkland-gunman-sentencing-trial-jury-foreman-benjamin-thomas-said-it-didnt-go-the-way-he-would-hav/#x [44]Olmeda, Rafael, Brittany Wallman, Angie DiMichele, Susannah Bryan and Lisa J. Huriash. “Jury rejects death sentence for Stoneman Douglas school shooter in all 17 murders,” The South Florida Sun-Sentinel, 13 October 2022, https://www.sun-sentinel.com/local/broward/parkland/florida-school-shooting/fl-ne-parkland-cruz-trial-verdict-20221013-sv3as45atzfadardqkw37azq54-story.html. [45] Marcus, Josh. “Parkland families’ outrage over Nikolas Cruz verdict highlights a key issue with death penalty trials,” The Independent, 1 November 2022, https://www.independent.co.uk/news/world/americas/crime/nikolas-cruz-death-penalty-sentence-b2215401.html. [46] Marcus, Josh. “Parkland families’ outrage.” [47] “The Parkland shooter's life sentence could bring changes to Florida law”, NPR, 15 October 2022, https://www.npr.org/2022/10/15/1129291565/parkland-life-sentence-florida-law-death-penalty. [48] Mazzei, Patricia and Nicholas Bogel-Burroughs. “‘What Is the Death Penalty For?’ Parkland Victims’ Families Question Jury’s Decision to Spare Gunman’s Life,” The New York Times, 13 October 2022, https://www.nytimes.com/2022/10/13/us/parkland-families-death-penalty.html.
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