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Melissa Harris-Perry: Welcome to The Takeaway. I'm Melissa Harris-Perry. In February 2018, Nikolas Cruz murdered 17 people at Marjory Stoneman Douglas High School in Parkland, Florida. Yesterday, we learned his fate.

Speaker: Eligibility for the death penalty. We, the jury, unanimously find that the aggravating factors that were proven beyond a reasonable doubt outweighed the mitigating circumstances established up to count four no, signed and dated October 13th for person Benjamin Thomas.

Melissa Harris-Perry: Before we dig into this though, I want to pause for a moment, and I want to revisit a different moment from earlier in February 2018.

Speaker: I would ask you, as part of this sentencing, to grant me five minutes in a locked room with this demon. Would you do that?

Speaker: That is not--

Speaker: Yes or no?

Speaker: No, sir.

Speaker: Would you give me one minute?

Speaker: You know that I can't do that. That's not how I--

Speaker: I'm going to have to--

[screams]

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Melissa Harris-Perry: Do you remember this? This is the father of three daughters, all of whom were sexually assaulted by USA Gymnastics Doctor Larry Nassar. During Nassar's sentencing hearing, this father was begging the judge to let him handle the punishment for five minutes. Just one minute, and then finally lept across the courtroom and had to be physically restrained.

The video of those moments went viral and it's because we all get it. We understand his rage, his hurt, his desire for retribution. Who among us would not do what he did, or at least want to? Who doesn't feel the visceral, almost irresistible desire to protect our children from hurt and harm? Who among us cannot understand the feelings of Parkland parents when they learned that the life of the man who murdered their children had been spared?

Speaker: Today's ruling was yet another gut punch for so many of us who devastatingly lost our loved ones on that tragic Valentine's Day. 17 Beautiful lives were cut short by murder, and the monster that killed them gets to live another day.

Speaker: This should have been the death penalty 100%. I just don't understand this.

Speaker: I'm stunned. I'm devastated. This jury failed our families today.

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Melissa Harris-Perry: This pain is so human, and at the same time, for all of our understanding, the sentence feels so different for those who did not lose their beloved on that day. We asked to hear from you about your reactions to this sentence.

Martin: My name is Martin. I'm calling from Randolph, Massachusetts. I am always relieved when the death penalty is avoided.

Jerry: Hi, my name is Jerry. I'm calling from Corvallis, Oregon. I think the jury has shown that you don't have to have forgiveness to show compassion for another human being. Obviously, this is a flawed human being who has significant issues living in society. Life without parole is perfectly appropriate.

Melissa Harris-Perry: We always appreciate it when you lend your voices to our conversation. No,w I want to turn to Alexis Hoag-Fordjour, Assistant Professor of Law and Co-Director of the Center for Criminal Justice at Brooklyn Law School. Alexis, thanks so much for joining The Takeaway.

Alexis Hoag-Fordjour: Thank you so much for having me, Dr. Harris-Perry.

Melissa Harris-Perry: All right. Help me to understand how it is that our system either does or does not account for the preferences of victims' families.

Alexis Hoag-Fordjour: Thank you for having this conversation. You're right, this idea of vengeance and of retribution is a very human reaction, it's natural, it's embedded in the history of our country. I think we all understand it, but my initial reaction yesterday was this idea that the United States has started to have a deeper understanding of the underlying causes of crime and that certain punishments that we've enacted aren't necessarily a deterrence and this idea of the death penalty is at an all-time low.

I'm heartened by the fact that the jurors took their time, they weighed the aggravation, they weighed the mitigating circumstances, and they ultimately came up with this decision to sentence Mr. Cruz, not to the death penalty, but to life without parole.

Melissa Harris-Perry: Help us to understand why it is that our system works in such a way that I get dad jumping over the courtroom and wanting to lay his hands on someone who harmed his child, but the bailiff did restrain him. The judge did say, "No, actually you can't do that." Help us to understand why our system works that way.

Alexis Hoag-Fordjour: The death penalty had an overhaul in this country in the mid-1970s. In many states, the death penalty was an automatic sentence when someone was sentenced to a particular crime. There were no guidelines for jurors. There were no guidelines for a decision-maker. There were crimes like aggravated rape, particularly in the South, particularly when there were Black male defendants that if that was the conviction, then the death penalty was automatic.

Then in the 1970s, we realized there should be some guided discretion for decision-makers. Case law over time has limited the use of victim impact testimony, and it can come in sometimes after a conviction, sometimes after the potential sentences are identified but it's limited by law and by the US Constitution, which dictates what is the appropriate punishment, what would be cruel, what would be an unusual punishment.

It's also tied to aspects of due process. As lay people, there's a desire for people that are directly impacted to have a direct say in potential punishment, but that's not necessarily what our law allows for. What I also find interesting in terms of victims' participation in dictating how a criminal case should be prosecuted or what punishment should be available, sometimes local prosecutors, federal prosecutors aren't necessarily always in conversation with the victims' family members.

If they are in conversation, they don't necessarily allow their decisions to be impacted by what the victims want. I'm thinking principally of the shooting, the mass shooting in South Carolina with Dylann Roof. There were not uniform sentiment among the victims' family members, but some victims' family members did not want the federal government to seek the death penalty against Dylann Roof, but we know that's not what happened.

I'm thinking of other situations where victims' family members didn't want to go through the whole trial process, would've preferred a guilty plea, and to avoid a protracted proceeding having to relive, be retraumatized by the gruesome facts of the crime.

Melissa Harris-Perry: I'm also wondering when you were talking about the almost automatic nature at one point in our history, but even knowing that the death penalty exists as a possibility within any given state if they're not enacting it, in a case where 17 people are killed in a premeditated shooting and they're mostly children if the fact that it then doesn't happen makes it feel as though even multiple life sentences without parole constitutes saying, "Oh, your children, your family, your loved one didn't matter enough to get the harshest punishment." I'm wondering if even having access to the death penalty creates an expectation that it is the right outcome.

Alexis Hoag-Fordjour: Melissa, that's such a critical question. Rhetorically, from the reports that I'm reading, many of the parents, their initial reaction was, "Why do we have a death penalty? If not in this case, then when?" I think the decision of the jury reflects the fact that there has been this changing sentiment, public sentiment around the death penalty.

A question that I was introduced to by former professor Brian Stevenson while I was in law school was not that does a person deserve to die for what they did, but rather do we as a society deserve to kill? I think the jury in their decision yesterday in Broward County said no. I think our understanding as a society of the fact that they are not necessarily evil people, but they are people who are human beings who have had bad things happen to them, where they then get involved as Mr. Cruz did in this highly aggravated murder, multiple murders. I think there's a more nuanced understanding that we are all human beings.

Yes, vengeance and retribution are very natural human instincts, but so is mercy. That's a hard result to come to mercy, understanding, empathy, grace, but that's ultimately what the jury's decision yesterday reflected and the fact that there is decreased support for capital punishment in this country. We understand as a nation that the death penalty is a flawed operation and that it is riddled with racism, bias. We target people in this country who are racially marginalized, who have intellectual disabilities, other mental health ailments, and who are indigent.

Melissa Harris-Perry: Actually, Alexis, on exactly that. I want to bring in the voice of one of our callers. This is Lynette calling from Virginia.

Lynette: My immediate response was, "Would an African American male receive the same sentence?"

Melissa Harris-Perry: Alexis?

Alexis Hoag-Fordjour: No. I'm so glad the caller asked that question. Jennifer Everhart is this fantastic psychologist at Stanford. She headed this study called Looking Death Worthy. This was in 2006. They looked at the phenotypical features of a hypothetical defendant, and defendants who were more phenotypically black, so darker skin, broader nose coarser hair were more likely to be sentenced to death than hypothetical defendants who were less phenotypically black.

That was particularly true when a hypothetical victim was white. All other factors in this study were constant except for the phenotypical blackness, the appearance of the defendants. All throughout history and it's tied to the United States' legacy of enslavement with black people. There is this overriding presumption of criminality and dangerousness associated with black people. It's combined often with a jury selection system that often excludes people of color from juries.

As a post-conviction lawyer, I used to represent, and still do people sentenced to death in post-conviction. Looking at the trial transcripts in which prosecutors have primed jurors with racially coded dehumanizing language to really create this rift between the jurors and the defendant, that somehow the defendant is less than human, is not deserving of empathy. I've found in my own research, in my own practice that the black defendants, particularly black male defendants, are subjected to capital punishment at higher rates. It's most pronounced when there is an interracial nature to the crime. It's a black defendant and a white victim.

Melissa Harris-Perry: Alexis, I want to bring in one more voice of a caller. This is Beth Reynolds. She's calling from St. Petersburg, Florida.

Beth Reynolds: Hi, my name is Beth Reynolds and I'm calling from St. Petersburg, Florida, and I'm very disappointed in the outcome of that Parkland shooter. We, the taxpayers, are supporting this person for the rest of their life, and this person should be put to death.

Melissa Harris-Perry: All right. Help us to understand the functional realities for taxpayers when we're talking about the difference between a death sentence, a capital sentence, and a life without parole sentence.

Alexis Hoag-Fordjour: Sure. It's interesting, but the cost of sentencing somebody to life and incarcerating someone to life is actually less than if we were to sentence someone to death. In this country, even when a death sentence is rendered, the individual is not executed right away. I think that's a false perception. In my own practice, I worked for the federal public defenders and represented people who had been sentenced to death in their post-conviction or after-trial proceedings.

Many of my clients were still on death row, in some cases decades later. There are additional stronger constitutional protections in place for people who are sentenced to death. There is funding and there is time, and there is funding allocated to the court system to allow for legal appeals and representation during those appeals for people who are sentenced to death.

What we have found is that's necessary. Florida has one of the highest numbers of complete exonerations of people who have been originally sentenced to death. We have found gross constitutional violations for people who were sentenced to death and may have been involved. There was no innocence claim. They were involved in the aggravated act that resulted in the murder, but there was a constitutional violation having to do with the effectiveness of their representation, having to do with the very nature of the way that the trial was conducted.

There was perhaps a structural error with maybe the judge or some aspect of the trial or sentencing proceedings. It's actually less expensive to sentence somebody from a taxpayer's perspective sentence somebody to life or even life without parole rather than the death penalty.

Melissa Harris-Perry: Alexis Hoag-Fordjour is an Assistant Professor of Law and Co-director of the Center for Criminal Justice at Brooklyn Law School. Thank you so much for being here.

Alexis Hoag-Fordjour: Thank you. Dr. Harris Perry.

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