In  yesterday’s post about the absurd media speculation and dissemination of factoids and commentary without (as yet) any clear connection to reality about James Holmes, the Aurora Shooter, I segued into a criticism of Doug Berman’s post expressing his “gut reaction” that the death penalty brought him comfort.

The distinction between other cries for death, such as that of  Bill Otis throughout the comments to Berman’s post, and Doug’s is that Otis never met a miscreant he didn’t think should die (yes, hyperbole, but it makes the point), while Berman is the Robert J. Watkins/Procter & Gamble  Professor of Law at Moritz College of Law at The Ohio State University, and has positioned his scholarship to be a leading academic on the issue of sentencing. 

As such, he has attained a significant level of credibility on sentencing matters. In other words, his thoughts on sentencing are taken seriously. Maybe too seriously, but having chosen to stake out his ground, he carries the burdens that go with it.

Recognizing that his embrace of the death penalty was perhaps (and certainly in my view) premature, Doug sought to clarify :

Not surprisingly, my first post about the horrific mass murder in Colorado this past week has generate lots and lots of strong comments from all sorts of perspectives.  I do not wish to respond or even engage with all the commentary (which, helpfully, has been at list a bit more respectful and measured than sometimes happens in some comment threads here), but I do want to encourage a bit more precision in how people understand my first-cut reaction and also in how they discussion this case.  I do so by using what I consider an important (and too rarely stressed) distinction between offense conduct and offender characteristics in the assessment of crimes and punishments.

And though we still are learning more about the offense, we already know enough to make some basic first-cut informed judgments about the  offense conduct.

Meanwhile, I suspect all would also agree that, short of some conclusive, comprehensive report about the shooter’s life history and mental issues, the  offender characteristics  surrounding the Batman mass murderer is going to take a long time to better understand and assess.

Certainly both offense conduct and offender characteristics must be considered in determining an appropriate sentence. But what is this “first-cut reaction?” 

On the one hand, Berman is a human being, and as such is as entitled to a visceral reaction to a tragedy as anyone else.  On the other hand, having established himself as an authority on sentencing, he stands on a platform of his own making as an expert voice on the subject.  Doug concludes:

Finally, I suspect all would agree that fair and fitting and effective punishments must give some weight to both offense conduct and offender characteristics.  But there is great disagreement as to how much weight to give to these factors AND whether and when some factors can and should overwhelm others.  Putting all this together, it is not at all surprising that some are eager to reach first-cut punishment assessments based on the Batman mass murder offense conduct, while others are eager to resist any such assessments based on the shooter’s mostly unknown offender characteristics.

Certainly, those who embrace the death penalty and those who do not are inclined to stand at the polar extremes of any debate on punishment, They will, in their never ending battle to vindicate their respective views, seize upon the arguments that support their positions. Nothing new here.

However, a “first cut reaction” that addresses only one of the two aspects of sentencing fails to illuminate anything. Regardless of the relative weight to be given the two components, it is impossible to offer any reasoned view when only one is known and the other wholly absent.  Doug appears to diminish the arguments of his commenters because of their failure to recognize both components, or because of their emphasis on one as opposed to the other. What about his “first cut reaction”?

What makes this particularly disturbing is that Doug’s blog, Sentencing Law & Policy, is largely a curator of sentencing cases and stories, with little by way of commentary or value added. The occasional adjective, “important,” “curious” or “notable,” being about as much insight as one gets.  Yet this time, Doug came out with guns blazing (as much as lawprofs have guns or blaze), and let lose with complete clarity his view:

In the immediate aftermath of these sorts of horrific mass killings, I find it so very hard to react with my head without also listening to my heart.  And in these kind of awful cases, my heart (or is it my gut) often suggests to me that ultimate punishment of death is the only one which feels fitting.  I suspect Colorado prosecutors (and perhaps also federal prosecutors) will have similar feelings.

It doesn’t get more clear than this: forget the cerebral and go with the gut. Kill him. Don’t think about it, just do it. This man needs killing.

There is little chance that Doug will address this criticism of his post, at least not here or directly, as he doesn’t care for the lack of civility and respect he’s shown here. I suspect he doesn’t like me, as I’m insufficiently deferential.  But his opinion still carries weight in matters that are of deep concern to criminal defense lawyers, and it would be wrong to ignore him (even if he ignores me).

A long-time theme of SJ as a law blog is that there is a responsibility not to make people stupider for having read something here, which I believe is true of all lawyers and lawprofs who publish commentary about the law, where others will read commentary and believe, whether warranted or not, that they reflect reliable and thoughtful ideas.  We are lawyers. People have a right to rely on our writings to reflect legally sound ideas.  Even more so when we hold ourselves out as singular experts in a specific niche.

Aside: And I submit that this duty carries over from the content of a post to the content of comments, whether by lawyers, non-lawyers or people who purport to offer “legal advice” or commentary but don’t appear to have any qualifications to do so. Readers can be easily misled into thinking that comments at a blawg are sufficiently reliable to act upon, to their enormous detriment. Too many blawgers absolve themselves of responsibility for ignorance spewed in comments to their posts.

Doug Berman offers a well-conceived explanation for the tenor of the comments to his post.  He would have done better to tell it to himself, and then own up to the mistake.  He may well feel the same after all the information is in, and both sentencing components can be properly weighed, but a credible expert only offers an opinion after he possesses the information necessary to make it. 

There is no exception for a “first cut reaction,” which concededly fails to take into account a fundamental component necessary to formulate a valid opinion.