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This week, lawyers representing Nikolas Cruz, who pled guilty to killing seventeen Marjorie Stoneman Douglas High School students in February, 2018, were back in court, arguing that he should be sentenced to life in prison rather than the death penalty.
As many death penalty hearings do, their argument focuses on Cruz’s impaired mental and emotional condition, which results in part from his exposure to alcohol in utero, otherwise known as fetal alcohol syndrome (FAS). Reports on the trial that reference the decisions and life circumstances of his birth mother and Cruz’s his adoptive mother suggest that both women, now deceased, bear significant responsibility for Cruz’s failures in life, and his decision to attack his own school with a semi-automatic weapon.
Reading about this phase of Cruz’s trial took me back eighteen years. I spent the summer of 2004 reading about death penalty mitigation and the failed effort to spare the lives of convicted murderer Robert Alton Harris, and several other individuals diagnosed with FAS. In what became a chapter of my book Message in a Bottle: The Making of Fetal Alcohol Syndrome (2006), I analyzed how the diagnosis was used by experts in the courtroom, as well as attacks on the diagnosis as merely “an abuse excuse.”
That debate will be central to the battle between prosecution and defense in the Florida courtroom where the fate of Nikolas Cruz, now 24, will be determined.
Why is this kind of mitigation so important? In 2002, the U.S. Supreme Court ruling in Atkins v. Virginia found that the execution of intellectually impaired individuals violated the Eighth Amendment statute against cruel and unusual punishment, even though when you draw a line separating those who cannot be executed from those who can, by implication you leave the logic of the death penalty intact. This is a divide that does not exist in many other parts of the world. According to Amnesty International “At the end of 2021, more than two-thirds of the world’s countries had abolished the death penalty in law or practice.”
But there are other lines that will be explored in Cruz’s mitigation hearing as well. For example, one that appears to separate FAS from another diagnosis: fetal alcohol spectrum disorder (FASD). The former, according to the CDC, can be diagnosed by four clinical features: “selected facial malformations, growth retardation, Central Nervous System abnormalities, and maternal alcohol consumption during pregnancy.”
FASD is more elusive. It is diagnosed by looking at clusters of medical, behavioral, and social interaction, as well as knowledge of maternal alcohol use. Cruz’s legal team asserts that he has FASD, not FAS or a low enough IQ to prevent execution. But FASD is a diagnosis hard to prove in court: the effects of alcohol exposure in utero vary and are not easy to distinguish from other developmental conditions.
The argument won’t just be about a diagnosis, but the elusive evidence that leads to the assertion that that there was a reason, beyond Cruz’s control, that he committed a terrible crime. Because of this, moving a convicted murderer off death row or winning a sentence of life in prison rather than execution, involves a tremendous amount of research into an individual’s past.
When I read the histories of men on death row diagnosed with FAS I found their experiences were marred by much more than prenatal exposure to alcohol. The childhoods of those on death row whose trials I studied presented horrific details about neglect, malnutrition, and exposure to multiple toxic substances in utero along with instances of unimaginable physical and mental abuse.
But FAS isn’t always the main story, and it can obscure a more important feature of many murderers’ lives: neglect At critical moments and years of these now-convicted criminals’ lives, as I came to understand them, were the failures of welfare, health and educational systems that should have been helping, protecting, and supporting the most vulnerable among us. People who needed help—intervention, services, resources, did not get it. Systems meant to aid them failed, or could not do so, because of underfunding and bureaucratic eligibility rules that excluded them.
These systems, like the people they were meant to help, have been historically neglected. But in a democracy, that neglect is not just a failure of the state: it is also a social failure. We elect the people who fail to fund these systems, to oversee them, to improve them, and to make sure they are working. Death penalty appeals are indictments of us as a nation, of politicians we elect who are unable or unwilling to protect people who need support and help.
Yet many of these same politicians are always ready to protect the right of a damaged person like Nikolas Cruz to own a weapon.
If you follow this case—and you should–be prepared to read the details of Nikolas Cruz’s life, to hear about the systems that failed him, and to hear arguments about personal responsibility. You will be sucked into the American drama of executions, a kind of dance of death that stumbles from courtrooms to prisons to last meals, and last moments. I won’t be watching or reading along with you.
It’s exhausting, but necessary. My summer of research and writing left me so traumatized by the horrors of our nation’s acceptance of the death penalty that I can no longer read about those lives. It also left me in awe of the people who fight for justice, for an end to the death penalty, for better services for families and children.
These defense attorneys are the truth tellers. We must listen.
Janet Golden is History Professor Emerita at Rutgers University, Camden.