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For James Holmes, Death Penalty is Far from a Certainty

James Holmes, the man charged in the Colorado shootings at the "Dark Knight" premiere, appeared in court for the first time Monday. Many observers said he looked confused and out of it.

It was a quick appearance and now bigger decisions await. Whether Holmes will face the death penalty is not expected to be decided for another several weeks or months, reports Yahoo!

While Colorado still has the death penalty, it will be interesting to see if Holmes will face it. The death penalty is rarely used in Colorado. Only one inmate has been executed since 1977, and only three inmates are on death row, says Yahoo! However, given the magnitude of Holmes' alleged crimes, it would seem capital punishment may be appropriate if convicted.

Generally, if someone is convicted of murder in the first degree in Colorado, that person faces either life imprisonment or the death penalty. At a separate sentencing hearing, a jury then determines if there are any aggravating factors that justify the death penalty or if there are mitigating factors that justify life imprisonment.

Typically, aggravating factors that favor the death penalty can include the defendant having a previous record of violent felonies, killing a police officer, killing by use of a bomb, especially cruel crimes, killing two or more people, and killing a child.

Mitigating factors that would favor life imprisonment can include the defendant's mind state (even if it doesn't reach the level of insanity as a defense to prosecution), unusual and substantial stress or duress, emotional state of the defendant, the defendant's clean criminal record.

James Holmes' case is unusual as there are so many aggravating factors that would favor the death penalty, and yet there are many mitigating factors that would favor life imprisonment. The key to Holmes' defense for both the crime and sentencing appears to be his mental health.

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