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a citizen’s journal by Thomas Nephew

The Muhammad/Malvo death penalty sweepstakes

Posted by Thomas Nephew on November 3rd, 2002

John Ashcroft is discovering a federal interest in prosecuting the snipers as a case of interstate extortion, because God knows he’ll get Muhammad and Malvo convicted, injected, and six feet under faster that way than anyone else can, one way or the other.

But Muhammad and Malvo should be tried for murders, not for a mere violation of the Hobbs Act. Were the two men put to death for “obstructing, delaying or affecting interstate commerce through robbery or extortion,” rather than for any of the many murders attributed to the pair so far, justice in this country would rightly be the scorned laughingstock of the world. More importantly, “justice” would ought to be patently untrustworthy to anyone in this country.

There’s no question the Hobbs act is applicable in some broad sense; the provable and likeliest true motive was extortion, the crimes crossed state lines. But there’s every question whether this federal statute should be applied. It’s likely even Ashcroft recognizes this; the true aim is quite different: by threatening to take the case out of state hands, Ashcroft and the Justice Department seek to deal Muhammad and Malvo to the state where the two can be sentenced and put to death as soon as possible.

And that, too, is a dishonorable goal. Even committed death penalty advocates should have no trouble seeing why: it cavalierly ignores the right of citizens of states or counties that administer the death penalty grudgingly or not at all, in favor of citizens where that penalty is handed out more enthusiastically. Yet there are good reasons to go slowly and carefully with a death penalty case — assuming of course you want to get an unassailable, just, correct verdict.

Maryland death penalty policy has equal weight and standing with Virginia, Alabama*, Louisiana, or Washington death penalty policy. No matter the missteps made during the investigation, the case is Maryland’s and Montgomery County’s first and foremost, both because the greatest number of victims were Marylanders, and because the task force that finally arrested the (alleged) perpetrators was led by Marylanders.** That this should even need to be argued is testimony to the hypocrisy of Bush’s and Ashcroft’s lip service to “federalism,” and perhaps to the scarcity of Republicans willing and able to hold them to that slogan.

This is not to say Virginia, Alabama, Louisiana, or Washington should not have their turn. It is to say that they should wait their turn. “Efficiency” in the pursuit of a death penalty is nowhere near the most important goal in this or any case.

There is a wider significance to the particular varieties of gamesmanship and manipulation on display around these murder cases. They are invited and encouraged by the blood lust for a death penalty, just as that lust invites bending any number of other “rules” set up to protect the innocent, the young, the retarded, the insane. My chief argument against the death penalty is that it virtually ensures the worst miscarriage of justice possible: the eventual execution of an innocent person. A secondary, but strong corollary is that it ensures that any number of guilty but “ineligible” persons will nevertheless be executed, as murderers are wrongly found just sane enough, just old enough, just mentally competent enough to suffer the death penalty.

The chief objective citizens need met in this case has been met: the likely perpetrators are behind bars, we are safe from them. The next objective will be justice. That objective emphatically does not require that Muhammad and Malvo die; the death penalty will assuredly lead to more miscarriages of justice than its absence will. If Muhammad and Malvo are found guilty, they shouldn’t see another free day in their lives. That is severe punishment, and it’s the most punishment citizens should allow their human, imperfect laws and legal system to threaten.

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*It will be a particular travesty if Alabama should be entrusted with the prosecution, given its incompetent, negligent investigation process in the Montgomery, Alabama slaying: fingerprints obtained in that case had not been matched to federally available Malvo prints until officials came knocking on Alabama’s doors weeks later, far too late for the sniper victims in Maryland and Virginia.

**For a similar view, see “Let Montgomery Lead,” a 10/31/2002 Washington Post editorial.

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