Special Report

Death Penalty Weasels

Why are death penalty opponents now willing to make an exception for the Sniper duo?

By 11.4.02

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Conventional wisdom says that if any crime deserves the death penalty, last month's sniper shooting spree in the Washington, D.C. area does. Ten were killed, three were wounded, and millions in the region were terrorized for three solid weeks. The calculated killings are so universally seen as horrendous that even long-time death penalty opponents are falling over each other to support the ultimate punishment should suspects John Allen Muhammad and John Lee Malvo be proven guilty in a court of law.

At the top of the list of death penalty hypocrites is Maryland Gov. Parris Glendening. Last May, he declared a moratorium on executions in his state as a commission studied whether the processes used in the courtroom have been "fair and impartial." But when asked recently about the snipers' crimes, Glendening rushed to judgment in support of the death penalty by saying, "When you have something this horrendous, it seems to me, that if there's no question whatsoever about the guilt, that this is the type of incident for which that legislation was written. But it will not in any way be deterred or impacted by that moratorium."

In his haste to board the capital punishment bandwagon, Glendening forgot to mention that, as a juvenile, John Lee Malvo is not eligible to be sentenced to death in Maryland. Nor did he point out that any death sentence for Muhammed would not be carried out for decades, if at all. Even before the moratorium was imposed, Maryland had executed just three killers in the past 26 years.

Senate candidate Frank Lautenberg of New Jersey has also done a spectacular flip-flop. A longtime opponent of capital punishment, Lautenberg was asked in a local TV interview last week if the two sniper suspects should receive the death penalty. Instead of strongly backing his prior position, Lautenberg answered that whatever penalty the jury saw fit to impose, that's the sentence that should be carried out. Now that's standing up for your convictions!

The Washington Post editorial board should be added to the weasel list, too. No fan of the death penalty -- the Post has editorialized that it can never be "sufficiently fair, just and error-free" -- the paper apparently couldn't bring itself to oppose capital punishment for the snipers outright. Although the Post couldn't resist using the sniper killings to slam the NRA, it did refrain from using the tragedy to editorialize against the death penalty. Two days after the suspects were taken into custody, the Post was relatively restrained, editorializing this way: "We certainly support a vigorous prosecution of the two alleged assailants, if the evidence holds up (though not the frenzy to subject an apparent juvenile to the death penalty)." In less than a week, the Post was up to its old tricks, publishing an editorial criticizing "death penalty enthusiasts" like Attorney General John Ashcroft for hurrying "to preempt judge and jury and provide for an execution … before there has been a trial."

The Post's hesitancy to get on the wrong side of the issue is understandable; its readers and reporters were directly affected by snipers' actions. But the Buffalo News? Inexplicably, that paper weighed in on Halloween with this editorial on the snipers: "If a death penalty is ever called for, surely it is for wretches such as these. For the record, this page opposes the death penalty, believing it to be impossible to implement fairly and with any certainty that only the guilty will be executed."

This position makes one long for the honest leftism of the New York Times. Although the Times did not publish an anti-death penalty editorial in the days following the arrests, it did print a column by Bob Herbert that used the attacks as a point of departure to discuss gun control. The Times also published an editorial and several letters to the editor opposing the prosecutors' jockeying for position and the fact that sentencing is playing a role in the decision as to which jurisdiction gets to try the suspects first.

Perhaps not wanting to appear too unbalanced, the Times gave some space to one David H. Kempner of Vernon Hills, Illinois. His letter about the sniper suspects said, "[W]hile I very rarely endorse the death penalty, because of the horror they allegedly inflicted, they fall into the very small group of those who, if convicted, would appear to have earned an execution." With this letter the Times got to have it both ways: the letter purported to back capital punishment for the snipers, but also said it should be rare and imposed on only a "small group" whose crimes have inflicted "horror."

Such a position is senseless. Aggravating factors are already required for death sentences; "ordinary" killings aren't enough nowadays to merit capital punishment. In fact, the Supreme Court has placed so many limitations on the death penalty over the years, it's a wonder that it is imposed at all.

Certainly, the snipers' killings were out of the ordinary due to the sheer number of people who feared for their lives. But the position of the death penalty hypocrites -- that capital punishment is so barbaric that it should be outlawed, except for cold-blooded killers as universally reviled as the snipers -- wrongly ties punishment to poll numbers. Capital punishment is either immoral, in which case it should be banned completely, or it's not. If it's not, then it should be applied judiciously to discourage murders and give some measure of justice to victims' families. That's what the aggravating factors currently in use do. We don't need to pile on more to make justice even harder to come by.

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About the Author

Tracy Robinson is a 2004 graduate of the George Mason University School of Law.