American Style Justice

A lusty sense of vengefulness is hanging over America. Simply put: We're ready to kill.

We're ready to kill accused sniper John Allen Muhammad. And, while we're at it, we'll kill his teenage companion and apparent co-conspirator, John Lee Malvo, too. In fact, we're ready to do much more than kill: We want to make them suffer first. Just tune into talk radio or turn on the TV and you'll hear numerous suggestions for retaliation -- from both the legal "experts" and the public -- that essentially boil down to this: Torture them, then leave the bodies for the wolves.

The sniper shootings were crimes of extraordinary brutality. Not only were the attacks vicious beyond comprehension, but the perpetrators succeeded in terrorizing an entire region. But still the question remains: What's behind our quest for primordial revenge?

Following an embarrassing struggle among the various jurisdictions involved, Attorney General John Ashcroft has now awarded Virginia the bragging rights for the first trial -- despite the fact that Maryland would seem the more logical choice since more of the shootings happened there. But Maryland, like the federal government and many other states, doesn't permit the execution of killers who were minors at the time of their crimes. This means 17-year-old Malvo would not be subject to the death penalty, and Ashcroft wasn't about to let that happen. (Never mind that the only countries in the world, aside from the United States, that have used the death penalty against juveniles since 1985 are Iraq, Iran, Bangladesh, Nigeria, Pakistan, Saudi Arabia and Yemen. At least Saddam Hussein is on our side.)

Besides, Maryland has a troubling history of acting slowly and with deliberation in applying the death penalty -- you know, all that due process stuff. Virginia, on the other hand -- which proudly sports the second highest kill rate in the country, second only to George W. Bush's Texas -- has the process streamlined to a tee; its motto could be, "Vengeance delayed is vengeance denied."

Criminal law is supposed to be about justice, not revenge. As Francis Bacon said, "Revenge is a kind of wild justice, which the more a man's nature runs to, the more ought law weed it out." Thus, even when authorizing the use of the death penalty, judges and legislatures traditionally have been careful to justify its use on other grounds, such as the notion that capital punishment deters violent crime (no matter that this has been discredited). For the most part, however, they don't bother with such excuses today. We seem to have reached the point where revenge is considered justification enough to kill -- no additional gloss needed.

Particularly troubling is how exclusively American a phenomenon it is. Among Western democracies, the United States stands alone in its use of the death penalty for myriad crimes, though that wasn't always the case. A few hundred years ago, for example, the common law in England authorized the death penalty for more than 200 crimes, many of them quite minor. It was possible for a starving man to be sentenced to death for stealing food. But the law in Great Britain grew up. Over the years, capital punishment was dropped for one crime after another, until it was finally abolished for murder in 1965. (It remained on the books solely for military wartime offenses until 1998, though the last execution there was in 1964.)

For a while, the United States kept pace, and there was every reason to believe it would soon follow suit in abolishing the practice. The execution rate dropped drastically in the 1960s, due in part to various legal challenges and lack of public support, and an unofficial 10-year moratorium on executions began in 1967. In 1972, the Supreme Court, in Furman v. Georgia, voided all existing state death penalty statutes, thus suspending the death penalty.