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.

But in 1976 capital punishment came roaring back to life, which raises the question: Why does America cling so tenaciously to the death penalty when Europe so strongly opposes it? Not only will no member of the European Union extradite a suspect to the United States who could potentially face the death penalty, but Germany, consistent with the mandates of its constitution, has gone so far as to refuse to even provide evidence to U.S. authorities for use in the prosecution of accused terrorist Zacarias Moussaoui, because the death penalty is being sought in his case. Similar policies have been adopted by many non-European nations.

There are many factors that play into America's infatuation with capital vengeance. Commonly mentioned suspects include Hollywood's romanticized depiction of violent retribution as part of our Wild West heritage, the culture of violence that has grown up around our national love affair with firearms, and the highly sensational media coverage given to high-profile crimes. Yet the biggest reason for the success of the death penalty may be good old-fashioned racism. There is little doubt that if this were a more racially homogeneous country, capital punishment would have gone the way of the dodo bird 30 years ago.

No one with knowledge on the subject can deny that race has played a role in the application of capital punishment: Study after study has proven its disproportionate use against minorities. And, yes, many white people have also been executed. But that doesn't change the fact that the death penalty remains predominately something that whites impose on blacks.

The sniper case is the exception. The death penalty, in all probability, would be just as much in play if the suspects were white. But that's a testament to how awful the crimes were and the public outcry that resulted, not to the fairness of the system. In the less sensational murder cases, it's often a different story.

Over the years, support for capital punishment proved to be the perfect stealth technique for exploiting racial fears for political gain. Sometimes the racial elephant in the room is painfully obvious, like when a political advertisement flashes the mugshot of a black offender on the screen at the same moment the candidate pledges to vigorously support the death penalty. At other times the pitch is more subtle. But when capital punishment becomes one of the biggest issues in a campaign, you can take it to the bank that it's race that's really being discussed.

As the death penalty's popularity soared throughout the 1980s and 1990s, many of the poll-hugging "New Democrats" jumped onto the band wagon, leaving very few political leaders willing to oppose the practice. Given this, it's not surprising that support for capital punishment of convicted murderers remains high in this country (72 percent are in favor, according to Gallup polls) despite the fact that more than 100 death-row inmates have been exonerated since 1973.

The sniper case is, unfortunately, likely to make it even more popular. This is just the sort of case death penalty enthusiasts live for. Never mind that the extreme facts serve to distort the debate, which in turn can distort the law that will apply in future, less egregious cases.

Last month, the Supreme Court, by a vote of 5-4, declined to hear a capital murder case involving a death row inmate who was 17 when he committed the crime. Justice John Paul Stevens, one of the dissenters, wrote that the use of the death penalty for 16- and 17-year-olds "is a relic of the past and is inconsistent with evolving standards of decency in a civilized society."

After the arrest of Malvo, voices against the death penalty have been drowned out by those clamoring to put the snipers to death, age be damned. Clearly the United States is destined to remain a world leader when it comes to capital punishment. Perhaps we should ask ourselves whether that's an honor we really want.

Steven C. Day, an attorney in Wichita, Kansas, is a contributing writer to PopPolitics.com.

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