Steven Day

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

Burning Our Cultural Bridges

Sometimes we’re just dumb.

Consider, for instance, the subject of visas. One of our goals in the war against terrorism is to “win the hearts and minds” of the “Arab street” and Muslims around the world. In other words, try to make them hate us a little less and perhaps even engender something akin to mutual respect. Then, hopefully, less of their young people will grow up wanting to achieve martyrdom by killing Americans.

So how do we go about this process of trying to ingratiate ourselves to young Muslims? Why, by insulting their cultural heroes, of course.

Take the shabby way our government treated Iranian film director Abbas Kiarostami, widely viewed as one of the greatest living filmmakers. Kiarostami was unable to attend the premier of his new movie, Ten, at the New York Film Festival, which began in late Sept., because he couldn’t get a visa to enter the U.S. in time.

His story is far from unique. Scores of artists and pop performers have fallen into this quagmire.

The difficulty grows out of the U.S. Enhanced Border Security and Visa Reform Act, signed into law by the president May 14. Under the act (and related regulations created by the Bush administration), citizens of nations designated as “state sponsors of terrorism” -- currently Iraq, Iran, Syria, Libya, North Korea, Sudan and Cuba -- are required to go through lengthy FBI and CIA background checks before receiving visas to enter the country. Citizens from 26 other undisclosed (but thought to be mostly Islamic) countries are subjected to a shorter mandatory waiting period.

Add to this the intensified scrutiny all visa applications are receiving in the aftermath of Sept. 11, and you have an obvious recipe for delay. The end result is that visas that once were issued in a few weeks can now take up to six months.

The idea, of course, is to prevent terrorists from entering the country, plainly a laudable goal. But the 62-year-old Kiarostami would seem an unlikely terrorist threat: An award-winning writer and director of 30 films, he has visited the U.S. seven times in the last 10 years. His 1997 film, Taste of Cherry, was the Palme D'Or winner at Cannes, and his latest film explores the lives of Iranian women living under an oppressive system. There was no indication he ever tried to blow up anything -- except, perhaps, a few cultural stereotypes.

And the snub wasn’t an oversight. Ines Aslan, a spokeswoman for the New York Film Festival, said festival organizers and others tried “very, very hard” to prevail on officials at the U.S. Embassy in Paris to make an exception for Kiarostami. Similar exceptions have been allowed in the past. But they hit a brick wall.

“It wasn’t that they could not make an exception,” she said. “It was that they did not choose to. It is very sad.”

Not surprisingly, this news wasn’t received well abroad. Jack Lang, a former French minister of education and culture, called it “intellectual isolationism and ... contempt for other cultures.” Aki Kaurismaki, a film director from Finland, boycotted the New York festival in protest. “If international cultural exchange is prevented,” he mused, “what is left? The exchange of arms?”

Other cultural figures who have been caught in the U.S. visa squeeze include Iranian pop diva Googoosh, who was forced to cancel a long scheduled concert, and 22 Cuban musicians prevented from attending the Latin Grammys; one of them, jazz pianist Chucho Valdes, won the Grammy for pop instrumental album.

One suspects that George W. Bush is no great lover of foreign language films, Persian pop music and Latin jazz. It probably doesn’t break his heart that cultural exchange, involving these and other art forms, has been hindered by the war on terrorism. But before he writes the whole thing off as soft-headed intellectual nonsense, he might want to talk to Norman Pattiz.

Pattiz is the creator of Radio Sawa, the U.S. government-sponsored Arabic-language broadcasting service. Broadcasting 24 hours a day, seven days a week since its debut in March 2002, Radio Sawa -- which means “Radio Together” in Arabic -- has been hugely successful in attracting listeners in its under-30 target audience. Ha'aretz reports that it is the most listened-to radio station among young people in Jordan's capital, Amman. While the broadcasts include news reports, its popularity is generally attributed to its multi-cultural musical programming that allows listeners to hear their favorite Arab and Western performers in the same broadcasts.

The hope is that the station will improve America’s image among young Arabs. While testifying before the Senate’s Committee on Foreign Relations in June, Pattiz said, “There’s a media war going on (in the Middle East) and the weapons of that war include disinformation, incitement to violence, hate radio, government censorship and journalistic self-censorship. And the U.S. didn’t have a horse in the race.”

Whether Radio Sawa will be successful in improving America’s standing with young Arabs remains to be seen. But the willingness of the U.S. government to fund it, to the tune of $35 million in fiscal year 2002, demonstrates an awareness of the power of pop culture to help bridge cultural divides.

So why then are we using visa delays to burn down those bridges? Why, when we’re spending good money to promote cultural understanding in the Middle East, are we deliberately undercutting those efforts by belittling their cultural icons? This is not the way to win the hearts of their youth.

Think of it this way: How would Americans respond if another country announced that Steven Spielberg or Bruce Springsteen would have to sit out an awards ceremony so that background checks could be completed to make sure they weren’t terrorists? Would we think that reasonable? Would we assume that no insult was intended against the United States?

What makes this all so sad, of course, is that the problem could be fixed with modest efforts. Developing a system that expedites visa requests from performing artists and similar cultural figures, perhaps combined with some form of grandfather clause for those who have visited here in the past and who have already undergone background checks, would be a snap. And it wouldn’t harm homeland security one iota. But so far, at least, our government has refused to budge.

In a statement released to the press, New York Film Festival director Richard Pena summed it up this way: “It’s a terrible sign of what’s happening in this country today that no one seems to realize or care about the kind of negative signal this sends out to the entire Muslim world (not to mention to everyone else).”

Like I said before, sometimes we’re just dumb.

Steven C. Day is an attorney practicing in Wichita, Kansas.

The Disturbing Sound of Silence

Is there ever a time when silence is the music of democracy? Not that I can imagine. In fact, I can't even think of a situation where a gentle lullaby or the sweet harmony of a string quartet could do it justice. Democracy is the stuff of rock 'n' roll -- loud and sometimes obnoxious -- screeching electric guitars, pounding drums and lyrics amplified to ear-splitting decibels. Freedom is about noise -- irreverent and raucous debate. Silence is the trademark of other forms of government, those that work in darkness and struggle to keep the will of the people hidden.

So when folks like Lynne Cheney, William Bennett and Meistersinger John Ashcroft tell us that it's our patriotic duty to stand in reverent silence for the duration of the War on Terrorism, I have to wonder if they've forgotten what country they live in. This isn't Iraq, North Korea or any of those other countries they want to blow the hell out of. This is the United States, where freedom of speech isn't just tolerated, it's considered part of our strength.

I've been at this business of trying to be a good citizen for some 46 years, and it still astonishes me how the very people who scream God Bless America the loudest are often the ones who seem to understand the least about what the country stands for. Didn't anyone explain to them the basic political values underlying our culture? Were they playing hooky when civics was taught? Do they assume that Thomas Jefferson, George Washington, John Adams and James Madison were conformists who never rocked the boat? That Congress and the states were just fooling when they adopted the Bill of Rights? Were they taught that Henry David Thoreau advocated marching to the sound of the same drummer? Or that Robert Frost penned that he took the road most traveled by?

Americans have a history of being cantankerous -- shouting objections, raising hell and generally making life miserable for those in power. And Cheney, Bennett, Ashcroft and the rest of their pack know this well. We know that they know it because that's precisely what they did, often far beyond the bounds of common decency, during Clinton's presidency.

But things are different today, they argue, because now we are at war. But once again their own history betrays their self-righteousness. Only a few years ago, many of these same GOP leaders freely criticized Bill Clinton over his handling of the war in Kosovo. One assumes they didn't consider themselves traitors for doing so. Then there's Michael Tomasky's priceless article in Salon, which establishes that less than two weeks after the attack on Pearl Harbor, Robert A. Taft, Mr. Republican himself, gave a speech that offered a stirring defense of wartime criticism as an act of patriotism.

Contrary to what Ari Fleischer said shortly after the terrorist attacks, this would be the worst possible time for Americans to decide they need to "watch what they say." There are too many important issues that need to debated freely and without fear of retribution. Here are just a few:

* Eighty-four years after the "war to end all wars," George W. Bush seems hell bent on starting a "war to end all peace" and our government is pursuing a nuclear arms policy that make Dr. Strangelove look like a sissy.

* We have a president who believes that the people's business is none of the people's business.

* We have an Attorney General who considers civil liberties to be an annoyance (and calico cats to be a sign of the devil).

* Our president is pushing for the adoption of a permanent wartime budget, which will neglect domestic needs while substantially increasing the already huge national debt we are so generously passing on to our children.

* Our national parks and wilderness areas are now under the stewardship of people who have never seen a tree they didn't think would look better as a stack of lumber, or a wilderness area that wouldn't look lovelier with a nice assortment of oil derricks.

* We are being led by people who honestly believe that the principal economic goal of the federal government should be to help rich people get richer.

* We have a president who also believes that Congress should stop bothering him while he's busy running the country.

* And by the way, all of this is being done by a president who didn't actually win the election.

How can anyone seriously argue that silence is the proper response for someone troubled by this state of affairs? Entering into a war, to name the most pressing issue -- especially a war as poorly defined as this one -- is the most serious step a society can take. It puts at risk the lives of our children and commits our nation's resources to the art of destruction, while more creative endeavors shrivel up and die from lack of nourishment. War can fundamentally change the character of a nation, often in ways no one even imagined going in. If freedom of speech doesn't apply here, when all the chips are on the table, then what good is it?

This is no time for silence. It's time to rock 'n' roll.