How the State Can Just Kill a Man

The trial of John Allen Muhammad is now wrapping up; the trial of Lee Boyd Malvo has begun. Both have been accused of driving around Maryland, D.C. and Virginia in a blue Caprice and shooting people with a Bushmaster last October in order to extort $10 million from metropolitan governments and the feds. Both are being tried in Virginia. Why Virginia, one might ask, when Andrew can barely turn around without seeing some reminder of the shootings in his suburban Maryland home? The feds set the order of prosecutions in a multi-jurisdiction case like this, Malvo was a minor at the time he allegedly participated in the shootings, and while both Virginia and Maryland have the death penalty, only in Virginia can the state kill young'uns. So the Ashcroft-led feds chose Virginia as prosecutorial ground zero.

The death penalty is one of those punishments that, once administered, you can't take back no matter how much you should, and the astonishing and distressing rate of errors in its administration, along with the general sense that our governments should not be in the business of killing people, has led me to oppose it. Almost all the time.

I had come to the conclusion that the death penalty should never be applied before Timothy McVeigh exploded a truck at a federal building in Oklahoma City, and yet I wanted the federal government to execute him. I wasn't eager for the prospect, but I thought it needed to be done. I considered why, and came up with these reasons:

1. It was a crime not specifically against citizens but against the state, committed with the intention of bending the state to his will.
2. The evidence presented to the jury and the nation proved nearly conclusively that McVeigh was guilty.
3. The crime involved the death of a lot of people — in fact, the crime was committed with the express intent of killing a lot of people, and the people who were killed were essentially interchangeable to the killer because the killer's object was simply mass death.

These criteria seemed to me to capture a specific type of crime not just against those people involved but against the state that seeks to protect them. It's at most one step below open warfare. To me, when a killer challenges the state in this way, the state should have the right to, after careful consideration of the facts of the matter, meet the killer's challenge with all the force it can bring to bear.

After McVeigh was executed, I hoped I would never see another case in which I wanted the death penalty applied. Well, here it is. John Allen Muhammad, meet my criteria. And I'm glad I developed those criteria before I started bowing my head every time I see a Ride-On Bus emblazoned with the words "In Memoriam Conrad Johnson" or drive past Kalmia Road or check the prices at the Kensington Shell station, because I wouldn't want to think that my position on this matter was influenced at all by how the snipers were all around all of us last October, dealing death.

Regardless of what I think about it, this decision means Muhammad probably has a date sometime with a Virginian needle full of pancuronium bromide. Next up, as noted above, is Malvo.

Any time the state goes out of its way to try to kill someone, you have to wonder about its motives, and regardless of what trigger-happy Virginians think, minors and adults should be treated differently by the law. While the same evidence that has proven, to me anyway, that Muhammad was one of the snipers will be used to prove that Malvo was the other one, there's something more to consider here. Malvo's defense team argues that he was brainwashed: his diet was restricted by Muhammad to crackers and honey, he was never allowed to leave Muhammad's sight, he was trained by Muhammad to kill, and he was taught in this dominated state that killing was right.

If Muhammad brainwashed Malvo as the defense plans to argue, then Malvo wasn't shooting civilians with the intent of challenging the state; he was shooting civilians with the intent of earning the favor of a madman who had taken Malvo away from everything else that could have given him worth. That's awful and horrifying and tragic, that a man may have done that to a boy. Nevertheless, Malvo must bear responsibility for his actions, just as we all should. But his actions weren't a crime against the state, and therefore to my mind the state should not kill him. Lock him up for a thousand lifetimes, but don't execute him.

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