woody zimmermann 120A media controversy over capital punishment resurfaced in recent days after the State of Arkansas revealed its plans to execute eight convicted murderers over a period of two weeks – ostensibly to conclude these sentences while certain drugs used for execution by lethal-injection remain available. Judges have stayed some of the planned executions, but the state did conduct its first execution since 2005 by executing Ledell Lee, age 51, via lethal injection on April 21 for a murder he had committed in 1993. On the night of April 24, convicted murderers Marcel Williams and Jack Jones were also executed.

The Arkansas controversy has prompted me to repost a new edition of an article written for this column in 2003. It invites readers to examine this important social issue.

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In November 2003 the emotional memory of the October 2002 Sniper Shootings returned to Northern Virginia, and the politically charged issue of capital punishment came along. John Allen Muhammed, 42, was sentenced to death, on November 24, 2003, for killing Dean Harold Meyers, a 53-year-old veteran, on October 9, 2002, in Manassas, VA.

On December 24, 2002, Muhammed’s accomplice, Lee Boyd Malvo, 18, was sentenced to life imprisonment (without possibility of parole) for his part in the shooting of Linda Franklin, 47, in Fairfax County, VA, on October 14, 2002.

Malvo’s sentence means the vicious murder of an innocent woman – linked to the pair’s attempted extortion of $10 million from local governments – received something less than a full reckoning. The murder was premeditated and entirely unjustified. The jury rejected Malvo’s “temporary insanity” defense, but could not obtain the unanimous vote required for a capital sentence. Seven jurors voted for execution; five voted against.

Malvo and Muhammed are suspected of murdering ten people and wounding three others in Maryland and Virginia, plus a murder in Louisiana. Virginia prosecutors “separated” the crimes and the defendants to maximize the chance of obtaining a death sentence for each. Malvo will now be tried for his complicity in other shootings, in the hope that a capital sentence will result. If Virginia fails in this, Maryland and Louisiana will also try Malvo for murders there.

My neighbor wondered who could get the death penalty – and for what magnitude of crime – if Malvo could escape the hangman for participating in ten murders. He followed the public’s natural tendency to lump Malvo’s crimes together. But the other shootings could not be mentioned in his recent trial, as they are unproven charges and therefore inadmissible as “facts.” Malvo was tried only for the murder of Miss Franklin.

Jurors were bound to think the boyish-looking Malvo was drawn into the sniper-extortion plot by the influence of the older man, Muhammed. Also, Malvo’s sentencing came on Christmas week. Jurors in Chesapeake, VA – 200 miles from Fairfax, and thus untouched by the horrific killings that occurred far from their own community – mercifully spared the teen-aged defendant’s life. Somehow, his failure to spare Miss Franklin’s life escaped the notice of several jurors.

In today’s law enforcement “economy,” the murder of one person often does not warrant a capital sentence. What with the defendant’s youth, and the prosecution’s inability to label Miss Franklin’s murder as “heinous” or “vicious,” a non-capital sentence was a near certainty.

The “vicious” designation plays big in contemporary politics. In 2002, Maryland Lieutenant Governor Kathleen Kennedy Townsend – then running for governor – proclaimed her support for execution when the crime is a “vicious murder.” (She did not specify what such a crime looks like.) As a stylistic pose for Miss Townsend’s liberal political base, Gov. Parris Glendenning suspended executions in Maryland to ensure that capital sentences were “racially balanced.” (No doubt Marylanders slept more soundly knowing that this particular “balance” had been achieved.)

Well within my lifetime, every premeditated murder was considered, ipso facto, a vicious crime, and every convicted perpetrator of such a crime could expect to pay the maximum penalty. The 1924 “thrill killing” of 14-year-old Bobby Franks by brilliant college students Leopold and Leobb was sensational news, as was the kidnapping and murder of Charles Lindbergh’s infant son in 1932. Those who committed such crimes were sure candidates for execution. The murder of a lowly shopkeeper or even a vagrant meant The Chair (or Gas Chamber), for the convicted killer. The public had little sympathy for them.

An episode from the 1950s Untouchables TV series, starring Robert Stack as Eliot Ness, illustrated this perfectly. A gangster was hot for the wife of a dry-cleaning shop owner. When she refused him, he sewed blasting caps into a pair of pants and took them to the shop for hot-pressing. The pressing machine set off the caps and killed the owner. On apprehending the killer, Ness said, “You’ll get the Chair for this, Rocco…”

Things were like that well into my lifetime, but that’s long past. Now, we speak of murder in code. “Vicious (or heinous) murder means –

  • The murder of someone “important” (e.g., a policeman, a judge, a mother of small children, students in a school, a politician, etc.);
  • Or crimes with many victims (168 killed in the 1995 Oklahoma City bombing);
  • Or particularly gruesome murders (e.g., that ghoul who chopped up numerous young victims and buried them under his house).

Just blasting a shopkeeper or stabbing a businessman doesn’t qualify as “vicious” because the victims aren’t important enough or the violence isn’t grisly enough. If you’re not on the A-list of victims, your killer will be watching The Days of Our Lives and The Godfather long after you’re in the ground.

Depending on a state’s laws and a jury’s inclinations, a murder designated as “vicious” might be punished by execution or life imprisonment without possibility of parole. But the latter is a suspect sentence. Clarence Darrow got Leopold and Leobb off with that penalty for the torture and senseless murder of an innocent 14-year-old boy. Leobb died in prison, but Leopold was released after serving 33 years. No one was left to protest the undoing of his sentence by parties unacquainted with the crime’s shocking context.

For “lesser” murders, capital sentences are rare. Often the killer is paroled after serving a few years for a lesser charge. If he shows little remorse, he might get “life” – euphemistically named, since it seldom plays out as an actual life sentence. Fifty years ago Washington, DC, had a handful of murders each year – all highly publicized. Now we average a killing every other day – most of them barely noticed. It’s not difficult to see what caused the difference.

What is the violent, unlawful taking of a life, if not a “vicious” crime? Can there really be a non-vicious first-degree murder? Of course not – the idea is absurd. Every premeditated murder is a heinous act. A human life has been taken with “malice aforethought,” but it doesn’t seem to move us unless it fits the fashionable definition of “heinous.”

Nor is the style of the killing a meaningful distinction. Whether slain by poison, knife, strangulation, automobile or firearm, the victim ends up just as dead. Miss Franklin might not have suffered or felt anything when she was struck, but her murder was still a vicious act against her person, her family, and all of civilized society.

Whether execution is an appropriate punishment can be honestly debated. But the legalistic hair-splitting – over victim-importance, or the murderers’ methods, or the apparent cruelty with which the crime was committed, or the race of either victims or criminals – must stop. Juries and judges must apply one standard of punishment. Anything else leads to chaos and injustice.

The jury-trial system has had a tough run in recent years. Absurd verdicts fill the news. A jury acquitted O. J. Simpson – despite much evidence of his guilt – because the defense attorney was a fast-talking showman and because an investigating police officer had made racist remarks earlier in his career. Another jury awarded a woman $500,000 because she was scalded by hot coffee from a paper cup she had placed between her legs while she was driving. (Talk about hot buns!)

Every week we read of some past verdict overturned by new evidence. Often it is DNA-evidence analyzed by technology which did not exist when the crime was committed. Five men, convicted of the notorious 1988 Central Park assault and rape of a young woman, were released in 2003 because another man confessed to the crime. DNA evidence corroborated his confession. The wrongly accused men had served 15 years. The prosecution made a mistake, and a jury dutifully convicted the wrong people on the basis of incomplete evidence and wrong arguments.

These cases do not produce a warm, cozy feeling about jury verdicts. On one hand, juries convict on evidence later shown to be wrong. On the other hand, a jury spares the life of a young murderer – i.e., Malvo – who laughed about how “surprised” his victims looked when he shot them.

Wags have always said that politics resembles sausage-making, and that you shouldn’t watch it unless you have a strong stomach. That probably goes for trials, too. Any human system is bound to be imperfect, so perhaps we shouldn’t get too worked up about occasional errors that come to light. Would no justice-system at all be better?

Nevertheless, the Malvo case, as a new legal benchmark, is troubling. Clearly, Malvo was guilty of the crime he was charged with. He was mentally responsible, unrepentant and aloof from his trial. Men of lesser callousness have been executed for their crimes. Surely, Malvo should be, too. Yet a jury of Virginians could not deliver a capital verdict for Linda Franklin’s unrepentant killer who terrorized their state for two weeks in 2002.

A female juror later said she voted for life imprisonment because she wanted Malvo to think – every day of the 60 or 70 years he’ll be in prison – “…about the pain he has caused these poor families.” Good luck with that. Did she think Malvo would be wearing a ball and chain and breaking rocks at hard labor? He won’t be. He’ll be warm and well-fed, reading in the prison library, playing basketball, watching TV, and filing appeals for a new trial on grounds that he was a victim of racism. More to the point, he’ll be alive – not moldering in the grave like his long-forgotten victims.

Whatever ails criminal justice, we need to slap it around and bring it to its senses. It’s affecting our society in important ways – most of them not good. One of those ways is the erosion of personal security – especially for children. As a boy, in the late 1940s, I played outside with my friends all day long. We roamed, unsupervised, all over our semi-rural suburb. (I was under orders to come home when the sun started setting.) My mother gave my whereabouts and safety nary a thought. My wife and I raised our boys similarly. They had enormous freedom.

Today, no responsible parent would consider allowing this. Our communities are far more dangerous places than they once were. A many-fold increase in murders, victim-stratification, uneven punishments, acquittals on technicalities, and release of inmates from mental institutions are why.

Malvo’s escape from the hangman only adds to these concerns. I’m sorry to see a young man’s life wasted, but I’m far sorrier about the lives he wasted without pity or concern. His death – if he ever receives that sentence – will not bring his victims back from the dead, but it will bring their families back from the dead, give them closure, and let them (and us) move forward with the assurance that justice has been done.

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Post Scripts:

[A] On March 1, 2005, the U. S. Supreme Court ruled – in Roper v. Simmons – that imposing a capital sentence on any person who committed a crime while younger than age 18 amounts to “cruel and unusual” punishment, which the Constitution prohibits. The ruling permanently shielded Lee Boyd Malvo from receiving the death penalty for any of the murders he committed in the fall of 2002, when he was 17. Today, at age 32, he continues to serve out his first of six consecutive life sentences at Red Onion State Prison near Pound, Virginia.

[B] John Allen Muhammad was executed by lethal injection at Virginia’s Greenville Correctional Center in Jarratt, Virginia, on November 10, 2009. Appeals to stay the sentence were rejected by the U. S. Supreme Court and Virginia Governor Tim Kaine.

[C] Nathan Freudenthal Leopold, Jr. – one of the pair who kidnapped and killed Bobby Franks in 1924 – was imprisoned in Illinois for 33 years, until 1958. After being paroled, he did social service work in Puerto Rico, including medical research on leprosy. He died of a diabetes-related heart attack in 1971, at age 67. (Leopold’s middle name, Freudenthal, is a German word meaning “valley of joy.”)