woody zimmermann 120The emotional memory of the October 2002 Sniper Shootings in the DC suburbs – which my Northern Virginia neighbors and I lived through – came back to me recently, along with the politically charged issue of capital punishment, when I reread an article that recalled those events. After terrorizing the area with a two-week spree that killed ten people in Maryland and Virginia, John Allen Muhammed, 42, and his accomplice, Lee Boyd Malvo, 18, were arrested in the dead of night, while sleeping in their car at a rest stop off Interstate 70, near Myersville, Maryland.

Muhammed was sentenced to death in November 2003 for killing Dean Harold Meyers, a 53-year-old veteran, on October 9, 2002, in Manassas, VA. Following Muhammed’s sentencing, his accomplice, Malvo, 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.

Muhammed was executed by lethal injection in Jarratt, Virginia, on November 10, 2009 – thereby achieving some closure for the pair’s rampage. But Malvo’s sentence meant that the vicious murder of an innocent woman – a part of his (and Muhammed’s) attempted extortion of $10 million from local governments – received something less than a full reckoning. The jury rejected Malvo’s “temporary insanity” defense and convicted him of first degree murder, but could not achieve the unanimous vote required for a capital sentence. Seven jurors voted for execution, while five voted against.

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Lee Boyd Malvo and John Allen Muhammed (2003)

Malvo and Muhammed were suspected of murdering ten people and wounding three others in Maryland and Virginia, plus an earlier murder in Louisiana. Virginia prosecutors “separated” the crimes and the defendants in order to maximize the chance of obtaining a death sentence for each one. Virginia prosecutors planned to try Malvo for other shootings, in the hope of obtaining a capital sentence. Maryland and Louisiana also intended to try Malvo for murders there. But the US Supreme Court scotched those plans in 2005 by ruling that execution of offenders who were younger than 18 at the time of their crimes amounted to “cruel and unusual” punishment, and was therefore unconstitutional. Lee Boyd Malvo had cheated the hangman. He is currently serving multiple life sentences in a supermax state prison in Red Onion, Virginia.

My neighbor wondered who could get the death penalty, and for what magnitude of crime, if Malvo could escape the hangman for complicity in ten murders. His observation followed the public’s natural tendency to lump Malvo’s apparent crimes together. But the other shootings could not be mentioned in his Virginia trial, as they were unproven and therefore inadmissible as “facts” in a legal proceeding. Malvo was tried only for the murder of Ms. Franklin.

Jurors undoubtedly believed that the boyish-looking Malvo was drawn into the sniper-extortion by the influence of the older man, Muhammed. Also, Malvo’s sentencing came on Christmas week in 2003. Jurors in Chesapeake, VA – 200 miles from Fairfax and relatively untouched by killings that occurred far from their own community – mercifully spared the young defendant’s life. Somehow, his failure to spare Ms. 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 Ms. Franklin’s murder as “heinous” or “vicious,” a less-than-capital sentence was a near certainty.

The “vicious murder” designation has played big, politically. 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 Ms. Townsend’s far-left political base, Gov. Parris Glendenning suspended executions to ensure that capital sentences were “racially balanced.”

Well within my lifetime, every premeditated murder was considered a vicious crime, and every convicted perpetrator of such a crime could expect to pay the maximum penalty, unless mitigating circumstances were in play. The murder of a lowly shopkeeper or even a vagrant meant The Chair (or Gas Chamber) for the killer. It was sensational news – as in the Leopold-Leobb case of 1924 – when a cold-blooded killer evaded a sure date with the Hangman.

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Nathan Leopold and Richard Leobb (1924)

All that is long past. Now we speak of Murder-1 in code. “Vicious murder” means the murder of someone “important” – e.g., a policeman, a judge, a politician, a mother of small children, kids in a school. A “heinous crime” can mean: multiple victims (e.g., Timothy McVeigh in Oklahoma City); or particularly gruesome murders (e.g., that ghoul who chopped up numerous young victims and buried them under his house). Blasting some shopkeeper or stabbing a businessman doesn’t usually qualify as “vicious” because the victims are not deemed important enough or the violence isn’t grisly enough.

A “vicious” murderer might get execution or life imprisonment without possibility of parole – although the latter is a suspect sentence. Leopold and Leobb got that sentence for the torture and “thrill-killing” of an innocent 14-year-old boy. Leobb died in a 1936 prison riot, but Leopold was released after serving 37 years. No one remained to protest the undoing of his sentence by parties who lacked contact with the crime’s shocking context.

For “lesser” murders, capital sentences are rare. Usually, a term of imprisonment is followed by parole. If the killer shows little remorse, he might get “life imprisonment” – euphemistically named, since it seldom plays out as a life sentence.

In the 1940s Washington, DC, had a handful of murders each year – all highly publicized. In recent years DC averaged one killing a day – most hardly noticed. New York City went from fifty murders a year, in the ‘40s, to a high of 2,245 in 1991. 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 crime. A human life has been taken with “malice aforethought,” and there is no way to make restitution. It is an uncorrectable crime.

Nor is the style of the killing a meaningful distinction. Whether slain by poison, knife, or firearm, the victim ends up just as dead. Although Ms. Franklin might not have suffered or felt anything, 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. All else leads to chaos and injustice.

The jury-trial system has had a tough run over the last half-century. 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 policeman 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.

Every week we read of some past verdict overturned by new evidence – often, DNA. Five men convicted of the notorious 1988 Central Park assault and rape of a young woman were released 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.

This does not give one 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 dead.

Wags have always said that politics and trials resemble sausage-making, and that you shouldn’t watch them unless you have a strong stomach. That’s probably true. Any system is bound to be imperfect, so perhaps we shouldn’t get too excited by occasional errors that come to light.

Nevertheless, the Malvo case, as a new legal benchmark, is troubling. Malvo was clearly guilty of the crime he was charged with. He was mentally responsible, unrepentant and aloof from the proceedings. Men have been executed for crimes of lesser callousness. Surely, Malvo should have been, 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 the fall of 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? He won’t be. He’ll be warm and well-fed, reading in the prison library, playing basketball, watching TV. And he will be alive – not moldering in the grave like his 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 such way is erosion of personal security. As a boy, in the late ‘40s, I played outside with my friends all day long. We roamed, unsupervised, all over our semi-rural neighborhood. (I was under orders to come home when the setting sun reached a certain copse of trees.) My mother gave my whereabouts and safety nary a thought. My wife and I raised our boys similarly. They had enormous freedom.

Today, no 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 the reason. And in recent years an uncontrolled influx of illegal immigrants – including some with violent proclivities – has added a wild card to citizen-endangerment.

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 much sorrier about the lives he wasted without pity or concern. His death would not have brought his victims back from the dead, but it could have brought their families back from the dead, given them closure, and let them (and all of us) move forward with the assurance that justice had been done. He and others like him must be held accountable.