The Death-Penalty Maze

Stuart Taylor, Jr.

When State’s Attorney Douglas Gansler stepped before a gaggle of microphones in suburban Montgomery County, Md., last Friday, officials watching TV downtown at the Department of Justice seethed. Gansler, an ambitious Democrat who stressed that "Montgomery County was the community most affected" by the killing spree, announced that "within the next few hours" he would file six first-degree-murder charges against suspects John Allen Muhammad and John Lee Malvo. The Feds had asked Gansler to wait

Montgomery County and the Feds aren’t the only ones staking a claim: prosecutors in Virginia counties and Alabama also want a crack at the case. The turf wars are mo…

Montgomery County and the Feds aren’t the only ones staking a claim: prosecutors in Virginia counties and Alabama also want a crack at the case. The turf wars are more than political wrangling. At the heart of the debate is the emotionally charged issue of the death penalty–and the even thornier question of juvenile executions. If the first, highly publicized trial doesn’t send one or both suspects to death row, it could disappoint a public eager for strong and swift justice.

Who gets the first trial may depend on who can make the most compelling case–and on who can best navigate the maze of death-penalty laws. Both Maryland and federal laws permit the death penalty, but only for adults. Maryland has put only three people to death since 1976. And the departing governor has imposed a moratorium on executions, though it could be lifted soon. Virginia, with 86 executions since 1976, and Alabama, with 23, both have stronger death-penalty credentials. They’re willing to send juveniles to the death chamber, making 17-year-old Malvo eligible, too. That could feed an ongoing debate over whether minors should be executed. Four of the more liberal Supreme Court justices recently denounced the practice as "shameful." And Congress and 28 states have already abolished the death penalty for juvenile crimes.

That could be one reason to let Montgomery County go first. Though the threat of execution could spur Malvo to give valuable evidence against Muhammad, abandoning that option could ease any qualms jurors might have about convicting young Malvo. Gansler has said he plans to seek execution for Muhammad.

Still, starting with Maryland is not a perfect solution. Some prosecutors say the state’s death penalty applies in multiple-murder cases only if they are committed at one time. Gansler argues that the spree of four murders over two and a half hours on Oct. 3 could count as a single incident. That issue, however, could pose problems in Maryland’s liberal appellate courts. Justice officials stress that federal court is the only place where all 13 sniper shootings could be prosecuted together.

But murder isn’t ordinarily a federal crime. The Feds would have to charge the suspects with attempted extortion of $10 million under the Hobbs Act–hardly as compelling to a jury as the killings themselves. "You really have to twist this to make this a federal case," says former deputy attorney general Eric Holder Jr. If the Feds did go first, a Virginia double-jeopardy law could bar state and federal trials for the same crime. And if Virginia or Alabama went first, each county could try only the single murder that occurred there–not as strong a case as Montgomery County’s six killings. The county, which bore the brunt of the snipers’ terror, also housed the massive investigation. Concerns about the death penalty shouldn’t keep Maryland from taking the case first.

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The Death-Penalty Maze