A Very Popular Penalty

Not all Americans approve of the death penalty, but apparently most of them do. Prosecuting attorneys, state and federal, score points by showing their zeal for it, as they did when it was announced that the two alleged snipers who terrorized the Washington area—John Allen Muhammad and John Lee Malvo—had been apprehended. In the tussle for jurisdiction that followed between Virginia and Maryland, a Justice Department official assured the public that getting the death penalty would be “a major factor in deciding where to hold the trial.” When a Maryland prosecutor was the first to file charges, Virginians asserted their claim for jurisdiction on the ground that Maryland did not execute minors, the suspect Malvo being only seventeen. In Virginia, by contrast, Muhammad and Malvo “would both be eligible for the death penalty.”

Moreover, while Maryland had conducted a mere three executions since 1976, Virginia could boast of eighty-seven. Maryland countered by sending agents as far as Jamaica to turn up evidence that Malvo was actually eighteen, in which case “Maryland could seek the death penalty against him as well.” The United States Department of Justice got into the act by proposing to try the case as a violation of a federal statute against extortion, but relinquished control in favor of Virginia where, John Ashcroft was pleased to say, “the likelihood of obtaining death sentences was greatest.”

If anyone has ever deserved to die for his crimes, Muhammad and Malvo do. But in the words of Clint Eastwood as he shot Gene Hackman to death in Unforgiven, “deserve’s got nuthin’ to do with it.” Politics and culture have everything to do with it. And as Stuart Banner points out in this remarkable book, support for capital punishment has become an identifying tag for zeal against criminals. To oppose executing murderers and other hard-core felons is to be soft on crime. That sentiment has not been checked by the many recent instances where credible new confessions and DNA testing have proved that persons already sentenced to death were innocent of the crimes for which they were convicted.

In Banner’s careful assessment of various polls it is apparent “that a large majority of Americans still supported capital punishment even on the assumption that a tenth of those condemned had committed no crime.” The scramble of state prosecutors for jurisdiction in the sniper case was a race to scoop the credit for general toughness on crime that death sentences would confer. Toughness on crime wins votes in a political system where prosecutors and judges, not to mention senators, congressmen, governors, and presidents, have to run for office. As the presidential primaries approach, Democratic aspirants hasten to assure the public that they, too, believe in killing killers, as if presidents of the United States could play any significant role in the outcomes of state criminal proceedings.

It was not always so, as Banner demonstrates. In the nineteenth and early twentieth centuries Americans led the way against capital punishment. Before the …

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