If John Lee Malvo and John Allen Muhammad deserve to die, does
it matter how they get the death penalty? I think it does, and so should
anyone who values the rule of law.
A Fairfax County, Virginia, grand jury recently indicted Malvo
(under his given name, Lee Boyd Malvo) for the Oct. 14 murder of Linda
Franklin at the Home Depot store in Falls Church. Police say Franklin's
killing was part of a shooting spree by Malvo and Muhammad that left 13
people dead and five wounded in five states and the District of Columbia.
Malvo, like Muhammad, is charged with committing more than one
murder in a three-year period and committing murder as an act of terrorism.
Both charges carry the death penalty, but the serial murder statute requires
prosecutors to prove that a particular defendant actually pulled the
trigger, which may be tricky.
The terrorism statute has no such requirement. The problem is
that Malvo and Muhammad do not seem to be terrorists, although just about
everyone who wants to see them executed is pretending that they are.
Virginia's terrorism statute was passed last year in response to
the Sept. 11 attacks. It defines terrorism as a crime committed with "the
intent to intimidate or coerce a civilian population or influence the
policy, conduct or activities of the government . . . through intimidation
Prosecutors say the law covers Malvo and Muhammad because their
shootings intimidated the public. That interpretation can be reconciled with
the literal meaning of the statute, but it makes little sense in light of
the law's goals and the impetus for passing it.
People in the D.C. area certainly were intimidated last fall as
the random shootings continued and police seemed to have no clue about who
was responsible. Residents of Maryland and Northern Virginia worried about
sending their kids to school, about crossing the parking lot at the grocery
store, even about stopping for gas.
Generating this sort of fear presumably was one of the shooters'
goals. Yet the same could be said of any criminal who gets a kick out of
scaring his potential victims. If Malvo and Muhammad are terrorists, so was
Ted Bundy. As University of Richmond law professor Ronald Bacigal told the
Associated Press last fall, "You could argue that anybody going on a crime
spree could be intimidating the population."
To bolster their case, prosecutors cite notes and phone calls
demanding $10 million as the price for stopping the shootings. "In essence,"
argues Fairfax County Commonwealth's Attorney Robert Horan, "they said that
if you want us to stop killing people, give us the money."
Hence Malvo and Muhammad tried to "influence" the government's
conduct by getting it to pay them. This interpretation, too, covers a lot of
territory: kidnapping a public official for ransom, robbing a government
office, threatening an IRS agent to stop him from auditing you.
All these could be described as crimes aimed at influencing the
government's actions through coercion or intimidation. Does that make them
When they passed this statute, legislators were not
contemplating terror as an end in itself or financially motivated crimes
involving the government. They had in mind terror tied to a political cause,
the special dangers of which had just recently been brought home to them in
a way that no one could miss.
"We envisioned Osama bin Laden," concedes state Del. David Albo,
the law's main sponsor. Indeed, the reason the law does not require proof
that a defendant directly carried out the crime is that legislators wanted
it to cover leaders of terrorist organizations.
Yet Albo insists the law's definition of terrorism "fit the
sniper case like a glove." He must be thinking of a one-size-fits-all glove.
Horan likewise protests too much. "If (the extortion scheme)
does not fit within the terrorism statute," he says, "then there can never
be a case that does." What if anti-American hijackers flew an airplane into
a government building? That might fit a little better.
I am not suggesting that only terrorism merits the death
penalty. But if the Virginia legislature wants to make it easier to execute
other kinds of murderers, it should pass a law doing so explicitly. That is
what the rule of law requires: crimes and penalties clearly defined in
advance. Then there is no need to twist a statute to cover a case for which
it plainly was not intended.