SENTENCING THE SERIAL SNIPERS: Options For Their Prosecution And Possible Execution, And The Issue Of Whether They Are "Terrorists"

Not surprisingly, the posturing already has begun as to which jurisdiction will get to prosecute - and possibly execute - them first. And the debate has already begun as to whether the two are alleged to be "terrorists" or simply murderers who terrorized many as a result of their killing spree.

These two conflicts have yet to play themselves out fully, but two things are clear. First, even though Virginia - a top death penalty state and one that executes minors - may be one of the states to prosecute the pair, executing them there may not be as easy as it seems.

Second, it would be a mistake for authorities to characterize these acts, terrible as they were, as "terrorism." That definition should be reserved for politically-motivated atrocities; these atrocities, at least so far, seem to have been motivated only by ego and selfish desires.

Will Maryland Win the Race To Prosecute?

At least five jurisdictions now are laying claim to the sniper pair. Four of them have the death penalty. Two have the death penalty for minors who are 17 - Malvo's yet-to-be-confirmed age. Maryland - the state where it now seems that charges will go forward - is not one of them.

Here is the specific rundown of the five: Alabama (one dead, one injured; minimum age for death penalty is 16); the District of Columbia (one dead; no death penalty); Maryland (six dead, one injured; minimum age for death penalty is 18); Virginia (three dead, two injured; minimum age for death penalty is 16); and the federal government (minimum age for death penalty is 18).

The federal government has jurisdiction because the alleged snipers' killing spree is claimed to have crossed state lines while they were attempting to extort money in the process, which is a violation of the Mann Act. Although the federal government filed firearms charges against the pair immediately after their arrest, they did so only in order to detain them. The ultimate federal charges, of course, will be far more severe.

Alabama, not the federal government, was the first to file capital murder charges against the pair. Nevertheless, Maryland unilaterally has decided to prosecute the snipers first.

Maryland has some case for moving first: after all, a majority of the 11 murder victims died there. But its decision has caused much consternation to the federal government and perhaps the other jurisdictions involved.

Why does the federal government dislike the idea of a Maryland prosecution - especially given that the State has announced its intention to seek death for both alleged offenders?

One reason may be that there is currently a moratorium on the death penalty in Maryland. Another may be that, even putting the moratorium issue aside, the state rarely executes death-eligible, or even death-sentenced, inmates. Yet a third reason for the federal government's disapproval may be that if Malvo turns out to be 17, he would be ineligible for the death penalty under Maryland law, as noted above.

In contrast, Virginia can be expected to execute death-sentenced offenders, including juveniles, like Malvo. Virginia is second only to Texas in carrying out executions. Moreover, its law allows the execution of juvenile offenders as young as 16.

So, as odd as this may sound, it may be the case that the federal government would rather have Virginia prosecute the pair, because of its laws and execution rate, than Maryland.

The Double Jeopardy Clause Does Not Prevent Multiple Prosecutions

In order to preserve this option, Virginia is asking the federal government to refrain from prosecuting the snipers first. Such a prosecution would not violate the Constitution's Double Jeopardy Clause, because Virginia and the U.S. are separate sovereigns. (The Double Jeopardy Clause applies only to successive prosecutions by a single sovereign.)

But a successive prosecution would violate a Virginia statute. Under Virginia law, a prior federal prosecution would preclude Virginia from subsequently prosecuting the snipers, while the converse is not true for the feds.

Neither the Constitution nor any law prevents the feds from sitting sit back and letting the states take the lead. Later, if they are unhappy with the outcome, the feds could prosecute the snipers themselves. (Recall, for example, the subsequent federal prosecution of the Rodney King police officers on federal civil rights charges.) Under federal law, they, like Virginia, also could seek the death penalty - though not for a 17-year-old Malvo.

Still, although this is legally possible, the feds have a policy against doing it in some cases. Their rule is that after a state prosecution has been brought, a successive federal prosecution for the exact same offense may only be brought in order to "vindicate substantial federal interests."

In all events, regardless of which state ultimately prosecutes the pair first, the Double Jeopardy clause does not prevent the other states involved from subsequently prosecuting the snipers for the murders that took place in their respective states. In theory, then, the snipers could be prosecuted up to five times for their various crimes.

Executing The Snipers May Not Be That Easy, Even In Virginia

Even if Virginia gets its wish to prosecute first, attempting to execute Malvo if he in fact is 17, is certain to raise significant constitutional questions.

Just this past week, for example, in In re Stanford, four U.S. Supreme Court Justices issued a rare dissent to a denial of certiorari in a death penalty case. They stated that "The practice of executing [juvenile] offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice."

Moreover, at least two federal judges have recently held the federal death penalty to be unconstitutional. These holdings, too, might at least in theory impede executions for both Malvo and even Muhammad, who is an adult, especially if their habeas corpus petitions reach federal courtrooms. (State convictions can be reviewed by federal district court judges under their habeas corpus authority, though different rules may apply to Malvo, a non-citizen.)

In short, regardless of who prosecutes the alleged snipers first and whether the feds ever do, the sentencing outcomes are far from clear.

Were the Sniper Killings "Terrorism"?

Not surprisingly, in this post-September 11 world, many are referring to the snipers as "terrorists." Virginia officials even have stated publicly that they want to prosecute them as terrorists. And certainly the killings inspired terror in many.

But there is an enormous difference between criminals who "terrorize" and "terrorists." The former are motivated by ego (Ted Bundy), delusions (Russell Weston), or other malignant, but personal, reasons. The latter, in contrast, are motivated by some political end or belief (Timothy McVeigh).

Even Osama bin Laden, in his videotapes, does not profess to be God, nor does he ask for money. Instead, he offers bizarre political theories and angry condemnations of the United States and its policies. His political motives, and not his mass murder alone, are what make him a terrorist.

It is important for us to maintain and understand the difference between criminals and terrorists. To jump so quickly to the suggestion that the snipers are terrorists trivializes terrorism. Moreover, it can only contribute to the megalomania of serial murderers.

Until we have evidence at trial indicating otherwise, we should not treat the snipers -- both in our rhetoric and our reactions -- as terrorists. Otherwise there is a risk that we will feed their egos, or even inadvertently provide some justification, however irrational, for their evil conduct.

For now, we should approach the prosecution of the snipers for what we know them to be: serial murderers, not enemy combatants bent on overthrowing our country. But if it turns out that their crimes were politically motivated, then perhaps it would be best for the federal government to prosecute them first.