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Thursday, Nov. 07, 2002

Since the arrest of John Allen Muhammad and John Lee Malvo as suspects in the East Coast sniper killings, the calls for their execution have been almost constant.

The sentiments -- expressed by private citizens and government officials alike -- have taken on a frenzied quality. Everyone seems to be trying to figure out which jurisdiction most "deserves" to kill the two; which has a statute that will enable it to kill the boy as well as the man; which would kill them with the greatest speed and certainty.

As yet, I have heard no voice raised to question these furious calls for execution - to question what it means for a civilized nation to be obsessively focusing its collective attention on the swiftest, surest way that we can take more life in response to horrible acts of murder. I wish to raise these questions here.

The Difference Between Personal Rage and the Societal Search for Retribution

The sniper killings were a barbaric crime and a horrific offense against the individuals and communities that were directly affected. For the friends and loved ones of the murdered, an angry cry for retribution is entirely understandable -- perhaps even an emotional necessity.

There are many circumstances in which the law prevents people from acting upon their emotions. If someone insults your honor, you may want to lash out physically, but the law restrains that behavior -- verbal provocation is not generally an excuse for physical violence. The law does not deny that good people sometimes feel a desire to react with violence, nor even that such a desire may be emotionally justified. Rather, the law reflects a judgment that our society is a better place if people must restrain their violent reactions.

The law even forbids individual survivors of violent crime -- with all their legitimate grief and rage -- from taking the law into their own hands and seeking personal vengeance. Once again, the law reflects a judgment that our society will be safer, more stable, and more respectful toward human life if such impulses, though understandable, are restrained.

Might the same not be true of capital punishment, even in the case of a barbaric crime like the sniper murders? What does it do to us, as a people, to respond to tragedy by clamoring for a swift and sure execution -- to seek solace by seeking out more death? What does it do to our respect for human life to hear frenzied debates among government officials about the swiftest, surest way to kill the presumed criminals?

At a time when we should not even be discussing execution, since no trial has yet occurred, angry calls for swift and brutal retribution have overwhelmed the public discourse and, apparently, become our government's top priority.

An Historical Antecedent: America's Experience with Lynching

America has experience with societal calls for violent retribution, an experience that has left an indelible mark upon our collective spirit. For a hundred years following the Civil War, black Americans were regularly terrorized by the threat of lynching as a means of enforcing the "social order." Communities enraged by terrible crimes -- or, sometimes, enraged by nothing more than their own racist view of the world -- would wreak swift, sure and righteous vengeance upon black bodies.

The horrible impact of lynching upon black Americans was clear. But what impact did the practice have upon the white communities that carried it out?

In his 1933 autobiography, James Weldon Johnson, one of the early leaders of the NAACP, famously wrote these words about his investigation of a 1917 lynching in Tennessee:

I reassembled the picture in my mind: a lone negro in the hands of his accusers, who for the time are no longer human; he is chained to a stake, wood is piled under and around him, and five thousand men and women, women with babies in their arms and women with babies in their wombs, look on with pitiless anticipation, with sadistic satisfaction while he is baptized with gasoline and set afire. The mob disperses, many of them complaining 'They burned him too fast.' I tried to balance the sufferings of the miserable victim against the moral degradation of Memphis, and the truth flashed over me that in large measure the race question involves the saving of black America's body and white America's soul.

For me, the frenzied public debate over how to kill the snipers most quickly provides a chilling, eerie reminder of the angry calls for bloodshed -- public bloodshed before a huge audience -- that communities throughout America shouted when "Judge Lynch" still held sway. Only with an immediate and merciless execution, it seems, will we believe that "justice" has been done.

Capital Punishment: Not Lynching, But Not So Different Either

To be clear: Modern capital punishment is not the equivalent of lynching, from either a moral or a legal standpoint. Lawlessness was one of the principle features of lynching. Capital punishment is carried out as the conclusion of a state-run trial.

But does the fact that a modern execution is authorized by law, and takes place in a sanitized facility with less gruesome methods, really protect America's soul from the culture of violence that overwhelmed so many upright citizens in the first half of the twentieth century?

Ordinary people clamored for swift and public executions when lynching held sway and private vigilantes did the killing. Today, as we see ordinary people once again clamoring for swift and public executions, I fear that we are repeating one of the great mistakes of the lynching era: looking to violence to find spiritual catharsis.

In rejecting the practice of lynching, we did not simply reject a horrific tool of racial subordination. We also took an important step down a path of social evolution -- a step away from blood vengeance as an organizing principle in the life of our community.

The People Must Lead, If the Supreme Court Will Not

The Supreme Court has not yet traveled the path that I suggest. While the Court has taken a tentative step to reconsider the death penalty's scope -- declaring that execution of the mentally retarded constitutes cruel and unusual punishment and suggesting, for the first time, that the moral evolution of the international community has some bearing on the limits imposed by the Eighth Amendment -- it continues to recognize "retribution" and expressions of "moral outrage" as reactions that are legitimate, not just on a personal level, but on a societal level as well. The Court articulated that position in the 1976 decision of Gregg v. Georgia and has not yet retreated from it.

The fact that legislatures are still permitted to preach the message of retribution, however, does not mean that the people must follow their lead.

I think that we must ask whether we would not be a better society -- whether the soul of America would not be safer -- if we chose to restrain our outrage and focus our attention on safety and healing, rather than blood vengeance. Let us refuse to sacrifice our own humanity in choosing our response to these acts of barbarism.

Tobias Barrington Wolff is a professor of Constitutional Law and Civil Procedure at U.C. Davis. His e-mail address is

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