At 9 p.m. tonight, November 10th, John Allen Muhammad, the terrorist who brought the D.C. area death and fear in October 2002, will be injected with a lethal cocktail by the Commonwealth of Virginia.
It is almost impossible to say that the world will be any worse off without John Allen Muhammad in it, considering the man is an odious and wretched excuse for a human who willfully snuffed out the lives of ten innocent people.
And yet...
While Muhammad's death will be no great loss, the fact that our society will once again have claimed authority over life and death will be.
I know that most do not agree with me as to the imperative for abolishing the death penalty, including many on this site. I also know that most all of us will agree that instances where guilt cannot be conclusively determined, such as the case of Cameron Todd Willingham, ought not end in an irrevocable penalty. But this is a case where guilt is pretty clear, where the crimes are extensive and savage, where the intent was to shatter the security of an entire city and instill terror.
If ever there was a case for execution, John Allen Muhammad is it.
But in spite of his crimes, and the fear and grief he created through them, I can't find it in me to cheer on his execution.
Because while tonight Virginia will kill John Allen Muhammad, tomorrow I'm going to spend the evening with Kerry Max Cook, who'll be "celebrating" the tenth anniversary of his release from death row in Texas, where he was incarcerated for 22 years for a crime he didn't commit. (If you're in DC tomorrow night, you're welcome to join us.)
You see, often when discussing the death penalty, I hear some variant of the argument that "I'm in favor of it if we limit it to cases where there's absolutely no doubt as to guilt, like when there's a video of the crime or a confession." The most obvious response is that there's no reason to suspect that the outcomes will be any different: a jury that mistakenly believes someone to be guilty beyond a reasonable doubt--the current standard--might just as mistakenly believe someone to be guilty beyond all possible doubt. And if a juror is sure beyond a reasonable doubt, but not certain beyond all possible doubt, do we really expect that juror to acquit someone he is sure is a killer, or do we expect that juror to simply mouth the words that will provide finality? The jurors who convicted Kerry Max Cook, Cameron Todd Willingham, Ernest Willis, and Jeffrey Deskovic were absolutely certain of their guilt as well. Three of them were sent to death row. One of them was executed. None of them rightly should have been convicted under any standard stricter than "I've got a hunch," but in each case the prosecutors and jurors were certain they had it right (in one case, they even had a confession).
A less obvious objection, though one that's just as important, is that such a "guilt beyond all doubt" system would be arbitrarily applied. At what point does clear and convincing evidence become overwhelming and unchallengeable proof of guilt? Under what circumstances, and against what defendants, will prosecutors seek the death penalty in such a system? And if such a system is arbitrarily applied (as it would be--prosecutors would just employ it against those defendants less likely to receive sympathy from the jury for whatever reason), how can that square with the 8th Amendment's "cruel and unusual punishment" standard? Indeed, when the Supreme Court imposed a national moratorium on the death penalty in the 1972 case Furman v. Georgia, the outcome turned on the fact that the death penalty was being arbitrarily applied.
I know it's odd that someone like me, who opposes the death penalty, would likewise be opposed to an idea that would likely lead to at least a few fewer executions, but abandoning our current arbitrary and capricious system for one that's even more arbitrary and capricious is not something I can consider progress. The death penalty is an inherently unjust and irredeemably flawed regime. And even when it is applied against those most deserving of the severest punishments, it remains inherently unjust and irredeemably flawed. (I'm not even going to get into the fact that capital punishment costs far, far more in monetary terms than imprisonment.)
So tonight, Virginia will kill a man. He's a bad man--a terrorist, in fact--and he committed unspeakable sins for unfathomable reasons. If ever there was a case for capital punishment, John Allen Muhammad would fit the bill.
If ever there was a case, that is.