November 4, 2002

TALKLEFT reports that Muhammad and Malvo will probably be tried in Virginia first. TalkLeft also thinks it’s unseemly to be basing trial strategy on where it’s easiest to get the death penalty:

We think deciding where to prosecute by the likelihood of the success of the death penalty is wrong and makes us look barbaric. . . . In addition, it’s unseemly to be talking as if death is a foregone conclusion. Doesn’t anyone remember that the two defendants have not yet had a trial or been found guilty? This is like a scene out of Alice and Wonderland: “No, No” said the Queen. “First the punishment, then the verdict.”

While I usually agree with TalkLeft on criminal-justice matters, this seems overwrought. Basing strategy on the death penalty is “barbaric” only if you already agree with TalkLeft that the death penalty is barbaric. (I don’t — I have problems with what Charles Black called “the inevitability of caprice and mistake,” but that’s entirely distinct from the character of the penalty itself). Nor does it seem inappropriate to me for prosecutors to base their strategy on getting the punishment that they believe the crime deserves. And doing so before the trial makes sense, as it’s not possible to do it after the trial.

TalkLeft will be on FoxNews this afternoon at 2:30 Eastern time. Perhaps we’ll get a more nuanced view then. Sadly, my campus cable system doesn’t get Fox, so I’ll miss it.

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