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I have been opposed to capital punishment since the day I understood what it meant. I oppose it on practical grounds, on economic grounds, and on moral grounds. The profound illogic of killing someone to illustrate that killing is wrong is inescapable. Or so I believed, until Lee Boyd Malvo came along, the 18-year-old sniper who is about to go on trial in Virginia, charged with killing Federal Bureau of Investigation analyst Linda Franklin, and who is allegedly responsible for the deaths of nine other people in the Washington, D.C., area last year. I write this as the Malvo defense team has just lost a bid to have the death penalty ruled unconstitutional, as applied to a young man who was only 17 at the time of the killings. The judge in this case — Jane Marum Roush — denied the motion, which was based on the contention that no other civilized country executes minors, saying that the United States need not be concerned with what the rest of the world does. Ordinarily I’d be shocked at the arrogance and callousness of such a ruling, but in this case, I see why Roush ruled as she did. Malvo is not a candidate for compassion. There are many good arguments for getting rid of the death penalty, and I still accept most of them. It’s just that none apply to Malvo. The most common objection to capital punishment — and the problem that’s begun to elicit support from such stalwart supporters of the death penalty as Sandra Day O’Connor — is procedural. There is no longer any question that most death row killers have received less than adequate trial counsel, often as a result of a wildly overworked and under-funded public defense bar. And while such representation may not amount to ineffective assistance of counsel at a constitutional level, there is good evidence to suggest that many public defenders simply don’t have the time or resources to devote to their capital cases. The result is a fundamental imbalance, in which the state puts on a stronger case, which leads to the execution of disproportionately poorer and minority defendants. But this is not an issue in the Malvo trial. His counsel Michael S. Arif and Craig S. Cooley have already proven themselves more than able to defend him, and the taxpayers have helped pay for that. His defense team has done nothing to suggest that they are anything other than crack lawyers, who will do anything in their power to keep their client alive. So that excuse is gone. Another traditional argument against the death penalty has to do with uncertainty and the legal process. While we love to believe in the infallibility of eyewitness testimony, the truthfulness of jailhouse snitches, and squeaky-clean police investigation procedures, DNA and other post-conviction evidence reveal that the wrong guy has been sent to death row on more than one occasion. Why? Because so long as human beings are imperfect, legal proceedings will be imperfect as well. People make mistakes, people lie, people make deals. The result is that in ambiguous or close cases, convictions may be based on error or manipulation. But this is not an issue in the Malvo trial. We know he did it, we know how he did it, and we know when and why. Malvo has bragged about his involvement in these murders and laughed at the dead. There is simply no colorable claim of innocence here. So the defense team is trying to mount some sort of “brainwashing” defense; arguing that Malvo was under the complete control of John Allan Muhammed, the second sniper. Maybe he will prevail on that point, although brainwashing defenses are notoriously difficult. But if Malvo was not brainwashed, he deserves to die. Another argument against capital punishment, one born of working on many death penalty cases when I clerked on the 9th U.S. Circuit Court of Appeals, is that so very many death row defendants are simply pathetic. By pathetic, I can cite only to the high instances of severe childhood physical and sexual abuse, the lack of any positive role models, and the frequently low or extremely low IQs that so often correlate with capital defendants. None of these factors makes the killer any less accountable, or the killing less heinous. But there is an overwhelming sense, in reviewing death penalty cases, that these individuals never had a moment’s love or human affection; that they were never shown any other path. I doubt this argument would persuade any real proponent of capital punishment, but it certainly raises a moral question about ending the lives of those who had only brutal beginnings. There is nothing to suggest that Lee Boyd Malvo suffered from any of these setbacks, however. He grew up fatherless, and his mother often left him with others while she sought work. Still, the worst thing he seems to have suffered at her hands was poverty; the same poverty so many other Jamaican-born children know. Malvo is not mentally delayed. On the contrary, by most accounts he is exceptionally bright. Nor has he had a history of run-ins with the law. He is not a boy who’s never known love or honest work. He is simply a boy who decided to kill people for money. Which is another reason he deserves to die. Finally, the law does not always make the following factual distinction among murderers, but perhaps it should: Most people who kill other people are, put simply, losers. They are drunks and hotheads, jealous husbands and nervous bank robbers. They are caught up in bar fights, or gangs, or infidelity. They are the kind of guys who do something reckless and stupid, and spend the rest of their days regretting it. They are not society’s prizes. Still, it’s not clear to me that we’d be better off killing them. But, occasionally, the people on death row are just self-appointed executioners; people who are not caught up in a momentary lapse of judgment, or tangled up in some situation beyond rational thinking. These are people who just wake up one morning and know that they will kill someone that day. The irony of this sort of person opposing the death penalty cannot escape anyone. There is no excuse or justification or even mitigating factor at work here; there is simply an executioner opposing his own execution. Perhaps the one excuse in Malvo’s case is his youth. Yet his letters to his mother suggest that he knew precisely what he was doing and why: “You called into existence a strong mind,” he wrote. “I hope some day you may understand completely that you deserve no blame, nor should my indecence disturb thy peace.” Malvo has been insolent and arrogant during his pretrial proceedings, proud and unrepentant. His very lack of remorse suggests that any moral argument about his lack of culpability is wrongheaded: Malvo is not remorseless because he is young. He is remorseless because he is proud of what he’s done. Which is why he deserves to die. Perhaps there is some other argument for sparing Malvo’s life, and perhaps we will hear it when the case opens in November. But I can’t yet think of any. And trust me, I have tried. Dahlia Lithwick is a senior editor and Supreme Court correspondent for Slate. She is coauthor of “Me v. Everybody” (Workman Publishing).

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