Prosecutors for Maryland, Virginia, and the federal government all want to try John Muhammad and John Malvo, the sniper suspects, for killings in the D.C. area. Alabama prosecutors have filed murder charges against the two men for an earlier shooting. And the state of Washington wants them for a homicide in Tacoma. Who decides which prosecution will go first?
There is no law governing the issue, but in this case federal officials will dictate the order of prosecution, largely because they enjoy two sources of leverage over their state colleagues.
First, the suspects are currently in federal custody in Baltimore—Muhammad on an unrelated weapons charge, Malvo as a material witness. In prosecution battles, possession is nine-tenths of the law. A prosecutor has no duty to hand over a suspect in custody for another jurisdiction to prosecute first. And while murder itself is strictly a state crime, Muhammad and Malvo can be charged with federal offenses. The Hobbs Act, for instance, makes it a federal crime to kill someone while demanding $10 million in interstate extortion.
Moreover, under the Constitution’s Supremacy Clause, federal statutes have supremacy over state law. So, even if state officials had the suspects in custody, federal prosecutors could demand that they turn them over for prosecution under federal law first—a demand one state cannot make of another.
What will Justice officials decide? Two options seem most likely.
Attorney General John Ashcroft could hand the case to the U.S. attorney in Maryland or Virginia for a federal prosecution. MSNBC reports Tuesday that federal charges will be filed in Maryland, but that doesn’t necessarily mean the federal case will go forward first. Ashcroft may want the death penalty for Malvo, who is reportedly 17 years old, and there’s no federal death penalty for minors.
So, as an alternative, the feds may authorize Virginia state prosecutors to proceed first. Virginia allows the execution of minors and its appellate courts have a strong record of upholding death penalty convictions. And Virginia is second in the nation in executions per year, behind only Texas.
Unfortunately for Malvo, he wouldn’t be able to claim double jeopardy because the federal government and the states are all considered separate sovereigns.
Explainer thanks Robert Weisberg at StanfordLawSchool and Solomon Wisenberg at Ross, Dixon & Bell.