The Washington Post reports that senior officials are now saying the U.S. may let Virginia try the two sniper suspects first. A second option is letting Maryland go first. The reason is Ashcroft's "fervent" support for the death penalty.

In Virginia, both suspects are eligible for the death penalty. In Maryland and in federal courts, 17 year olds cannot be put to death.

We think deciding where to prosecute by the likelihood of the success of the death penalty is wrong and makes us look barbaric. The assignment should be made on the basis of which jurisdiction has the best evidence against the pair and was the most affected by the case. 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 in Wonderland: "No, No" said the Queen. "First the punishment, then the verdict."

We'll be discussing the options and likely scenarios on Fox News Monday around 2:30 p.m., ET

Update:

We noticed that a New York Times Editorial also makes an analogy to Alice in Wonderland but uses slightly different words. We looked up the original quote and found this:

"'Then the words don't fit you,' said the King looking round the court with a smile. There was a dead silence.

'It's a pun!' the King added in an angry tone, and everyone laughed. 'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first--verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice. Nobody moved'".

Instapundit takes issue with our statement that deciding the place of prosecution based on where the likelihood of getting a death sentence is greatest makes us look barbaric. We respect Professor Reynold's views a great deal, but we point out that one of these defendants is 17 years old. Only the United States, Iran, Pakistan, Nigeria, Saudi Arabia, Yemen and the Democratic Republic of Congo have reported executing juvenile offenders since 1990. Human Rights treaties do not allow for execution of juveniles. We believe the rest of the civilized world regards executing juveniles as barbaric and will view us as barbaric if we use the death penalty as the yardstick for where the juvenile should be prosecuted.

A few weeks ago, four Justices of the Supreme Court wrote in a dissenting opinion in Florida v. Foster that the practice of executing juveniles is "a relic of the past [that] is inconsistent with evolving standards of decency in a civilized society.... We should put an end to this shameful practice." The justices also noted, "like the mentally retarded, adolescents lack the impulse control of adults, and are thus neither deterred by the threat of death nor fully morally culpable for their actions. Society recognizes the immaturity of adolescents by forbidding them to vote, marry, drink or serve on juries."

Now it seems like our Attorney General is determined to choose a jurisdiction to try a 17 year old based on where he is most likely to be sentenced to death. The decision to seek the death penalty should not be made on the basis of the heinousness of the crime alone. Consider also that the Attorney-General is not supposed to make a decision to seek the death penalty until the Justice Department has given the defendant's lawyers a meeting at which they can argue against it. The Justice Department must consider factors concerning the character and history of the accused in addition to that of the severity of the crime before making a decision to seek the death penalty. That process has not even begun. For the Attorney General to call for the death penalty before being presented with this information is just plain wrong, not to mention in violation of the Justice Department's own guidelines.

Also, thanks to Instapundit, we noticed that our original post incorrectly identified Alice In Wonderland as Alice and Wonderland and we have corrected it.