Decision May Become Benchmark
By Roberto Suro
In Capital Punishment Debate
Washington Post Staff Writer
Saturday, June 14, 1997; Page A10
Timothy J. McVeigh was sentenced to death yesterday for a crime so rare and so easily condemnable that this verdict will most likely enter the centuries-long debate over capital punishment not as a question mark but as a bench mark.
The Oklahoma City bombing falls into the category of misdeed that has often provoked communities to strike back. And it is this kind of crime—treason and terrorism, the mass murder of innocents for political purposes—that has generated the longest and deepest consensus in favor of capital punishment.
Arguing that the Oklahoma City bombing was "the crime that the death penalty was designed for," prosecutor Beth Williams said of McVeigh: "He is a traitor and he deserves to die." That argument apparently proved persuasive with the Denver jury, and it will define McVeigh's place in legal history.
As McVeigh joins the 12 federal prisoners and the more than 3,000 state prisoners on death row in this country, the clarity of this case will stand in contrast to all the other death penalty cases that involve murkier crimes or more complex criminals.
"McVeigh is no Ted Bundy," said Walter Berns, a scholar at the American Enterprise Institute, referring to the serial killer executed in 1989. By the admission of his own defense counsel, McVeigh murdered in the name of politics rather out of some deep-seated perversity that might be blamed on mistreatment suffered as child.
"This is such a clear-cut case because the focus is all on the crime rather than on the criminal," Berns said.
Since ancient Babylon, legal codes have categorized crimes according to different degrees of severity, and by the late 18th century the English-speaking world had subdivided homicides according to such factors as the extent of premeditation and the degree of harm caused.
Crimes like treason, sedition, inciting slave revolts and, more recently, deadly airplane hijackings, almost always have fallen under the death penalty because they constitute crimes not just against a human life but against social order. In 1846, for example, when the territory of Michigan became the first jurisdiction in the United States to abolish the death penalty, it allowed an exception for treason.
Even Pope John Paul II, who condemned the "culture of death" that pervades the modern world, found an exception for capital punishment. While he categorically condemned euthanasia and abortion under all circumstances, in a 1995 encyclical he said the death penalty was acceptable "in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society."
In recent years the tendency in the United States has been to expand the scope of capital punishment, and in 1994 Congress authorized the death penalty for several dozen new crimes, among them certain drive-by shootings and drug felonies.
From today onward, criminologists who follow this field believe both supporters and opponents of the death penalty will cite the McVeigh verdict in making their arguments. For supporters it will stand as proof that certain crimes must be punished with death. Opponents will argue that if the Oklahoma City bombing justifies capital punishment it is wrong to apply the same punishment to someone who smuggles a ton of cocaine into the country or who fires blindly out of a car.
In either case, what happened in Denver yesterday will resonate, they say, because it evokes a monstrous clarity, like the sight of the Alfred P. Murrah Federal Building the morning of April 19, 1995.
The McVeigh verdict could also serve as a benchmark in deciding not just whether the death penalty should be applied, but how that punishment should be carried out.
In 1972, the Supreme Court ruled that the death penalty had to be imposed fairly and consistently or not at all, and for five years no one was put to death while states revised their statues and procedures to meet the new constitutional tests. Since then Congress, state legislatures and the courts have been engaged in an almost constant process of reform aimed at everything from shortening the appeals process to expanding the number of mitigating factors that a jury can consider on a defendant's behalf.
As both the legal jumble and the number of executions mounted, some jurists rebelled. In 1994, Supreme Court Justice Harry A. Blackmun changed his position on the death penalty, finding it unconstitutional and declaring, "From this day forward, I no longer shall tinker with the machinery of death." Last February, the American Bar Association demanded a halt to capital punishment, asserting that it is administered "through a haphazard maze of unfair practices."
An essential topic of this controversy has been the disproportionate number of African Americans who suffer death sentences. In the federal system alone, the government has sought the death penalty in 92 cases since a revised federal death penalty statute went into effect in 1988. Some 56 of those cases have been against blacks, 11 against Hispanics, five against Asians and 20 against whites.
The McVeigh verdict stomps into this debate atypical again and weighted with clarity.
Proponents of capital punishment will point to the Denver trial as evidence that whites can be put to death as well and that capital cases can be tried fairly and efficiently and with all due deference to the rights of defendants.
Opponents will argue that the McVeigh case may be an example of how a death penalty trial ought to be conducted, but that it is by no means typical.
"My concern is that people will draw judgments about the criminal justice system from what is really an aberration," said Stephen Bright, director of the Southern Center for Human Rights, which often assists in death sentence appeals. He noted that McVeigh enjoyed a multimillion-dollar defense put on by top-notch lawyers.
"It is the cases that don't make it on the radar screen that are really at issue," Bright said. "Those involve the defendants, overwhelmingly black and poor, who are represented by lawyers who fall asleep during the trial, who turn up drunk or who do not get a penny for expert witnesses." He cited recent cases in which each of those situations provided grounds for the reversal of a death sentence.
In his 1995 encyclical "Evangelium Vitae" ("The Gospel of Life"), John Paul II argued that given the quality of the modern penal systems, society should be able to protect itself against most criminals with incarceration and that cases of capital punishment should be "very rare, if not practically nonexistent."
With thousands of capital cases pending in the United States, the death penalty debate will rumble on, focused more on the common cases than on the rare ones.