Amid all the recent assaults on the Bill of Rights, including the latest
trashing in the USA Patriot Act and the denial of habeas corpus to
citizens, amid all this, in the span of one week, the Supreme Court has
issued rulings almost beyond the dreams of the most ardent civil
Listen to the exultant cry of Steven Hawkins, executive director of the
National Coalition to Abolish the Death Penalty, who said this is "the
most favorable term in a quarter of a century, in terms of death penalty
For those who have gazed aghast over the past generation as jury rights
have been trampled by tough-on-crime fanatics and liberal elites, there
are paragraphs in certain opinions in the Court's rulings that are as
momentous as any in the Warren Court. From whose pen did these
"My observing over the past twelve years the accelerating propensity of
both state and federal legislatures to adopt sentencing factors
determined by judges that increase punishment beyond what is authorized
by the jury's verdict, and my witnessing the belief of a near majority
of my colleagues that this novel practice is perfectly OK, cause me to
believe that our people's traditional belief in the right of trial by
jury is in perilous decline. That decline is bound to be confirmed, and
indeed accelerated, by the repeated spectacle of a man's going to his
death because a judge found that an aggravating factor existed.
We cannot preserve our veneration for the protection of the jury in
criminal cases if we render ourselves callous to the need for that
protection by regularly imposing the death penalty without it."
John Paul Stevens, you guess? No, Antonin Scalia. His emphasis on the
fundamental role of the jury as guardian of our rights under the
Constitution runs entirely counter to the trend of the past couple of
decades, when judges have, with either the approval or indifference of
legislatures and the press, been allowed not only to deprecate the
jury's fundamental right to nullify and set the law aside but also to
set jurors' verdicts aside and impose their own, often with lower
standards of proof.
By and large, liberals have been the architects of these erosions of
fundamental popular rights, whether it was Tip O'Neill rushing through
totalitarian drug laws in the mid-1980s; or Clinton's Antiterrorism and
Effective Death Penalty Act (which, among other horrors, junked the
doctrine of habeas corpus); or the hate crimes statutes written into
many state codes at the behest of gay, feminist and liberal civil rights
groups in the wake of the James Byrd and Matthew Shepard killings.
Scalia exposes the contradictions tellingly in his concurring opinion in
Ring v. Arizona, where the Court struck down, 7 to 2, an Arizona
statute that allowed judges rather than juries to impose the death
penalty. He rightly chides Justice Stephen Breyer for inconsistency in
endorsing the right of judges to overrule the jury in tacking on
enhanced punishment under hate crimes statutes, and then, in Ring v.
Arizona, for tacking the other way. Scalia's term for this kind of
pirouette is "death-is-different jurisprudence."
Another momentous Supreme Court ruling, Atkins v. Virginia,
concerns a case in which a man with an IQ of 59 was sentenced to death
for committing a robbery and murder. The Court has ruled 6 to 3 that
times have changed and that it's not OK these days to put the retarded
Scalia, dissenting, made an argument in consonance with his view of the
jury's paramount role, as expressed in Ring. Why, he asked,
should the determining of a person's mental competence be allotted to
the social scientists, the IQ testers, the battery of so-called experts
so memorably stigmatized in the works of the late, great Stephen Jay
Gould? Liberals don't want to execute the mentally retarded; they just
want to abort or sterilize them. In the Atkins trial, Scalia noted, the
jury had been given testimony on the murderer's mental capacity but had
regarded it as insufficient in detaining the defendant from the death
Scalia asks, How can one exempt people from the capital penalty on the
grounds of mental incapacity to recognize the concepts of punishment and
retribution, and then put them away in prison for their rest of their
Where Scalia is caught in an obvious contradiction is in his endorsement
of the notion that only those prepared to vote for the death penalty
should be allowed on a jury, and that appeals court judges opposed to
the death penalty should recuse themselves in capital cases. "There is
something to be said," Scalia writes in his dissent in Atkins,
"for popular abolition of the death penalty; there is nothing to be said
for its incremental abolition by this Court." Again, it's a good
argument, but abolition of slavery began in part with the refusal of
juries to abide by statutes endorsing slavery. Ditto with religious
freedom, starting with William Penn, whose jury refused to convict him
for flouting the Conventicle Act.
If he were consistent, Scalia would recognize that jurors should be
rejected only if they have a material interest in the outcome of the
case. And given that some 30 percent or more in the United States are
opposed to the death penalty, such juries would more than likely have a
death penalty opponent among the twelve. On the role and rights of the
jury I strongly recommend Godfrey Lehman's Is This Any Way to Run a
Meanwhile, we should honor the tremendous efforts of the defense teams
who fought these cases to the Supreme Court and who have been rewarded
by two decisions that overturn the death sentences of hundreds. But the
fact remains that it is the death penalty itself that needs to be
abolished, and this is a peerless moment of opportunity for death
penalty activists to press forward.
The Court majority said in the Atkins decision that the Eighth
Amendment prohibition on cruel and unusual punishment reflects social
values, which change from century to century and decade to decade
(notwithstanding Scalia, who gazes back nostalgically 2,000 years to St.
Paul). What an excellent springboard for an invigorated campaign to end
the barbarism of judicial killing.
The old movies used to feature a priest walking alongside the condemned
man toward the scaffold, offering last seconds of comfort,
plea-bargaining strategies with St. Peter, a bolstering hand under the
elbow. Sometime in the next decade the tableau may be reversed, with a
lay counselor assisting the condemned priest as he totters toward that
final rendezvous with the executioner.
The death penalty is being vigorously touted as the best way to deal
with child molesters. And as the world knows, the Roman Catholic Church
has sheltered many a child molester. On the cutting edge here are three
states noted for the moral refinement of their legislators: to wit,
Montana, Louisiana and Alabama. The first two states have already put
Death for Molesters into their statute books, and when Alabama lawmakers
convene again next year they will press forward into legislation, after
an overwhelming vote from the state's House of Representatives last year
in favor of molester executions.
The Montana law allows a person previously convicted of "sexual
intercourse without consent" with someone under 16 in any state to be
sentenced to death if convicted of the crime in Montana. The law was
passed in 1997, but no one has yet been charged under that provision.
Since 1995 Louisiana has had a law allowing the death penalty for people
convicted of raping a child under 12. Thus far, a few charges, no
Alabama's bill would authorize the death penalty for people convicted a
second time of having sex with someone under 12. No other states allow
capital punishment for a sex crime. ABC News quoted Marcel Black,
chairman of the Alabama House Judiciary Committee, as saying, "The very
serious meaning of this is to send a message to child molesters that it
is a bad thing to do."
Molesters can take comfort in the fact that these laws will probably not
survive challenges from higher courts. The US Supreme Court ruled in
1977 that the death penalty is excessive punishment for rape. But who
knows, in the current atmosphere anything is possible. Maybe that's why
Pope John Paul II, a far-seeing man, shifted the Church toward
opposition to the death penalty.
Two years ago fewer than 8 percent of those who took part in a Gallup
poll among Jewish Israelis said they were in favor of what is politely
called "transfer"--that is, the expulsion of perhaps 2 million
Palestinians across the Jordan River. This month that figure reached 44
Professor Martin van Creveld is one of Israel's best-known military
historians. On April 28 Britain's conservative newspaper the Telegraph
published an article outlining what van Creveld believes is Sharon's
According to van Creveld, Sharon's plan is to drive 2 million
Palestinians across the Jordan using the pretext of a US attack on Iraq
or a terrorist strike in Israel. This could trigger a vast mobilization
to clear the occupied territories of Arabs. Van Creveld notes that in
the 1970 showdown between Jordan's King Hussein and the PLO, Sharon,
serving as commanding officer of Israel's southern front, argued that
Israel's assistance to the King was a mistake; instead it should have
tried to topple the Hashemite regime. Sharon has often said since that
Jordan, which has a Palestinian majority even now, is the Palestinian
state, and thus a suitable destination for Palestinians to be kicked out
of his Greater Israel.
A US attack on Iraq would offer appropriate cover. Sharon himself told
Secretary of State Colin Powell that nothing happening in Israel should
delay a US attack. Other pretexts could include an uprising in Jordan,
followed by the collapse of King Abdullah's regime.
Should such circumstances arise, according to van Creveld, Israel would
mobilize within hours. "First, the country's three ultra-modern
submarines would take up firing positions out at sea. Borders would be
closed, a news blackout imposed, and all foreign journalists rounded up
and confined to a hotel as guests of the Government. A force of 12
divisions, 11 of them armoured, plus various territorial units suitable
for occupation duties, would be deployed: five against Egypt, three
against Syria, and one opposite Lebanon. This would leave three to face
east as well as enough forces to put a tank inside every Arab-Israeli
village just in case their populations get any funny ideas."
In van Creveld's view (he does say that he is utterly opposed to any
form of "transfer"), "the expulsion of the Palestinians would require
only a few brigades. They would not drag people out of their houses but
use heavy artillery to drive them out; the damage caused to Jenin would
look like a pinprick in comparison." He discounts any effective response
from Egypt, Syria, Lebanon or Iraq.
But what about international reaction? Van Creveld thinks it would not
be an effective deterrent. "If Mr Sharon decides to go ahead, the only
country that can stop him is the United States. The US, however, regards
itself as being at war with parts of the Muslim world that have
supported Osama bin Laden. America will not necessarily object to that
world being taught a lesson--particularly if it could be as swift and
brutal as the 1967 campaign; and also particularly if it does not
disrupt the flow of oil for too long.
"Israeli military experts estimate that such a war could be over in just
eight days," van Creveld writes. "If the Arab states do not intervene,
it will end with the Palestinians expelled and Jordan in ruins. If they
do intervene, the result will be the same, with the main Arab armies
destroyed. Israel would, of course, take some casualties, especially in
the north, where its population would come under fire from Hizbollah.
However, their number would be limited and Israel would stand
triumphant, as it did in 1948, 1956, 1967 and 1973."
We've been warned.
Anyone looking for evidence that the death penalty should be
abolished need only look at the case of Zacarias Moussaoui, the
so-called twentieth hijacker, now on trial for his life for allegedly
A world effort to force an end to the US death penalty is gaining strength.
In Terre Haute, the effects of one execution are only the beginning.
To write a letter on behalf of Juan Raul Garza, as well as the other prisoners currently
on state and federal death row, visit our Death Row Roll Call.
Strange as it may seem, Timothy McVeigh and George W. Bush shared the same analysis of McVeigh's execution Monday morning, June 11, in Terre Haute. The Oklahoma City bomber, intoned Bush, "met the fate he chose for himself six years ago"--the perfect mirror of McVeigh's own vision of himself as "the master of my fate," in his citation of William Ernest Henley's "Invictus."
The notion of "fate"--a predetermined outcome--sanitizes state-sponsored killing even as it fulfills McVeigh's megalomaniacal delusions. But fate had nothing to do with it. Death sentences are a matter of caprice rather than legal predetermination, as evinced by the twenty-one of twenty-three federal death-row inmates remaining in Terre Haute whose "fate" was to be born nonwhite. Myth: "The severest sentence for the gravest of crimes," as Bush declared that Monday, employing McVeigh as a handy fig leaf for a federal death row even more racially out of kilter than its state counterparts. Reality: The capital trial norm remains "the death penalty not for the worst crime, but the worst lawyer," in the words of litigator Stephen Bright.
One salient political and legal fact received scant consideration Monday: Because it was a federal execution, McVeigh's killing was the first in two generations on behalf of all of us. But "all of us," or even the majority of us, no longer support the death penalty. The government has gone back into the killing business at the very moment when the national capital punishment consensus has eroded, as indicated by polls showing support for death sentences slipping below 50 percent if replaced by life terms without parole. McVeigh's execution was supposed to turn this trend around. Instead, the FBI's documents blunder and the generally sordid spectacle from Terre Haute only fed public unease.
Sanitizing was pretty much the universal order of business Monday. The news media made much of their sensitivity to Oklahoma City's survivors. But only the Daily Oklahoman consistently noted the diversity of survivor opinion on McVeigh's execution, and among broadcasters only KWTW, an Oklahoma City station, reported that nearly a third of the 325 people who had reserved chairs for the closed-circuit telecast elected not to show up. And only the Chicago Tribune has bothered to report--in an interview with an anesthesiologist shortly before McVeigh's original execution date in May--that lethal injection deaths like McVeigh's are often far more painful than they may appear to witnesses. The closed-circuit telecast of McVeigh's killing also offered powerful ammunition against the argument from some leading abolitionists that public broadcasts of executions would lead to widespread outrage against them. "It was such a peaceful death. That made it more palatable," witness Archie Blanchard said on NBC, after confessing that before the telecast it had been "hard to think about being there."
Also missing from press coverage was any recognition of McVeigh's forgotten conspirators. Not John Doe #2, but the wide range of "mainstream" right-wing politicians and broadcasters and publishers and gun lobbyists who exploited the Branch Davidian deaths in Waco with wild conspiracy theories, ratifying McVeigh's delusional rage and naming his enemy. Just a few of those sharing collateral guilt: the National Rifle Association, which not long before Oklahoma City called the Bureau of Alcohol, Tobacco and Firearms "jack-booted government thugs, federal agents wearing Nazi bucket helmets and black storm trooper uniforms to attack law-abiding citizens"; Representative Helen Chenoweth, who declared that America's national parks had been taken over by the United Nations; Senator Bob Smith, who temporarily dropped his GOP affiliation in favor of the paranoid, antigovernment populists of the US Taxpayers Party; and antichoice fanatics who pointed the way to Oklahoma City with their abortion clinic bombings in the early nineties. It is easier to treat Tim McVeigh as an inexplicable aberration who can be evicted from history than to recall just how widely evident were obsessions like his.
President Bush and Attorney General Ashcroft now turn their attention to Juan Raul Garza, scheduled for execution on June 19. In between, Bush traveled to Europe, arriving in Spain, which was in an uproar over a falsely convicted Spanish citizen recently released from Florida's death row. America's death penalty has for years baffled our European partners, but it is only now becoming a serious diplomatic and political issue. France is refusing to extradite Buffalo abortion doctor shooter James Kopp until prosecutors agree to spare him from capital charges, and Germany is suing the United States over the execution of a German national who was never informed of his consular rights. In Ireland, voters on June 7 overwhelmingly approved a referendum permanently abolishing capital punishment from the country's Constitution. Capital punishment now isolates the US abroad as it divides Americans at home. The McVeigh execution, instead of marking a new era of federalized capital punishment, may turn out to be the high-water mark before the long-overdue retreat of the capital punishment tide.
Now that Timothy McVeigh has been executed, I suppose we're all supposed to stop talking about it--to "enjoy closure," a bit like the election.
But McVeigh's execution was troubling on so many levels, it's hard to know where to begin. It was alarming to watch the procedural impatience, the official "just get it over with" mentality, despite defense lawyers' not having had a chance to go through more than 4,000 pages of FBI documents that no one disputes ought to have been turned over before McVeigh's trial.
It was distressing to hear the semantic shiftiness of our President as he described the event. To us individualists at home, he said that it was McVeigh who "chose" this method of reckoning; to a European audience it was "the will of the people in the United States." Like some libertarian Pontius Pilate, Bush washed his hands of any responsibility, skillfully uncoupling the role of the executive from execution. It's bad enough to have a death penalty; it is positively chilling when the chief poohbah shrugs it off as though helpless, assigning federally engineered death to forces beyond him.
It was incredible to see anti-death penalty commentators apologizing constantly, always having to blither "of course no one condones his actions"--as though arguing for life imprisonment made one the squishiest, most bleeding-heart of moral equivocators. As a New York Times commentary observed, "Experts said it was the wrong case to debate--many people who do not approve of the death penalty wanted Mr. McVeigh to die."
Yet if one really wants to test the commitment of a civilization to its expressed principles of justice, the McVeigh case is exactly the right case to debate. There was little question as to his guilt (even if the question of conspiracy remains an open one in some quarters), his crime was inexpressibly reprehensible and he maintained a demeanor of controlled, remorseless calculation to the end. In other words, it is precisely the dimension of his evil that presses us to consider most seriously the limits of state force. The question is whether we want to license our government to kill, rather than just restrain by imprisoning, the very worst among us.
Much recent debate about capital punishment has focused on probabilities: the repeated demonstration that "beyond a reasonable doubt" is a matter of considerable uncertainty and outright error. I have recommended before Actual Innocence by Jim Dwyer, Barry Scheck and Peter Neufeld, and I do so here again. These lawyers' work with the Innocence Project has led to dozens of releases from death row and to calls for moratoriums in states where pro-death penalty sentiment once ran high.
There is also the question of disparate impact, particularly upon minorities and the poor. "There are no racial overtones in [McVeigh's] conviction," wrote the New York Times in an editorial. Perhaps that's true if considered in a vacuum, but certainly not with regard to its procedural legacy. If the FBI couldn't get right the most important and supposedly most careful investigation in its history--and still no stay was granted--then there is no hope in any other case. McVeigh's "nonracial" fate, moreover, will surely be invoked highhandedly in all those more routine, less highly scrutinized cases. The fact that of the remaining federal death row inmates only two are white is, according to John Ashcroft, merely "normal." For more on this aspect of the debate, I recommend reading Legal Lynching: The Death Penalty and America's Future, by the Rev. Jesse Jackson, Representative Jesse Jackson Jr. and The Nation's own Bruce Shapiro. Forthcoming from The New Press, it is an eloquent argument against the inequity of the death penalty's administration and makes a compelling case against its violent irreversibility, its unredeemable finality as pursued by prosecutors, judges and juries who are, after all, far from all-knowing or divine.
One of the saddest parts of the McVeigh saga was listening to the endlessly amplified testimonials of those survivors and family members whose sentiments were premised on vengeance being "mine" rather than the Lord's. One woman wished the electric chair had been used, because it would have been more painful. Another said, "I think bombs should be strapped on him, and then he can walk around the room forever until they went off and he wouldn't know when it would happen."
Such traumatized expectations led to predictable disappointment. "I really wanted him to say something," said one witness. "I wanted him to see me," said another. "I thought I would feel something more satisfying, but I don't," said a victim's son. "For him just to have gone asleep seems unfair." This sort of desire for "more" leaves us poised on the edge of an appetite for re-enacted violence and voyeurism. Given the horrific losses McVeigh's crime incurred, this primal hunger can be almost seductive--a howl of mourning very hard to resist, never mind debate. But it is dangerous if it allows us to lose sight of the fact that the debate we must have is, again, about the limits of state force, not about devising the perfect mirror of each victim's suffering.
But the bottomlessness of that individual trauma is not something we can afford to ignore either. For a wise and extremely moving reflection on this dimension, I recommend Susan Brison's Aftermath: Violence and the Remaking of a Self, forthcoming from Princeton. Brison, a Dartmouth College philosophy professor who was raped, strangled and left for dead, analyzes the post-traumatic stress syndrome that still colors her life and reflects on the resilience needed to carry on. "Trauma," she writes, "destroys the illusion of control over one's life. It fractures the chronology of a life's narrative--not in the way a stopped watch makes time look like it's standing still, but like the thirteenth chime of a crazy clock that throws everything that came before into question."
"9:03" reads an inscription on the Oklahoma City National Memorial. Would that we could undo that awful moment in Oklahoma City by sacrificing McVeigh's one life for all the others, but the difficult paradox of healing is having to live on and through that wilderness of grief with no illusion of control.
For more information, see our Death Row Roll Call.