A Perfect Killing?

For the last 4 years, as evidence has grown that the death penalty system in this country is rusted through, death penalty supporters have held one person aloft as the shining example of why we "need" capital punishment in this country: Timothy McVeigh.

Point out that the federal death penalty has been sought almost 80 percent of the time against minorities, and supporters of the death penalty point to McVeigh. What about the almost 100 innocent people let off of death row since 1977? McVeigh is the answer. Ninety-seven percent of people on death row are indigent? McVeigh. Questions about the reliability of eyewitness testimony? Again, McVeigh. What about the fact that a forensic scientist in Oklahoma City whose testimony helped send 23 people to death row (11 of whom have been executed already) is now being investigated for lying under oath on scores of occasions?

McVeigh is why we need capital punishment, the perfect case: He did it, he was well-represented at trial, and race cannot have played a role in his conviction or sentence. Most importantly, he's the "worst of the worst."

These four aspects of McVeigh's case make him a virtually unprecedented death row inmate; to say he's the exception to the rule of how the death penalty is administered in this country is an appalling understatement. To put it another way, if you believe in the death penalty because of Timothy McVeigh, you must then concede that clear-cut death penalty cases come along once or twice in a lifetime.

All that aside, it now turns out that even the "perfect" death penalty case is far from perfect. The FBI failed to provide McVeigh's defense team with more than 3,000 pages of documents during the trial.

Whether the 3,000-page omission happened because of dishonesty or incompetence or a faulty computer system, we don't know. What we do know is that in possibly the most important capital case this century, the proceedings were terribly bungled. If the Federal Government can't get the McVeigh prosecution right, what does that tell us about the cases of the 3,500 or so people on death rows across this country? And what of Raul Garza, next in line to be executed under federal law, who, being Hispanic and having been convicted of crimes that do not so clearly mark him as "the worst of the worst," is a more accurate representation of the federal death penalty in action? Does President Bush care about fairness in his case enough to delay Garza's execution pending a review of the troubling racial bias of the federal death penalty? Of course not.

Attorney General John Ashcroft has already announced that he won't allow McVeigh's execution to be put off beyond the new June 11 date. In doing so, he has made it clear that he and President Bush care nothing about real fairness -- 30 days to review more than 3,000 pages in a case this big? -- but only about the appearance of fairness. And he has done nothing to assuage the steadily increasing doubts we Americans have about how the death penalty is administered in this country.

And look what the FBI has done to the families of the victims. The federal government, which has spent the last five years telling the families of McVeigh's victims that they'll feel better when he's dead -- indeed, even to the extent of providing closed-circuit television viewing of the execution for a few hundred of them -- is now responsible for causing those people even more pain. The government has held out the carrot of "closure" and has snatched it away at the last moment.

We know McVeigh's execution won't serve as a deterrent -- in fact, we know that in killing him we are acceding to his wishes. We've made him a media star and a martyr. A society that kills is so angry, it is willing to do what isn't in its best interest just to see the enemy suffer. Apologists for the death penalty may argue that the government's role is to make sure punishment is applied judiciously, without anger, but the government has no right to impose punishments that are arbitrary or capricious, and our government has proven incapable of creating a death penalty system that is fair and even close to error-free (it doesn't even seem capable of making our current system less error-prone).

The bungled McVeigh case has made one thing clearer than ever: The federal government should declare a two-year moratorium on all executions, and each of the 38 states with death penalty statutes should follow suit. The McVeigh case has proven, once and for all, that no system is perfect. McVeigh's lawyers need time to carefully review the recently discovered documents, and our country needs time to undertake a thorough review of the death penalty, from the ground up.

The consensus building behind such a moratorium has grown steadily, with conservatives like Pat Robertson, George Will, and John Whitehead calling for a moratorium. Democratic Senators Russell Feingold, Carl Levin, Paul Wellstone, and Jon Corzine have been gaining support for such an idea in Congress.

Those who support capital punishment should be loudest among those calling for a moratorium, because in defending a system as clearly broken as ours, they do a great disservice to their "moral" arguments in favor of capital punishment -- if they won't even admit that a system as shoddy as the one now in place needs fixing, how can we trust their morals?

A moratorium on executions would allow the government to assess the death penalty and try to correct the enormous flaws in the system without executing anyone in the meantime. It may also allow a dialogue about the biggest flaw with the death penalty -- the punishment itself.

Even before recent revelations, the McVeigh case brought us to the hard nub of the death penalty question: Why shouldn't we kill people who deserve to die? Many liberals argue that, as Wendy Kaminer put it in a recent issue of The American Prospect, "[t]he question is dramatic but irrelevant" because the system is so badly flawed. Such liberals do as great a disservice to their arguments against capital punishment as death penalty proponents do in insisting that the system has no problems.

People support the death penalty because in the wake of murder, the anger we all feel is consuming, as is the sense -- for many of us -- that justice demands the killers pay for their crimes with everything they have. The question of whether we should kill people who deserve to die is, therefore, the most important question in the death penalty debate.

To answer it, first of all, put the idea of "closure" out of your mind. "Closure" is a concept too cheaply trumpeted by those who haven't had someone they love murdered and only hoped for by those who have. The hard, cold reality of losing someone to murder is that they are gone, and nothing will ever close that wound. Some things may make you feel a little better for a while, and hopefully McVeigh's execution will do that for some of the families he attacked. But that is very different from "closure." Our government ought not be in the business of seeking "closure" for some families while hurting others -- the families who don't want McVeigh executed, or who feel that they and their murdered loved ones are only diminished by the execution.

Rage, anger, a desire for justice: Most of us feel these things in the wake of murder, let alone in the wake of mass murder. In the end, the government should not kill McVeigh and other murderers not because they deserve compassion, but because what we do to them is a direct reflection of who we are as a country.

After McVeigh is dead, we Americans will be left with our conscience and our flawed justice system. Do we take the passion for justice that we all feel and put it to work preventing violence and saving lives, or do we pour it out, ruthlessly and haphazardly, in the venom of executions because we can point to a guy like McVeigh and say, "But he deserves it"? We are raised to believe that two wrongs don't make a right. We don't rape rapists or chop off the hands of thieves. We do kill killers. What does that make us?