Pictures at an Execution

Timothy McVeigh is scheduled to be killed on May 16, on closed-circuit TV (for the benefit of his victims) and with luminaries like Bryant Gumbel presiding over what networks presume will be a national death watch.

We won't actually see McVeigh being poisoned, unless a pirated tape of the execution is disseminated. But we're sure to be regaled with numbing reports about his last moments and discussions of execution protocols. We're likely to hear from at least a few of the people who witness his death, as well as numerous commentators for and against capital punishment. Downtime will probably be filled with stories about the victims of the Oklahoma City bombing, discussions of domestic terrorism, and arguments about televising executions. When they get desperate, they'll tell us about Terre Haute, home of the federal death chamber, where hotels and motels for the week of May 13 have long been sold out.

McVeigh's impending execution has reinvigorated debates about public executions. (They were phased out in nineteenth-century America, partly because people enjoyed them too much.) But public viewing of executions is less important than public scrutiny of capital cases. It's too bad we can't televise the closed-door discussions of federal as well as state prosecutors who target people for death row.

According to a Department of Justice (DOJ) study released last year, racial minorities constitute about 80 percent of federal death row inmates, because prosecutors (not judges or juries) have singled out minorities for death: About 80 percent of the cases in which federal prosecutors sought the death penalty in the past five years involved minority defendants. The DOJ study also found geographical disparities in the application of the death penalty: Five jurisdictions were responsible for 40 percent of cases sent to the DOJ for approval to seek the death penalty, with Texas leading the way.

Former Attorney General Janet Reno, who was "troubled" by these figures, acknowledged that "minorities are overrepresented in the federal death penalty system"; and in one of his last gestures as president, Bill Clinton stayed by six months the execution of convicted drug dealer Juan Garza (a Hispanic from Texas). The six-month stay will probably not save Garza, but it will ensure that a white man, Timothy McVeigh, will be the subject of the first federal execution in 38 years.

McVeigh, the Charles Manson of his day, will not evoke much sympathy, yet this is an odd time for the federal bureaucracy to reinstate the death penalty. Evidence mounts that people are wrongly convicted of capital crimes almost routinely. The facts are familiar but still bear repeating.

Since the mid-1970s, 96 people sentenced to death in this country have been exonerated and freed--about 13 percent of all people executed in the United States in the same period. A recent study by James Leibman of Columbia University found a devastatingly high reversible-error rate of 68 percent in trials that ended in death penalties. Die-hard supporters of capital punishment perversely insist that evidence of a high error rate is proof that the system works, because it shows that mistakes are uncovered. Put aside questions about errors that remain concealed because appeals have been drastically curtailed. Imagine, instead, if hospitals made potentially fatal errors in treating 68 percent of their patients. Would anyone sensible or humane remain content with our system of health care? Would any death penalty advocate who lost years of his own life in prison for a murder he did not commit point to his tenure on death row as proof that the system worked?

Not everyone is so crazy or cruel. The late Supreme Court Justice Thurgood Marshall once optimistically opined that Americans would cease to support the death penalty if they were informed of its gross inequities, and recent exposes of wrongful convictions have proved him partly right. Support for capital punishment has declined dramatically, from about 75 percent in 1997 to 64 percent today, the lowest level of support in 19 years.

In this climate, limiting if not abolishing the death penalty is, at least, conceivable. Even a few conservative commentators have begun belatedly to realize that if you don't trust the government to deliver the mail, perhaps you shouldn't trust it to select people for death. (The conservative Rutherford Institute has called for a federal moratorium on the death penalty.) George W. Bush is unlikely to discover flaws in the death selection system, although he is better positioned for a conversion experience leading him to oppose capital punishment than most Democrats. But Congress could call a halt to federal executions. The proposed National Death Penalty Moratorium Act of 2001 would suspend federal executions and establish a commission to review the administration of the death penalty at the state and federal level.

Introduced by four liberal Democratic Senators (Russell Feingold, Carl Levin, Paul Wellstone, and Jon Corzine), this bill probably enjoys about as much chance of success as a condemned man seeking clemency from the Texas Board of Pardons and Paroles. It's especially hard to imagine Congress taking any action against the death penalty before the killing of Timothy McVeigh. But it's even harder to justify support for capital punishment in the face of overwhelming evidence that it is applied unfairly and in bad faith.

"Why shouldn't we kill people who deserve to die?" proponents of the death penalty ask. The question is dramatic but irrelevant, and people are slowly beginning to realize why we shouldn't kill people whom the death penalty bureaucracy has selected to die.