A month before death

A massive foul-up by the FBI has provided an unexpected extra month. Attorney General John Ashcroft could hardly have done less than postpone the execution of Timothy McVeigh for 30 days, unless he wanted to keep conspiracy theorists busy for the next several decades. Defense attorneys now will have time to study 3,000 documents the agency had neglected to provide.

This extra month is being put to use mainly to denounce the FBI’s inefficiency and try to figure how or why the supposedly best law-enforcement agency in the world could have mislaid all those documents. A better use of this extra month would be to take a fresh look at the death penalty itself.

Mr. Ashcroft is a dedicated, outspoken advocate of capital punishment, like many politicians including President George W. Bush, former President Bill Clinton and former Vice President and former presidential nominee Al Gore. But the death penalty has been losing its popularity. Western Europe has abandoned it, and the United States stands almost alone among civilized nations in executing convicted prisoners.

Recent opinion polls show that while a bare majority of Americans continues to support the death penalty, nearly three-quarters favor a moratorium until questions about fairness can be studied. Surveys by the Columbia University Law School and The Chicago Tribune have shown that inmates often have been sent to their death despite serious errors and shortcomings in legal representation and presentation of evidence. Ninety-five people on death row as far back as 1973 later have been found innocent and released due to new DNA evidence alone. Abuses have been especially numerous in President Bush’s home state of Texas, which leads the nation in executions.

.

The McVeigh execution, first scheduled for today, seemed to death-sentence advocates an ideal case to resume federal executions after a lapse of nearly 40 years. Scarcely anyone can doubt Mr. McVeigh’s guilt, and he himself has boasted that he exercised a citizen’s right to blow up the federal building in Oklahoma City and dismissed the deaths of the children killed as mere “collateral damage.” Surveys show that even many opponents of the death penalty would justify it in the case of massive terrorist crime. The case was considered a model of proper prosecution.

Much of that was changed last week with the FBI’s admission that it had failed to furnish evidence that could bear on the unanswered question as to whether Mr. McVeigh acted alone. Instead of a perfect, model case, the McVeigh conviction was exposed as just another standard capital case, containing the kind of errors that might have gone unnoticed and therefore unresolved were it not so notorious.

When Mr. Ashcroft announced the postponement last Friday, he was peppered with tough questions. The toughest question of all came from Jon Sawyer, the Washington bureau chief of his home-state newspaper, the St. Louis Post-Dispatch: “Mr. Attorney General, does the fact that these materials, these documents, have come to light just six days prior to the scheduled execution, and might have come to light six days after the execution, raise any concerns in your mind about the finality of the death penalty?”

Mr. Ashcroft answered with a flat “No.” He said there was no doubt of Timothy McVeigh’s guilt in his mind or anybody else’s in the worst terrorist attack in U.S. history. But that, of course, doesn’t begin to answer the question of how the death penalty is applied in the United States.

And it doesn’t get into the question of what Mr. McVeigh’s death – no matter how much deserved – will accomplish. The spectacle of lethal injection is said to promise a measure of relief and satisfaction to the survivors and relatives who will watch, either in person or over closed-circuit television. Most, but not all, want to see him die. Retribution – “an eye for an eye” – often is cited as justification for the death penalty. Authorities try to distinguish retribution from revenge, a far harsher term, but the two bear close resemblance.

Deterrence? This, too, is sometimes given as a reason for the death penalty. But in a terrorism case, execution, far from deterring other potential terrorists, transforms the convicted terrorist into a martyr, whose martyrdom will inspire others to do the same. Life imprisonment may seem to some to be letting the criminal off easy, but as a criminological measure it would make more sense.

What’s next in this strange and horrible McVeigh case? Will he die, as now scheduled, on June 11? Will the much-touted secure closed-circuit television remain secure? Or will skilled hackers steal it and get it broadcast to everyone? How will the public react? Will more evidence turn up, either before June 11 or afterward, casting further doubt on prosecutorial perfection?

Finally, will a political leader step forward and lead a public demand for a national moratorium on the death penalty and an American movement to join the rest of the civilized world in questioning this deeply flawed custom?