{"id":54206,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/to-see-or-not-to-see.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"to-see-or-not-to-see","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/to-see-or-not-to-see.html","title":{"rendered":"To See Or Not To See?"},"content":{"rendered":"\n
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TO SEE OR NOT TO SEE?: Why Timothy Mcveigh’s Execution Should Be Televised <\/h1><\/td>\n <\/tr>\n

By AUSTIN SARAT<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Apr. 05, 2001<\/td>\n\n <\/tr>\n <\/table>\n

On May 16, Timothy McVeigh is scheduled to be executed, and he is determined not to go quietly. Instead, he is intent on managing the timing and terms of his own execution \u0097 first ending all his legal appeals and then, recently, asking that his execution be televised. <\/p>\n\n\n\n\n
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Whatever one thinks of McVeigh or these recent efforts, the question he has raised about televising executions is a serious one. And perhaps he is right that his execution, indeed all executions, should be televised. If America is going to continue to use the death penalty, it should neither be shrouded in mystery nor hidden from view.<\/p>\n\n\n\n<\/b>

The History of Executions, Public and Semi-Private<\/p>\n\n\n\n

Historically, executions were not only open to all, they were major public spectacles. But since the middle of the twentieth century, executions in the United States have been moved inside prison walls. <\/p>\n\n\n\n

The change from public to semi-private executions has not been an uncontroversial one. Over the years, prohibitions on televising executions have been subject to, and survived, numerous constitutional challenges. But in a series of cases dating back to 1890, courts have turned away most claims that executions must be public. <\/p>\n\n\n\n

Courts have generally taken the view that, as Supreme Court Justice John Marshall Harlan put it, “[w]hether a convict sentenced to death shall be executed before or after sunrise, or within or without the walls of the jail, or within or outside of some other enclosure…are regulations that do not affect his substantial rights….These are regulations which the legislature, in its wisdom, and for the public good, could legally prescribe….” As a result, it is up to legislatures, state and federal, to decide if executions shall be public, and shall be televised. <\/p>\n\n\n\n<\/b>

The Arguments For and Against Televising Executions<\/p>\n\n\n\n

While the prospect of televising executions is discomfiting for both supporters and opponents of capital punishment, the time has come to reconsider whether they should be broadcast. <\/p>\n\n\n\n

Strikingly, arguments against televising the death penalty have been put forward by those on both sides of the question of whether we should have such a penalty at all. Supporters of the death penalty oppose televising executions because they fear that doing so will arouse sympathy for the condemned person, while allowing viewers to ignore the suffering he or she caused. <\/p>\n\n\n\n

Opponents of the death penalty believe that televising executions (especially those that take place by lethal injection) would give a false and misleading picture \u0097 conveying the impression that the cruelty of the death penalty is confined to the few minutes of the execution itself, when in reality it also extends to the years of psychological suffering spent on death row. Still others find the prospect of watching executions ghoulish, and worry that televising them would create an unacceptable, public spectacle.<\/p>\n\n\n\n

While no one can know how seeing that deed on television will influence the death penalty debate, or whether those who watch will be enlightened or demeaned by what they see, one thing seems certain: As an historical matter, limiting the visibility of lawfully-imposed death helped transform execution from an arousing spectacle of vengeance into an easily ignored matter of mere administration. Refusing to televise executions helps keep the machinery of capital punishment running.<\/p>\n\n\n\n<\/b>

Why Executions Are Inherently Public<\/p>\n\n\n\n

Whether televised or not, an execution is always public by its very nature. The death of a condemned person is in no sense just his own death; it is also a killing by the state. Thus, the question of whether executions should be televised is more than just a question of manners and taste (as, for example, the question of whether to televise a suicide’s self-videotape might be); it is also a question of democracy. <\/p>\n\n\n\n

Executions are public in the sense that they are a state-imposed punishment for an offense against the law. They are also public in the sense that their conduct is regulated by public norms. And, ghoulish or not, the public is always present at an execution as an authorizing audience, unseeing and unseen, but present nonetheless. <\/p>\n\n\n\n

Every time the state kills, it kills in our name. The seemingly bureaucratic act of a few state officials is our deed as well. Hiding the deed does not change this fact. <\/p>\n\n\n\n

This is the haunting reality of state killing in a constitutional democracy. Whatever McVeigh’s motives, his request to allow his execution to be televised provides an occasion for all of us to acknowledge and take responsibility for this reality. <\/p>\n\n\n\n\n<\/span>\n\n\n

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\n\n\n<\/a>\nAustin Sarat is William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College. He is the author of When the State Kills: Capital Punishment and the American Condition<\/u>, forthcoming from Princeton University Press.\n

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