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Monday, Jun. 11, 2001

Today, on the date of Timothy McVeigh’s execution, we bring you an interview with Austin Sarat, author of the thought-provoking, passionate book When the State Kills: Capital Punishment and the American Condition (Princeton Univ. Press 2001) that was published on April 26. Sarat has responded to a series of written questions posed by FindLaw columnist Julie Hilden. An excerpt from When the State Kills is available on this site.

Professor Sarat teaches law and political science at Amherst College — where he teaches, among other subjects, a course called "Murder," which examines the treatment of murder in law, literature, and popular culture.

Among the books Sarat has previously published is Divorce Lawyers and Their Clients, of which he is co-author. He has also edited or co-edited other works on the death penalty and other topics, notably The Killing State: Capital Punishment in Law, Politics and Culture.

Professor Sarat is also a contributor to FindLaw’s Writ; his columns may be found in the Contributors section of the site’s archive.

Q: What do you think of the recent controversy about the FBI's failure to provide documents to Timothy McVeigh and his lawyers, and Attorney General Ashcroft's reaction? Does the controversy have more general implications for how we should think about the death penalty?

A: The last minute revelation of the FBI's failure to turn over more than 3,000 pages of documents in the Timothy McVeigh case and the decision by the Attorney General to delay his execution came as a shock to the entire nation and, was a particular blow to the victims and survivors of the Oklahoma City bombing.

Because McVeigh already has admitted his guilt, and because according to Judge Matsch, the FBI documents did not satisfy the legal requirement that there must be a "reasonable probability that the disclosure of (new) evidence (after the completion of a criminal proceeding) would have changed the outcome of the proceeding," this episode seems like yet another instance of justice delayed by a mere technicality.

The FBI’s negligence should be a caution to everyone about the inadequacies, unreliability, and frequent breakdowns in the death penalty system. If documents are misplaced, lost, or hidden in the most high profile death penalty case of the decade, one can only imagine what happens in the "routine" death penalty case.

Q: Timothy McVeigh’s execution is scheduled for the day this interview will appear. What thoughts will you have when it happens?

A: I will think first about all the pain and suffering McVeigh caused. I’ll think about how misguided he is. McVeigh is hardly a sympathetic character. Indeed, if there was ever anyone who deserved the death penalty, Timothy McVeigh would likely be that person.

But, I will also think that the execution of Timothy McVeigh tells us little about the system of state killing in the United States.

Extrapolating from McVeigh’s execution, one might conclude that people who are sentenced to death and are executed in the United States are the most dangerous of dangerous sorts. But of course they’re not.

The three most important factors in predicting whether or not someone will be prosecuted as a capital murderer and whether or not they’ll be executed are: First, where did they commit the crime? Second, what is the race of their victim? And third, whether or not they’re poor. None of these factors really played a role in the McVeigh case.

Q: What do you think Americans in general should think about when they think about McVeigh’s execution?

A: I would suggest that they think about whether executing McVeigh makes us a safer society, a saner society, a society that is closer to coming to terms with the sources of violence.

Will we be a society that is closer to realizing its own ideals? In my own view, McVeigh’s execution does little to make us a safer society, a saner society, or a society that’s a better place for people to live.

A: Actually, I’m not sure that McVeigh’s crime and execution have contributed to what you call a rightward shift in Americans’ attitudes towards the death penalty. In fact, recently at least, we’ve seen a change in public attitudes towards the death penalty.

Public support for the death penalty, as reported in the recent Washington Post poll, has declined from its historic highs, near 80%, to slightly over 60%. When Americans are presented with realistic alternatives to capital punishment, like life imprisonment without parole, support for the death penalty plummets even further.

While Americans overwhelmingly endorse the execution of Timothy McVeigh, increasingly they are coming to have doubts about the death penalty.

In When the State Kills I label these doubts the "new abolitionism." Unlike traditional abolitionist politics, which focused on abstract, moralistic ideals, the new abolitionism focuses on whether or not we can administer a system of state killing which is compatible with some crucial American values: equality, fairness, due process of law.

Q: Early in your book, you describe the defense’s strategy to try to avoid the death penalty in Timothy McVeigh’s trial. Why do you think that strategy failed with jurors?

A: McVeigh’s strategy to avoid the death penalty failed quite predictably. In most death penalty cases, in the penalty phase, good defense lawyers try to humanize the defendant to get the jurors to see that the defendant is more than his act, that there is something redeeming about him, that the defendant’s life is more complicated than can be explained by his single, even heinous, crime.

In McVeigh’s case, his highly qualified lawyers tried to explain to the jury that in order to understand what happened in Oklahoma City, they had to understand that that tragedy was a response to Waco.

An argument that says because of a tragedy in one place, a person is justified in imposing tragedy in another place hardly seems like a winning argument. McVeigh’s wishes were carried out by his defense team. He wanted to use his trial to make a political statement, and he got his way.

Q: Do you think any other kind of appeal to jurors might have been more successful?

In McVeigh’s case, the crime was overwhelming in its magnitude. McVeigh was easily characterized as a dangerous individual. His own mitigation strategy in the penalty phase might have convinced people that he was a dangerous individual. And, there was nothing in McVeigh’s background or circumstances that produced a sympathetic case in mitigation.

Q: How could we improve juries’ decision making at the penalty phase of a death penalty trial?

The jurisprudence of capital punishment imposes a tremendous burden on jurors. Since there are no mandatory capital punishments, jurors are always left to make the excruciating decision about whether or not someone will live or whether or not someone will die.

The key to improving juror decision making in the penalty phase of a death penalty trial has less to do with formal procedures than with the quality of lawyering.

When defense counsel is neither skilled in dealing with capital cases nor diligent in doing the leg work necessary to present a mitigation case, jurors are left without the help they need to make rational decisions in death cases.

Only with effective counsel can jurors have all the information they need to make such decisions.

Q: DNA evidence has been an important trigger for many people to begin to favor death penalty moratoria in various states. But DNA testing can be a weapon for pro-death penalty advocates, too — for it can promise much more certain proof of guilt. In a state that imposes a moratorium, checks DNA evidence for everyone on death row, and then starts executing people, executions may become all the more difficult to fight. Taking the long view, do you think DNA testing will aid or undermine the imposition of the death penalty?

A: DNA has confirmed that there are grave imperfections in the system through which we decide who will live and who will die. But DNA is not a magic bullet. In most death cases, DNA is not available as evidence on either side.

Moreover, the problems that have fueled the movement for death penalty moratoria in various states in the country are intractable. Because the law requires juries to exercise discretion in deciding who will die, our capacity to administer a system of state killing which is not arbitrary or discriminatory ultimately depends upon the capacity of citizens of the United States to overcome their prejudices, their biases.

Q: Along the same lines, many death penalty opponents are horrified not by the penalty itself, but by the system that imposes it. If it were possible to ascertain guilt virtually perfectly, and to inflict death painlessly, would you still oppose the death penalty, and if so, why? Also, why do you think many contemporary opponents have focused on the "machinery of death," as Justice Blackmun put it, rather than the penalty itself?

I can’t imagine a system in which it would be possible to ascertain guilt virtually perfectly and to inflict death in a way that’s compatible with the highest values and aspirations of our political and legal system. But even if it were possible to do so, and to inflict death painlessly, I would still oppose the death penalty.

Because it is final and irrevocable and demands righteousness and certainty, the death penalty is incompatible with democracy. The spirit of democracy is the spirit of reversibility. The spirit of democracy is the spirit of an engagement which is experimental and tentative. There is nothing reversible, experimental, or tentative about the death penalty.

Yet, as I argue in my book, these are all abstract issues, and there is nothing abstract about capital punishment. Increasingly opponents of the death penalty have realized that it is time to move away from abstract, philosophical, moral questions to tackle the realities of state killing

The question we must ask is not what the death penalty does for us, but rather what does the death penalty do to us. .

Q: Many arguments for, and against, the death penalty are familiar to us. In the course of your analysis of, and research on, the issues, what arguments or issues came up that you found new, unusual, or striking?

Here I would point to what I would call the deep contradictions in the system of state killing. I am not sure that when I started to write the book, started to do the research for the book, I really understood the ways in which capital punishment is sustained by, or exists in, such contradictions, like the contradiction between using state killing to satisfy victims’ desires for vengeance while seeking to execute humanely, quietly, painlessly.

Closely examining the contradictions on which the system of state killing is based is an important activity and one which, when I began my work, wasn’t at the center of my concerns.

Q: In When the State Kills, you discuss several movies’ depictions of the death penalty — notably, those in Dead Man Walking and The Green Mile. What’s wrong, and right, in your view, with the way Hollywood is depicting the death penalty?

At the same time, most Hollywood portraits of capital punishment focus, as one might predict given the imperatives of engaging and satisfying an audience, only on the question of whether a particular individual deserves to die.

They do not invite their viewers to think of themselves as political actors with the responsibility to decide whether or not we ought to have capital punishment in the United States. Instead they invite us to imagine ourselves as jurors in the penalty phase of a capital case, required to decide whether this or that person on death row deserve to die.

They bracket the most important questions, the political, legal, and cultural questions that ought to lead Americans to reject state killing.

Q: Last election, both now-President Bush and Al Gore took pro-death penalty stances. More than this, the issue barely seemed to be discussed by the campaigns. Is there a way to inject death penalty issues into campaigns again, despite the new conventional wisdom that candidates "need" to be pro-death penalty? Are you aware of any political candidate who has made an anti-death penalty stance a central part of his or her campaign?

A: It is still the case in the United States that to run for political office and oppose the death penalty is a grave risk. Yet given changes in public attitudes, this risk is diminishing.

Candidates embrace the death penalty as a way of showing that they’re tough on crime, that they won’t coddle criminals. However, as concerns about equality, fairness, actual innocence, and due process of law continue to percolate, as those concerns continue to plague Americans, it will become possible for major candidates for public office to speak those doubts and to speak out in opposition to state killing.

When Governors like Gov. Ryan, when legislatures like the legislature of the state of New Hampshire, hardly known for its radicalism, either impose a moratorium or vote for abolition, it tells us that something important is happening. Today there are new political possibilities in the struggle against state killing.

Q: Professor Sarat, do you have any closing thoughts for us that these questions have not encompassed?

My book is not a rehashing of the old, familiar arguments about state killing. I hope readers will be drawn to it by its combination of political, legal, and cultural analysis. I hope they will be engaged by the portrait of the day-to-day world of state killing - a portrait drawn by examining the impact of the victims’ rights movement on state killing and the methods of execution we use, by taking my readers with me to a death penalty trial in Georgia and letting them hear the voices of jurors who have sat in capital cases and of lawyers who struggle to save the lives of persons condemned to die, and by examining how state killing is portrayed in popular culture and whether executions should be televised.

Julie Hilden, the interviewer, is a FindLaw columnist, attorney and author.

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