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DEATH PENALTY POLARIZATION: As Attorney General Ashcroft Calls For "Closure" With Mcveigh's Execution, Justice Ginsburg Joins The Moratorium Movement


Tuesday, Apr. 17, 2001

Like the proverbial ships passing in the night, Attorney General John Ashcroft announced last week that the government would allow the families of victims to view the execution of Oklahoma City bomber Timothy McVeigh, while Supreme Court Justice Ruth Bader Ginsburg for the first time called for a death penalty moratorium.

Both actions reflect deep and conflicting truths about the death penalty that make it all but certain this issue will remain among the nation's most contentious over the next several years.

The Dubious Case for Televising Executions

During the presidential debates, both George W. Bush and Al Gore were asked why they support the death penalty. Both gave the politician's stock answer: although it would be wrong to have the death penalty for the purpose of exacting vengeance, the death penalty is justified and appropriate because it deters future capital crimes.

The time has come to give up on this tired canard. The case for deterrence is exceedingly weak. No credible evidence suggests that prospective murderers think twice because, if they get caught, they may someday face execution as opposed to life without parole, the usual alternative punishment,

Indeed, the truth is very nearly the opposite of what both candidates claimed. As confirmed by the Bush Administration's decision to let victims' families watch Timothy McVeigh die, the real reason the United States (in contrast to every other western nation) insists on having a death penalty is the all-too-human desire for vengeance. Why else provide closed circuit television viewing of McVeigh's execution? And why else grant access only to his victims' families (who may want to exact retribution), and not to all of us (including possible future criminals who might theoretically be deterred)?

Why Ashcroft's Reference to "Closure" Really Means Vengeance

Attorney General Ashcroft has explained that television viewing is designed to provide closure to the victims' families. This is somewhat misleading. Watching the execution of the person responsible for killing a spouse, a child, or sibling will not complete the grieving process. The pain of such losses never completely disappears. So it is odd to suggest, as Ashcroft has, that observing the death of another may somehow stop the pain.

Also, for many, what completes grieving is forgiveness — and an execution leaves no one alive to forgive. For some victims' families, then, the execution will not provide closure, but rather will make it impossible.

Why Televising For Victims' Families' Alone is The Wrong Choice

Deciding what role, if any, vengeance should play in our system of justice is no easy matter and I won't attempt the task here. I'll simply note for the moment that televising the McVeigh execution for only the victim's families — that is, catering to a desire for vengeance — has at least two potential costs, one symbolic and one substantive.

Vengeance is a highly personal emotion. As the Lord is quoted in Paul's letter to the Romans: "Vengeance is mine. I will repay." But our system of justice is not individualistic. It is communal. The federal government prosecuted McVeigh not on behalf of his victims or their families, but on behalf of the People of the United States. And it is the People of the United States who will be putting him to death.

The best justification for the death penalty is that it may serve as a community's affirmative moral statement that some conduct is so evil its perpetrators deserve to die. The risk in providing McVeigh's victims' families unique access to his execution is that, symbolically at least, it undermines this communal sense of justice and further clouds our thinking about the appropriate basis for capital punishment.

Justice Ginsburg's Alternative Death Penalty Approach

Just as importantly, the more we view the death penalty as accomplishing the private goals of the victims' loved ones, as opposed to the public goals of society as a whole, the more likely we are to accept imperfections in the system of capital punishment. And this, of course, is where Justice Ginsburg's declaration in favor of a death penalty moratorium comes into play.

In Justice Ginsburg's view, every death penalty case that has come before her at the Supreme Court shares one characteristic: the defendant had substandard trial counsel. And according to Ginsburg (echoing the American Bar Association), it is fundamentally wrong for the difference between life and death to turn so exclusively on whether a capital defendant can afford a competent lawyer.

In coming to her epiphany, Ginsburg is following a well-trodden path. Justice Harry Blackmun's experience with the fairness of death penalty prosecutions led him from his original position of acquiescence in the death penalty to one of complete abolitionism. The same grim exposure has pushed Justice John Paul Stevens to near-abolitionism. And one gets the increasing sense that Justices David Souter and Stephen Breyer are not lagging far behind.

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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