THE COMING ERA OF FEDERAL EXECUTIONS? Legal Challenges We Can Expect If More Federal Defendants Share Mcveigh's Fate

Last week, a federal court set an execution date for convicted mass murderer Timothy McVeigh; the nation prepared to inaugurate a President who, as Governor of Texas, presided over the modern record for annual executions by a single state; and the Senate appeared on the verge of confirming an Attorney General who, as Senator from Missouri, torpedoed the nomination of a state supreme court justice because he had voted to overturn roughly one in five death sentences to come before his court.

The confluence of these events gives rise to the very real possibility that, for the first time in nearly 40 years, the federal government will soon start executing people again. This is cause for reflection. Why do we countenance the death penalty? And what legal challenges await the federal government as it seeks to revive a punishment abandoned in the 1960s?

Politicians consistently obfuscate the reasons for having a death penalty. In one of the more stunning moments of the presidential debates, both George W. Bush and Al Gore agreed on the legal and moral justification for the death penalty. Each said that capital punishment serves as a deterrent.

I doubt either candidate believes this highly counter-intuitive proposition. Most capital murders are committed either by stone cold killers or people with deep emotional disturbances and limited mental capacities. Many capital crimes are committed in a state of insobriety. Death sentences, meanwhile, remain rare, and actual executions are even rarer — and, moreover, are delayed on average more than 10 years after conviction. It defies logic to think that the remote possibility of a long-delayed execution deters the kind of people who commit capital crimes. And I am aware of no credible scientific evidence to support a deterrence theory.

Timothy McVeigh embodies the real reason to have a death penalty. Some conduct is so brutally destructive of the social compact that society has a moral and legal right (some might say a duty) to extinguish the life of the perpetrator.

As prominent political philosophers have argued for centuries, it can be a profoundly moral act to declare some actions beyond the bounds of humanity and, thus, punishable by death. That is why executing Eichmann was justifiable. That is why executing McVeigh is justifiable as well. And politicians only degrade this ethical rationale for the death penalty by hiding behind the pretense of deterrence.

But to recognize that, in theory, the death penalty is easily justified (as well as constitutional) does not answer the unavoidable question of whether we have the ability to design a system of capital punishment that meets with our competing ideals of accuracy, equality, and fairness. The new federal death penalty statute creates an exquisite case in point.

The current federal death penalty system was designed by several of the smartest legal minds in the country, including Seth Waxman, the outgoing Solicitor General who, ironically, cut his teeth as a lawyer defending capital cases. These death penalty skeptics designed a system filled with guidelines, review committees, and review of the review committees — all intended to filter out the possibility of mistake or inequity. Importantly, the system includes final review by a special committee inside the Department of Justice, and at a distance from the "line" prosecutors who make the initial decisions whether to seek the death penalty.

Persistent Racial Issues with the Death Penalty: the Court's McCleskey Decision

But for all the careful planning, by DOJ's own analysis, the federal death penalty remains fatally flawed. As is evident from a report that DOJ released last fall (which regrettably received little media attention amid the white noise of the election campaign), the federal death penalty system is deeply infused with racial bias.

The issue of race discrimination in the death penalty is not new. In the 1987 case of McCleskey v. Kemp, the Supreme Court, by a 5-4 vote, rejected an equal protection and Eighth Amendment (cruel and unusual punishment) challenge to Georgia's death penalty statute that raised this issue.

The challenge was based on a state-of-the-art statistical study showing that murderers of white people were 4.3 times more likely to get the death penalty than comparable murderers of blacks. Put simply, the study showed that Georgia's capital case prosecutors and juries valued white lives far more than black lives.

But Justice Lewis Powell, the author of McCleskey and the swing vote in the case, was unimpressed with these statistics. In his view, if Georgia's death penalty really were discriminatory, then the statistical study would have shown that a disproportionate number of Georgia's death penalty defendants were black. Powell took considerable comfort in the fact that, instead, the only significant racial disparity in the Georgia system correlated not with the race of capital defendants, but rather with the race of their victims.

In other words, exactly the kind of evidence of racism that would have convinced Powell of the Georgia death penalty's unconstitutionality in McCleskey has now emerged unmistakably with respect to the federal death penalty. Thus, if Powell were still on the Court, one would think he would vote to declare the federal death penalty unconstitutional — and at least four of the current Court's members might well agree.

Take Justice Powell's home state of Virginia. Since the reinstitution of the federal death penalty in 1988, DOJ has sought to impose the punishment on 60 Virginia defendants. Of this group, 53 were black, 2 were Hispanic, and 5 were white. Notably, the 5 white defendants were in a class by themselves. They were indicted for espionage.

Admittedly, these are raw numbers. Perhaps a part of this glaring racial disparity can be accounted for by decisional factors unrelated to race. But can anyone seriously argue that race did not play an invidious role in how the federal government chose to prosecute potential capital cases in Virginia?

In 12 years, not a single white defendant in a non-espionage case was thought to deserve the death penalty, while 55 minority defendants were. Despite having worked as a federal prosecutor and holding federal law enforcement and prosecutors in generally very high regard, I find that's far more than I can swallow.

Apparently, the Clinton Administration felt the same way. In 1992, Clinton won office in part by rushing back to Arkansas to preside over the execution of a borderline mentally retarded person. But recently, he quietly pushed off the federal execution scheduled on his watch (Juan Garza's) into the Bush Administration.

The new President is a staunch proponent of the death penalty. He also avows a deep devotion to racial justice and equality. One of the first great challenges of George W. Bush's presidency will be to reconcile these two irreconcilable commitments — that is, to come to terms with the fact that Timothy McVeighs of the world deserve to die, yet the system that would put them to death remains, despite the best of intentions, seemingly irreparably flawed.