BOOK EXCERPT FROM:

When the State Kills:
Capital Punishment and the American Condition

By AUSTIN SARAT

INTRODUCTION: "IF TIMOTHY MCVEIGH DOESN'T DESERVE TO DIE, WHO DOES?"

"Political power . . . I take to be the right of making laws with the penalty of death."
--JOHN LOCKE, Second Treatise of Government

Monstrous Deeds, Cold-Blooded Killers, and the Politics of Capital Punishment

April 19, 1995, was a bright, clear, spring day in Oklahoma City, the kind that refreshes and uplifts and makes doing the mundane tasks of daily life seem almost effortless.

Early that morning Sharon and Claude Medearis woke up to their normal routine. Over coffee, they talked about Claude's plans for the day: a trip to El Paso after a stop at the office downtown, where he worked for the United States Customs Service. After breakfast, Sharon gave him a kiss good-bye and saw him off to work.

Elsewhere in town, Bob Westberry and his wife Mathilda started the morning more sadly, remembering that the next day would mark the seventh anniversary of their oldest daughter's death. With that somber thought in the background, Bob went to work at the Defense Investigative Service downtown.

About the same time, Linda Florence, mother of eighteen-month-old son Tray, left for her job as a secretary at the Oklahoma City office of the Department of Housing and Urban Development. At roughly the time she arrived, one-year-old Erin Langer was dropped off by her father at the America's Kids day care center.

Bob Westberry, Claude Medearis, Linda Florence, and Erin Langer never returned to their homes or loved ones. At 9:02 A.M. on that April morning they and 164 others were killed by a massive explosion that gutted the Alfred Murrah Federal Building. Investigators quickly determined that the explosion was caused by a powerful bomb.

Suspicion first focused on overseas groups. Was the bombing the work of Arab terrorists, striking deep in America's heartland? As the New York Times reported, "So far no conclusive evidence has emerged that Arabs played any role in the bombing. Indeed, Federal officials have described the two known suspects as 'white,' a racial designation that seems to leave open their ethnic origin. Yet the speculation of Muslim involvement continues, fed by some news reports that have not been confirmed."

That speculation proved unfounded when, three days after the bombing, Timothy McVeigh was arrested and charged with murder in the worst act of domestic terrorism in the history of the United States.

Two images, broadcast widely and repeatedly to the nation and the world, provided the frame within which many came to think about the bombing and its perpetrator.

The first, a photograph of a firefighter tenderly carrying the lifeless body of one-year-old Baylee Almon from the charred ruins of the Murrah building, captured the depth of McVeigh's monstrous deed. This act took lives indiscriminately, killing innocent children. The photograph invited the question, "What kind of person could commit such a crime?"

The second photograph gave us an answer. The initial glimpse of McVeigh came as he was being escorted out of the Noble County Courthouse in Perry, Oklahoma, where he was held prior to his arraignment in Oklahoma City. We saw McVeigh, dressed in an orange prison jumpsuit, in handcuffs and leg irons, surrounded by people wearing FBI jackets.

Confronted by a crowd of angry citizens, McVeigh, his demeanor steely stern, showed no emotion. He quickly became the personification of the cold-blooded killer, a living, breathing endorsement of capital punishment.

No sooner had the dust settled at the site of the bombing than the politics of capital punishment began. Newspapers across the country reported President Clinton's first comments, "Let there be no room for doubt. We will find the people who did this. When we do, justice will be swift, certain and severe. These people are killers, and they must be treated like killers."

Joining the president, Attorney General Janet Reno added, "We cannot tell how long it will be before we can say with certainty what occurred and who is responsible, but we will find the perpetrators and bring them to justice."

Without waiting for the detailed internal case-by-case review mandated by Justice Department procedures, Reno made clear her view of what justice required. She told the press "Eighteen U.S.C., Section 844, relates to those who maliciously damage or destroy a Federal building. If there is a death, if death occurs, the death penalty is available, and we will seek it."

A day later the attorney general said of the then still unknown perpetrators, "We will find them, we will convict them, and we will seek the death penalty against them." Ordinary citizens also took up this equation of justice with state killing.

"His children should be shot," someone shouted from a crowd of several hundred who had gathered outside the Noble County Courthouse to see McVeigh. As one man who witnessed this scene later explained to a reporter, "They should give him a taste of his own medicine and put him inside a bomb and blow it up."

Two years later, as McVeigh's trial unfolded, a USA Today/CNN/Gallup poll reported that 61 percent of Americans thought that McVeigh should get the death penalty.

Yet commentators also noted that "an overwhelming percentage of Americans feel that executing McVeigh is simply not enough. The law's prescribed punishment satisfies neither our sense of justice nor does it requite our desire for vengeance."

McVeigh on Trial

Not surprisingly, the McVeigh trial was extraordinary. In response to the anticipated difficulty of finding an unbiased jury in Oklahoma, it was moved to Denver. Coming in the wake of other sensational trials, including the O. J. Simpson case, the presiding judge, Richard Matsch, refused to allow this trial to be televised and imposed a gag order limiting what participants in the case could say to the press.

Nevertheless, in a move indicative of the increasing power of the victims' rights movement in the United States, the judge made special arrangements for a closed-circuit broadcast of the trial to victims and survivors in Oklahoma City.

A team of experienced and respected federal prosecutors was assembled to handle the case against McVeigh, who was charged in an eleven-count indictment for murder and conspiracy. An equally talented and respected group of six attorneys--headed by Stephen Jones--defended him. Jury selection began on March 31, 1997, and took nearly a month. Yet the trial itself was conducted expeditiously.

As the government's case proceeded, prosecutors called people close to McVeigh to testify against him. Witnesses revealed that he had divulged detailed plans to bomb the Murrah Building months before the attack and had devoured the antigovernment novel, The Turner Diaries, which describes the destruction of a federal building as a way to spark a civil war.

The government also produced rental documents, phone records, and witnesses who identified him as the man who rented the Ryder truck used in the bombing under the alias Robert Kling. Other evidence pointed to McVeigh's efforts to buy and steal bomb-making supplies.

The defense countered by trying to show that McVeigh was swept up in a rush to judgment and that the government's case was based on the testimony of lying, opportunist witnesses, and scientific evidence tainted by FBI mishandling and lab contamination.

The jury deliberated for more than twenty-three hours over four days before finding McVeigh guilty on all counts of the original indictment.

President Clinton, again signaling the importance of victims in the politics of crime and punishment, immediately hailed the verdict as a "long overdue day for the survivors and the families of those who died in Oklahoma City." Many of those survivors and families remained focused on ensuring that McVeigh was sentenced to death.

"Jannie Coverdale, who lost two young grandsons in the bombing, confessed that she felt mixed emotions. 'This is bittersweet,' she said. 'After all, this is a young man who has wasted his life. I'm glad they found him guilty, but I'm sad for him, too. I feel sorry for him. He had so much to offer his country.' She added, 'I want him to get the death penalty, but not out of revenge. It's necessary. I haven't seen any remorse from Timothy McVeigh. If he ever walked the streets, he would murder again. I don't want to see that. '"

Others who were less ambivalent also focused on the issue of capital punishment. "'He's not human,' said Charles Tomlin, who lost a grown son in the bombing. 'This is a monster that blew up a building.'"

"Peggy Broxterman, who listened to the verdict in an auxiliary courtroom, called it an 'absolute thrill,' but said vindication for the death of her 43-year-old son and others wasn't complete. 'It's not over until he's dead,' she said."

After McVeigh's conviction, his trial entered the so-called penalty phase in which the jury that had convicted him was asked to decide on his sentence. In the federal system, during the penalty phase the jury is presented with aggravating and mitigating factors on the question of execution. If it decides on the death penalty, the judge cannot overrule its decision.

As the trial entered the penalty phase the key question was what role the survivors and the families of those killed would play. How much of their stories would they be allowed to tell and with what level of detail?

Responding to defense motions, Judge Matsch barred prosecutors from presenting victims' wedding photos, a poem by a victim's father, and testimony on funeral arrangements. He also excluded testimony about how relatives identified victims, a video of a routine day at a credit union office in the Alfred P. Murrah Federal Building, and testimony about a mourning ceremony outside the building by one family.

"We have to guard this hearing to ensure that the ultimate result and the jury's decision is truly a moral response to appropriate information rather than an emotional response," said Matsch.

While acknowledging that it is natural to feel anger at such a horrible crime and empathy with its victims, he reminded jurors that the purpose of the sentencing trial was not to "seek revenge against Timothy McVeigh."

This admonition did not sit well with some of the victims. For example, Roy Sells, whose wife was killed in the explosion, explained "It's revenge for me. It's very simple. Look at what he's done. Could anyone deserve to die more?"

The judge did allow the testimony of a ten-year-old boy whose mother died and a rescuer who held a hand buried in the rubble, only to feel the pulse stop. Matsch also admitted photos of maimed survivors; pictures of victims being wheeled into hospitals; and testimony from the coroner about the various causes of death, including that of a man who died slowly, as the presence of gravel in his lungs revealed.

"We can't sanitize this scene," Matsch noted. But "the penalty phase hearing here cannot be turned into some type of a lynching."

In fact, prosecutors called thirty-eight witnesses, twenty-six relatives of those who were killed, three injured survivors, one employee of the day care center, and eight rescue or medical workers, each of whom described how the bombing physically and emotionally devastated their lives. The penalty phase of the trial was dominated by this victim impact testimony.

The prosecution urged that jurors not think of what happened in Oklahoma City as "mass murder . . . There are 168 people, all unique, all individual . . . All had families, all had friends, and they're different."

The prosecution claimed that McVeigh "knew exactly what the effects of this bomb were going to be," and that he "intended to see blood flow in the streets."

The prosecution closed its case by calling one last family member of a victim of the bombing. Glenn A. Seidl testified about the death of his wife, Kathy, who was an investigative assistant at the Secret Service Office in the Murrah Building, and the impact it had on him and his nine-year-old son, Clint.

"I deal with Clint's hurt all the time," he said.

I mean, it's--I mean, he's a normal boy. We try to live a normal life, but I'm always reminded this isn't a normal situation. Clint's eighth birthday, we had a big birthday party, Grandma and Grandpa, aunts and uncles. And after everybody left, Clint climbed up on my lap and started crying. And he asked me--he said, "Do you think my mom loved me?" And I said, "Well, your mom loves you more than anything in the world." And he said, "Why isn't she here."

Seidl ended his testimony by reading a letter from Clint. "I miss my Mom, we used to go for walks," the nine-year-old's letter said. "She would read to me. We would go to Wal-Mart . . . Sometimes at school around the holidays I will still make my Mother's Day and Valentine's Day cards like the other kids."

McVeigh's defense sought to turn the penalty phase into a trial of the government's handling of the siege at the Branch Davidian compound near Waco, Texas, in 1992, some five years earlier.

Eschewing the usual strategy that focuses on distinctive personal circumstances in the defendant's background--physical abuse and neglect, for example--McVeigh's defense portrayed him as an average American child, a patriotic war veteran whose life was radically changed by the fiery climax of the standoff at Waco.

"You'll see how the fire of Waco continued to burn in Mr. McVeigh," said Richard Burr, one of the nation's foremost death penalty lawyers and leader of the defense in the penalty phase.

In his opening statement Burr argued that the case was rooted in McVeigh's beliefs that the eighty cultists who died at the Branch Davidian compound were murdered by the federal government.

"He is at the middle of this," Burr said. "There is violence at both ends, there is much death, there is tremendous suffering, but there is also a person at the center who you will not be able to dismiss easily as a monster or a demon, who could be your son, who could be your brother, who could be your grandson."

To ensure that the jury could not dismiss or demonize McVeigh, the defense called more than twenty witnesses from McVeigh's past, including family, friends, neighbors, teachers, coworkers, and a woman who "loved him like a brother." Four officers who knew McVeigh in the Army testified that the convicted terrorist had been an exemplary soldier who stood far above his peers.

Jurors also were shown an hour-long videotape titled Day 51: The True Story of Waco. It depicted the Davidians as an innocent Bible study group purposely slaughtered by government agents after a fifty-one-day standoff. Reminiscent of the video jurors saw earlier of the building McVeigh destroyed, the tape showed the Davidian compound in flames, panning to a doll left in the rubble.

The defense concluded its effort to save McVeigh's life by presenting testimony from his parents. The defendant's father showed a twelve-minute video he made about his son's life, including footage from old home movies and photographs of a young, happy Timothy McVeigh and his family.

Calling him "Timmy," the elder McVeigh recounted his son's life in the small towns of Lockport and Pendleton, New York. The tape included footage from Halloweens and Christmases of Timothy McVeigh's childhood, and typical fatherly remarks, such as a comment by the elder McVeigh that his son "was a good student, although he never got the grades I thought he was capable of."

He told the jury that after a stint in the military including meritorious service in the Persian Gulf War, Timothy McVeigh returned home in 1991. "He seemed to be happy."

The defense then showed jurors a photo of the father and son, smiling, their arms wrapped around one another. "To me, it's a happy Tim. It's the Tim I remember most in my life," William McVeigh noted. The father concluded his testimony by saying he loved "the Tim in this courtroom" and wanted him to stay alive.

She told the jurors that despite his conviction, the twenty-nine-year-old military veteran is still a son, a brother, and a cousin to those who care about him. "I am pleading for my son's life. He is a human being as we all are."

Despite the emotional pleas of his parents, the jury sentenced Timothy McVeigh to death. Today McVeigh's case is still on appeal, the Supreme Court having recently refused to hear the claim that his conviction was tainted by pretrial publicity and juror prejudice.

Whether or not he is executed, McVeigh already has become a poster boy for capital punishment, the cold-blooded, mass-murderer.

From Timothy McVeigh to the Killing State

Today McVeigh's name is regularly brought up in arguments about the place of capital punishment in America. It is used as the ultimate trump card, the living, breathing embodiment of the necessity and justice of the death penalty. Even people normally opposed to, or indifferent about, capital punishment find themselves drawn to it in McVeigh's case.

Typical is the reaction of one newspaperman who wrote, "Capital punishment has never been one of my hot button issues. Still, when asked my opinion or moved to write about it, I for years have come out against the government's killing someone after that person no longer represented a threat to society . . . To my surprise, the Timothy McVeigh trial has convinced me that I could support the death penalty."

Or, as another editorial writer put it, "We cannot undo his [McVeigh's] action, but we can deny him what is left of his life . . . I agree with the jury that he deserves to die. But this decision did not come easily for me."

For many McVeigh has joined the pantheon of notorious killers--Adolf Hitler, John Paul Gacey, Jeffrey Dahmer--whose names do much of the argumentative work in the national debate about capital punishment. Yet neither McVeigh, his crime, nor his case typifies the killers, the crimes, or the cases in the capital punishment system.

Most of the more than 3,600 persons now on death row are there because they committed crimes of passion or lost their head and killed someone in the course of a robbery gone bad; few had adequate defense lawyers or elaborate trials; more than one-half are nonwhites; many come from economically disadvantaged backgrounds. Unlike McVeigh's, their cases receive little or no national publicity.

Nevertheless, McVeigh's case makes vivid many of the themes surrounding the debate about the death penalty in the United States--its importance to political elites as both a political issue and a technique for governing; the increased salience of victims; the appeal of revenge as a foundation for legal punishment; the strains and conflicts that capital punishment imposes on, and exposes in, our legal system; and the iconography through which we come to know crime and punishment.

Seen through the lens of the McVeigh case, as well as the hundreds of more "mundane" death penalty cases that are decided every year, Americans today live in a killing state in which violence is met with violence, and the measure of our sovereignty as a people is found in our ability both to make laws carrying the penalty of death and to translate those laws into a calm, bureaucratic bloodletting.

At the turn of the century, capital punishment is alive and well as one of the most prominent manifestations of our killing state, defying the predictions of many scholars who thought it would fade away long ago. Despite the recent reawakening of some abolitionist activity and a modest decline in public support for the death penalty, today more than two-thirds of Americans say they favor capital punishment for persons convicted of murder.

Scholars report that vengeance, retribution, and the simple justice of an "eye for an eye" sort provide the basis for much of this support. This may reflect "a growing sense that capital punishment no longer needs to be defended in terms of its social utility . . . The current invocation of vengeance reflects . . . a sense of entitlement to the death penalty as a satisfying personal experience for victims and a satisfying gesture for the rest of the community."

Yet, as the legal historian Stuart Banner rightly observes,

Capital punishment . . . presents several puzzles. It gets more attention than any other issue of criminal justice, yet it is a minuscule part of our criminal justice system. It is very popular despite well-known shortcomings--it does not deter crime, it is inflicted in a systematically biased manner, it is sometimes imposed on the innocent, and it is quite expensive to administer It is often justified in simple retributive terms, as the worst punishment for the worst crime, but it is not hard to conceive of worse punishments, such as torture While capital punishment is intended to deter others, we inflict it in private, and allow prospective criminals to learn very little about it.

If all this were not puzzling enough, we remain committed to state killing in the face of increasing doubts about the reliability and fairness of the capital punishment system, criticism in the international arena and long after almost all other democratic nations have abandoned it.

Moreover, we are becoming freer in its use. For a brief period after the Supreme Court reinstated capital punishment in 1976, it tightly supervised the death penalty and imposed great restraint on its use, but that period is now long gone.

Despite domestic doubts and international criticism, the pressure is on to move from merely sentencing people to death and then warehousing them to carrying out executions by reducing procedural protections and expediting the death penalty process. We live in a state in which killing is an increasingly important part of criminal justice policy and a powerful symbol of political power.

Every year many of those on death row are actually put to death. Capital punishment has been routinized. Indeed executions have become so commonplace that in some states, such as Texas and Virginia, it is difficult for abolitionist groups to mount a visible presence every time the state kills.

So great is the momentum in favor of executions that they sometimes proceed in cases where serious issues of innocence remain unresolved. It now appears that the killing state will be a regular feature of the landscape of American politics for a long time to come.

What does the persistence of capital punishment mean for our law, politics, and culture? What impulses does state killing nurture in our responses to grievous wrongs? What demands does it place on our legal institutions? How is the death penalty represented in our culture?

In addressing these questions, When the State Kills is animated by the belief that capital punishment has played, and continues to play, a major, and dangerous, role in the modern economy of power. If we are to understand this role, our thinking about the death penalty has to go beyond treating it as simply a matter of moral argument and policy debate.

We must examine the connections between capital punishment and certain fundamental issues facing our legal, political, and cultural systems. We must ask what the death penalty does to us, not just what it does for us.

State killing exacerbates some of the most troubling aspects of the American condition. Capital punishment provides a seemingly simple solution to complex problems, encouraging our society to focus compulsively on fixing individual responsibility and apportioning blame, as if the evil deeds of the McVeighs of the world could be wished away by repeating "evil people do evil things."

Moreover, part of what is at stake in the contemporary politics of the death penalty is a contest to claim the status of victim. Today this label is widely appropriated, used by persons accused of capital crimes to explain what they did and why they did it as well as by the so-called victims' rights movement to claim that the only real victims are those innocent citizens whose lives are tragically ended by capital crimes.

Instead of the difficult, often frustrating work of understanding what in our society breeds such heinous acts of violence, state killing offers all of us a way out. Those acts are "their" fault, not our problem. The world can and should be understood in a set of clear typologies of good and evil, victim and villain.

State killing depends on flattened narratives of criminal or personal responsibility of the type found in melodrama and responds to insistent demands that we use punishment to restore clarity to the moral order.

As Harvard law professor Martha Minow argues, the struggle over "blame . . . obscures the complex interactions of individual choice, social structures, and the historical obstacles within which both individuals and institutions operate. As a result, public debate, legal solutions, and political talk neglect the complex solutions needed to sustain and equip victimized individuals to choose differently while also restricting the individuals and social forces that oppress them."

This is not to say that responsibility and blame should not be assigned; but state killing, by responding to and encouraging a yearning for a world without moral ambiguity, does not make us safer or our society healthier.

Capital punishment is caught up in, and sustained by, a series of contradictions in our social and political attitudes. The power of the victims' rights movement in the United States arises, in part, from increasing distrust of governmental and legal institutions, yet it is to those very institutions that the families of victims must turn as they seek to ensure an adequate response to capital crimes.

This same contradiction sometimes is revealed when jurors decide to impose the death penalty. Some jurors do so because they doubt that a life sentence will actually mean life. They express this doubt by imposing a death sentence because they believe that appellate courts will ensure that state killing is used with great scrupulousness.

Moreover, our society's continued support for capital punishment is fueled by both a deep awareness of the complexities of life at the dawn of the twenty-first century and, at the same time, a willed blindness to these complexities and their implications. State killing distracts. It encourages the quest for revenge rather than efforts at reconciliation and social reconstruction.

Who after all could forgive McVeigh or seek some common meaning with him? But does state killing make our society any less violent than it would otherwise be? Ask McVeigh. The prospect of a death sentence did not keep him from blowing up the Murrah Building.

And, in the quest to kill the killers do we exacerbate the racial divide that continues to plague the American condition? Does race continue to be a shadow presence when the state kills? The answer, I fear, is yes.

State killing damages us all, calling into question the extent of the difference between the killing done in our name and the killing that all of us would like to stop and, in the process, weakening, not strengthening, democratic political institutions.

It leaves America angrier, less compassionate, more intolerant, more divided, further from, not closer to, solutions to our most pressing problems. While ending state killing would not be a cure for our ills, doing so would allow us to focus more clearly on dealing with those issues.

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The footnotes in this chapter excerpt have been omitted, but are available at the Princeton University Press website. In addition, this excerpt has been broken into shorter paragraphs for ease of Internet reading.

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