MAY 02 2001

As McVeigh's Execution Looms, Death Penalty Foes in Tough Spot

Patricia Clark, an anti-death penalty activist in Philadelphia, was addressing a group of rabbinical students recently when one of them asked about Clark's opposition to the planned execution of Oklahoma City bomber Timothy J. McVeigh. Considering the enormity of McVeigh's crime, his apparent lack of remorse and his decision not to pursue legal appeals, the student wondered why Clark is devoting time and energy to organizing a protest of McVeigh's death by injection, scheduled for May 16. How could she feel compassion for the worst convicted mass murderer in U.S. history? "My response was really quite simple: We should not take a human life," recalled Clark, coordinator of the anti-death penalty project of the American Friends Service Committee. "I look at it as a test of faith," she added. "It's easy to argue against the death penalty when you can point to [a prisoner's] mental retardation, or the possibility of innocence, or evidence of racism. Timothy McVeigh doesn't fit those patterns." As McVeigh's execution date nears, capital punishment opponents are in an unusual position. Some, like Clark, believe that worldwide news coverage of the execution will offer a big opportunity to spread their message. But other death penalty foes are concerned that few people will be listening to their side of the argument. The 1995 bombing of the Oklahoma City federal building, which took 168 lives, was such a horrendous crime that many Americans who are undecided in the broader death penalty debate favor execution in McVeigh's case, according to polls. McVeigh has admitted committing the crime. "It's an unfortunate fact that American criminal justice policy is very incident-driven," said Rob Warden, director of the Center on Wrongful Convictions at Northwestern University law school in Chicago. "It's the way society is. Just one horrendous case can change the minds of massive numbers of people on issues like capital punishment." And in McVeigh's case, "there's no fairness issue," added Barry Scheck, co-founder of the Innocence Project at Cardozo School of Law in New York. "There's no innocence issue. Millions of dollars were spent on his defense. You look at all the issues that normally raise concern about death penalty cases, and not one of them is present in this case, period." After many years of arguing in vain against capital punishment, anti-death penalty activists have made progress since the mid-1990s. Public support for capital punishment, though still strong at 67 percent, has declined from a high of 80 percent in 1994, according to Gallup polls. Bills calling for moratoriums on executions have been introduced in a growing number of state legislatures in recent years. And the U.S. Supreme Court is considering whether the Constitution bars executions of killers who are mentally retarded, a case that could result in a significant new restriction on the use of capital punishment. A big question for death penalty foes these days is whether their momentum will be slowed by McVeigh's impending execution -- a death sentence that 71 percent of Americans support, according to a recent poll conducted for Fox News. Although Clark believes that taking a principled, unpopular stand against the execution will enhance the anti-death penalty movement's credibility, others worry that the case may hinder the campaign against executions. In Illinois, Warden noted, "two of the most famous cases of the 20th century were [mass murderer] Richard Speck and [serial killer] John Wayne Gacy. People here are always citing those cases. They say, 'We need to have the death penalty for people like that.' "Now, will we have a mass of people in the country who'll always be saying, 'We need to have the death penalty for people like McVeigh'? I don't know. We'll see." Abe Bonowitz, head of Florida-based Citizens United for Alternatives to the Death Penalty, dismissed Warden's concern about the execution hurting the anti-death penalty cause. "Oh, I think it's helpful to us," said Bonowitz, who predicted that intense news coverage of the event "will make the death penalty seem a lot more real to people," and perhaps cause a backlash against it. Kate Lowenstein, an official of Massachusetts-based Murder Victims' Families for Reconciliation, was less optimistic. "We hope people are somewhat appalled by the execution," she said. "But with Americans, you just never know." Some opponents of capital punishment, such as Warden and Scheck, do not rely on moral arguments about the sanctity of life. They contend that the death penalty process is prone to frequent mistakes, often caused by inept, court-appointed defense lawyers and overzealous police and prosecutors. Scheck said he believes many people will put McVeigh in a special category when assessing their feelings about the death penalty. "This case has absolutely no resemblance to the everyday kind of death penalty cases we see in the United States, and the public recognizes that," he said. No one knows how many death penalty opponents plan to protest outside the federal prison in Terre Haute, Ind., where McVeigh, 33, is to be executed. The Terre Haute Abolition Network is arranging what it called "a dignified" gathering at the penitentiary, to include prayers, hymns and inspirational readings. Bonowitz said his group is organizing a protest march in Terre Haute, and Lowenstein said members of her organization will travel to Indiana to set up an anti-death penalty educational exhibit. According to the Gallup Organization, support for capital punishment was at 66 percent in 1976, when the Supreme Court allowed restoration of the death penalty after a four-year hiatus. Back then, opponents mainly argued that death sentences were morally wrong and were being disproportionately imposed on blacks. Yet support for captial punishment rose steadily, reaching 80 percent in 1994, Gallup noted in a recent report. Since then, the main argument of the anti-death penalty movement has changed, with opponents emphasizing the problems cited by Scheck and others. They have sought to focus public attention on the 93 death row inmates who have been exonerated over the years. At the same time, public support for capital punishment has waned. "Even news of the Oklahoma City bombing and the federal government's seeking (and obtaining) the death penalty for McVeigh in 1995 did not reverse the downward trend," the Gallup report said. Death penalty foes gained further momentum last year. Illinois Gov. George Ryan (R) imposed an execution moratorium in his state after 13 wrongly convicted inmates were freed from Illinois' death row in 13 years. And during the presidential campaign, questions about the reliability of the vigorous death penalty system in Texas under then-Gov. George W. Bush attracted intense national media scrutiny. Of the 38 states with capital punishment laws, only Illinois has halted executions. But moratorium bills were introduced in 16 state legislatures this year, up from nine last year, according to the Quixote Center, the Brentwood, Md.-based group that initiated the moratorium campaign in 1997. Diann Rust-Tierney, director of the American Civil Liberties Union's death penalty project, said McVeigh's execution -- the first by the federal government since 1963 -- will focus more national attention on the death penalty than any of the 700-plus state executions since the resumption of capital punishment. "The public, on a larger scale than ever, is going to have to come to grips with the reality of putting someone to death," she said. Yet the public may embrace that reality, given the horrific facts of McVeigh's case, said Daniel Misleh, an adviser to the U.S. Conference of Catholic Bishops. "Even if you disagree wholeheartedly with the death penalty," he said, "I think most reasonable people are going to say we ought to have it, because a guy like this really deserves it." On behalf of the conference, Cardinal William H. Keeler of Baltimore and Cardinal Roger Mahony of Los Angeles plan to issue a statement "offering a great deal of sympathy and prayers for the [Oklahoma City] victims," Misleh said, "but also calling the attention of the public, and Catholics in particular, to the false promise of capital punishment. It does not bring genuine healing and contributes to the culture of violence." Misleh is under no illusion that the statement, along with a similar one previously issued by Daniel M. Buechlein, the Roman Catholic archbishop of Indianapolis, will change many people's feelings about the death sentence in McVeigh's case. But the anti-death penalty argument "does have to be made," he said. "Your principles are really tested when you're pushed to the limit, as we are here," Misleh said. "If we can demonstrate that we stand for life in this instance, then our message of life is going to be all the louder and clearer next time."