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A Matter of Life or Death

15 minute read
THOMAS SANCTON / Paris

If critics of the U.S. death penalty needed any more ammunition to prove that the system is unjust, flawed and unreliable, they got plenty last Friday. Five days before Timothy McVeigh was scheduled to die for a 1995 bombing that killed 168 people, the U.S. Justice Department postponed his execution until June 11. Reason: the fbi discovered thousands of pages of interview reports and other documents that were, inexplicably, never turned over to McVeigh’s lawyers before his trial. While there was no indication that the documents would have changed the outcome — the defendant has confessed to the bombing — his lawyers demanded extra time to examine them and reserved the right to seek a retrial.

That stunning development interrupted a process that had been heading smoothly toward a May 16 execution. It also added a baffling and embarrassing new example to the dozens of instances of judicial error, mendacious testimony, incompetent defense lawyers and sloppy lab work that have demonstrably sent innocent people to their deaths in recent years. Earlier this month, following an Oklahoma City Police Department report on multiple errors by local police chemist Joyce Gilchrist, the Oklahama State Bureau of Investigation launched an investigation into all the cases — including 23 death sentences — in which she has been involved.

It seemed unlikely that the newfound documents would reverse the verdict on McVeigh or long delay the execution that he himself has sought to hasten. But the news that law enforcement officials could mess up so spectacularly in such a high-profile case — involving the worst domestic terrorist act in U.S. history and the first federal execution in 38 years — seemed to prove once again that the American justice system was far from infallible. It also added an element of cruelty to the process, leaving McVeigh dangling in the wind and making the victims’ families wait still longer for the “closure” that many hoped his execution would bring them.

If McVeigh’s day does come, prison guards will lead him at 7:00 a.m. into a chamber at the Terre Haute, Indiana federal prison, strap him to a T-shaped gurney and insert an intravenous needle into his arm. McVeigh will pronounce some final words, then the chief guard will inform a U.S. Marshal, “We are ready.” A dose of sodium pentothal will be sent through the IV line to render McVeigh unconscious and relax his muscles. Then a second drug, pancuronium bromide, will collapse his lungs. Finally, a lethal charge of potassium chloride will stop his heart.

Looking on from behind plate-glass windows, some two dozen witnesses — victims’ relatives, journalists, lawyers — will observe the macabre spectacle from an adjoining room. In Oklahoma City, meanwhile, 300 others, mostly victims’ family members, will see the death scene over closed-circuit television. And far beyond that, via indirect but doubtless vivid media and eyewitness accounts, the whole world will be watching. And judging.

Since the U.S. Supreme Court reinstated the death penalty in 1976, more than 700 prisoners have been executed in 31 states, and 3,700 are currently awaiting their turn on death row. That makes America the world’s No. 4 executioner, behind China, Iraq and Saudi Arabia. At a time when 108 nations have abolished capital punishment, legally or in practice, the U.S. remains the only major Western democracy to put prisoners to death. (Japan still does, but on a far smaller scale.)

There are moral arguments for and against the death penalty — thou-shalt-not-kill vs. an-eye-for-an-eye. But in America capital punishment is often accompanied by injustices and inequalities that are troubling even to those who support it in principle. Statistics show that blacks and Hispanics are proportionally far more likely to be sent to death chambers than whites; that poor defendants are condemned more often than rich ones; that the existence of the death penalty, despite widespread beliefs to the contrary, in fact has no deterrent value. The execution in some states of minors and retarded inmates is profoundly shocking to many people in the U.S. and abroad, as is the multiplicity of judicial errors that have sent innocent people to execution chambers or long terms on death row. The accumulation of such errors last year moved Illinois Governor George Ryan, a supporter of the death penalty, to declare a moratorium on executions in his state.

That the U.S. executes people is troubling to death-penalty opponents around the world. But nowhere, perhaps, does it pose such a problem as in the European countries that share America’s democratic values and maintain close economic, military and cultural ties with their transatlantic partner. “Europeans are appalled at the unabated pursuit of the application of the death penalty in the U.S.,” says Bianca Jagger, an official of Amnesty International U.S.A. “They cannot understand how the U.S. can claim to be the leading champion of democracy and continue to apply the death penalty.” Belgian novelist and essayist Pierre Mertens similarly observes, “It is a tragic paradox that the deluxe country among the democracies resorts to this kind of barbarity.”Concerning the question of capital punishment, the U.S. and its allies stand on opposite sides of a great divide. All 15 members of the European Union have banned the death penalty, and the organization actively promotes its abolition throughout the world. Brussels has made abolition a precondition to E.U. membership, as has the 41-member Council of Europe, thereby spurring most East and Central European aspirants to do away with capital punishment.

Nor does Europe hesitate to pressure the U.S. on this point. Last year alone, the presidency of the E.U. sent then-Governor George W. Bush eight letters pleading for the pardon of death-row inmates in Texas. The E.U. publicly protests each execution that takes place. Last year, E.U. ambassadors in Washington presented the State Department with a memorandum calling for an end to capital punishment and voicing “concern about the increasing number of persons sentenced to death in the United States.” Without naming the U.S. specifically, French President Jacques Chirac called for “universal abolition of the death penalty” in a speech to the U.N. Human Rights Commission in Geneva last March.

International criticism has increasingly focused on President Bush himself, whose record of presiding over 152 executions during his five years as Texas Governor has given him the nickname of “Mr. Death Penalty” among European opponents of capital punishment. Though the death penalty was not an important issue to U.S. voters last November, it dominated European press coverage of the presidential campaign. “Bush makes no apology for his hideous track record,” said an editorial in Britain’s Mirror newspaper, as Texas was preparing to execute mentally retarded Johnny Paul Penry. “And, disturbingly, he has mass support from Americans, driven by their out-of-control gun culture and blood lust for retribution.” Le Monde editor Jean-Marie Colombani wrote: “The death penalty, along with limits on abortion rights and the sale of firearms, is digging a gulf between America and the Old Continent, a gulf of values and misunderstanding that drives them apart. In this domain, President Bush, more than any of his predecessors, incarnates an America that is more and more distant from Europe.”

Washington officials are unmoved by such criticism. “The President believes that the death penalty saves lives and serves as a deterrent to crime,” says White House spokesman Ari Fleischer. The State Department offers a more diplomatic but equally firm defense. “We know there is a lot of concern around the world,” says an official, “but at this point our nation believes that it is an appropriate punishment for certain crimes if handled under very careful legal procedures. We think that our system stands up to scrutiny because it is constantly under its own scrutiny.” Another official notes simply that “it is the will of the people.” End of story.

But if they bothered to read their own diplomatic cables, let alone the European press, officials in Washington would know that this issue is doing serious damage to America’s image and influence abroad. Writing in the Washington Post last February, former U.S. Ambassador to France Felix Rohatyn issued a dire warning on this point. “[America’s] moral leadership is under challenge,” he wrote, “because of two issues: the death penalty and violence in our society. During my nearly four years in France, no single issue evoked as much passion and as much protest as executions in the United States … It would be worth having a dialogue on these difficult subjects with our Atlantic allies — not by diplomats but by jurists and parliamentarians and chiefs of police.”

The most impassioned protests that Rohatyn alluded to concerned cases in which prisoners appeared to have been condemned on racial grounds, or after unfair trials at which they were badly defended. A number of such cases have generated ad hoc support groups, multilingual websites, fundraising campaigns, and letters or phone calls to U.S. officials by European leaders (also by Pope John Paul II) pleading for clemency. In the case of Odell Barnes, a 31-year-old black man convicted of the rape and murder of his girlfriend, a French support group financed a counter-investigation that turned up serious doubts about his guilt. After Barnes was executed in March 2000, French Education Minister Jack Lang — who had flown to Texas to meet with the prisoner — charged the U.S. with “assassination.” Lang wondered “how Bush can pretend to run for President after committing such a crime.”

Timothy McVeigh, however, makes a far less appealing poster boy for the anti-death-penalty campaign. A ne’er-do-well Gulf War veteran fascinated with guns and fanatically opposed to the U.S. government, McVeigh blew up a federal building in Oklahoma City on April 19, 1995 with a fertilizer truck bomb. The blast killed 168 people, including 19 children, and injured 500. McVeigh, 33, who casually referred to the dead kids as “collateral damage,” has admitted responsibility for the deed, expressed no remorse and ended the appeals process in order to ensure his execution. If ever a prisoner deserved to die, say death penalty-supporters, surely it is he.

Yet many abolitionists see McVeigh’s execution as an important turning point for their crusade. Says Michel Taube, president of the French organization Together Against the Death Penalty: “This is the first federal execution in 38 years, which constitutes a juridical step backward for the U.S. McVeigh is a paradoxical figure — the worst domestic terrorist America has ever known, and at the same time an ordinary American, a child of the divorce generation, of the gun culture. This says a lot about American society, its justice and its violence.” As for McVeigh’s evident guilt and the reprehensible nature of his crime, Taube says that misses the point. “The problem of the death penalty is not just the innocent people who are condemned. We say it is wrong to execute the guilty.”

Indeed, many anti-death-penalty activists argue that the lack of extenuating circumstances in McVeigh’s case strips the issue down to its essential point: the nature of cap-ital punishment itself. “We see this case as an opportunity to show that we oppose the death penalty in all circumstances,” says Piers Bannister of Amnesty International, which will hold a vigil outside the Terre Haute prison on the day of McVeigh’s execution. “It’s not about him. It’s about eradicating a cruel, irrevocable and outdated punishment.” While European advocacy groups, political officials and the media are touting the McVeigh execution as an argument against the U.S. death penalty, there are no signs of a mass mobilization of public opinion. One reason is the lack of sympathy McVeigh engenders. Beyond that, though, European public opinion is in fact divided on the death penalty. In Britain, where the last legal vestiges of capital punishment were removed only in 1998, support for the penalty remains around 60%. A 1996 Dutch poll showed 52% in favor. In Italy and France, support runs over 40%.

According to Philippe Méchet, director general of France’s Sofres polling firm, Bush and the U.S. still enjoy a fairly positive image in France, despite majority disapproval of capital punishment. “There is a big difference between the European élites and general public,” he observes. “The élites, as reflected in the media, make a big issue of this, but public opinion does not feel as strongly about it.”

For better or worse, the extraordinary media circus surrounding McVeigh’s execution is sure to strengthen those feelings.

At least 1,600 print and electronic journalists will be reporting from within the grounds of the Indiana prison. Eight U.S. networks will be broadcasting live from the Hoosier state. Outside the prison walls, souvenir hawkers will be selling everything from coffee mugs to T shirts with pictures of syringes and the words “Hoosier Hospitality.”

No images of the execution will be publicly broadcast, but a media pool of 10 journalists will witness and describe the scene. Cameras will record protest rallies, press conferences and, of course, tearful interviews with victims’ relatives. McVeigh wanted the event broadcast nationally, and a U.S. Internet firm sought permission to post the images on its pay-per-view website. Authorities denied both requests, although they haven’t entirely eliminated sensationalism from the witness chamber: novelist Gore Vidal, who is writing a piece for Vanity Fair, will attend as McVeigh’s personal guest.

Some activists are hoping that the World Cup-style coverage will finally focus American attention on the issue of capital punishment. “The McVeigh execution is an important step in raising the level of media coverage of the death-penalty,” says French abolitionist Michel Taube. “It can open the debate, stimulate donations to anti death-penalty groups, push more U.S. states to declare moratoriums and get the local American media talking about these questions.”

Others are not so optimistic. “U.S. fascination with the McVeigh execution will promote the idea that American society is less humane and advanced than Europe,” says Guillaume Parmentier, director of the Center for American Studies in Paris. “Bush’s enthusiastic support for executions is bad for transatlantic relations. It gives the impression that we’re drifting apart. It promotes the view, spread by the U.S. media, that the U.S. is a very violent society.”

Indeed, much European commentary on the event has used it to present unflattering portraits of America. Writing in Britain’s Independent newspaper, columnist Natasha Walter argued that Americans should be true to their natures by publicly broadcasting the execution. “People [would watch] out of pure voyeurism … laughing, drinking beer, cheering. Then the United States would be revealed in its true colors — not as the decent, humane society that it likes to sell itself as, but as the barbaric country that it is, a country that kills and kills again, in the face of all international condemnation.” More soberly, Gilles Delafon, foreign affairs columnist for France’s Journal du Dimanche and author of a book on American gun violence, worries that the death penalty feeds Europe’s latent anti-Americanism. “The Americans keep handing out clubs for others to beat them with — capital punishment, the refusal to ratify Kyoto, rejection of the International Criminal Court. The Europeans are only too happy to have reasons to criticize the U.S. because it allows them to say that their society is more civilized and enlightened. That not only encourages the anti-American, antiglobalization forces, but it also causes dismay and distrust among those who are not anti-American.”

The Bush Administration may dismiss Europe’s concerns as hypocritical, misguided or irrelevant. But in a world in which democratic values and human rights are increasingly becoming factors in international relations — largely under U.S. influence — there could be a price to pay for diplomatic isolation on the issue of capital punishment. Earlier this month, the U.S. was voted off the U.N. Human Rights Commission for the first time since its formation in 1947. There were several explanations, ranging from opposition by human rights offenders tired of U.S. criticism to a defection by certain European allies. But many Europeans believe that America’s persistent use of the death penalty was a factor. There could be other rude awakenings in the future. Some death-penalty opponents, citing an international “right of interference,” are calling for a campaign to pressure the U.S. by all available means — diplomatic, legal, economic — to re-examine its use of capital punishment. It is unclear whether such pressure can sway American public opinion or vote-conscious politicians. But with Bush’s arrival in the White House, and the resumption of federal executions, the issue is reaching critical mass. It will come up time and again — at the U.N., in U.S.-European Union dealings, in international forums like the First World Congress Against the Death Penalty that will gather in Strasbourg next month, headed by the Presidents of the E.U., the Council of Europe and major human rights organizations. The U.S. is sure to be their main whipping boy.

Until now, the U.S. has been deaf to foreign criticism, and domestic debate on the subject has been limited. But if the execution of a deluded psychopath like Timothy McVeigh can prompt a rethinking of this crucial issue, then, paradoxically, he may not have died in vain.

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