McVeigh Case May Put Death Penalty on Trial

Opponents of the death penalty, who have been swimming against the tide of public sentiment for more than 20 years, say they see some hope this week in the national debate over whether Oklahoma City bomber Timothy J. McVeigh deserves to die.

Based strictly on the facts of the case, McVeigh would seem to deserve the ultimate punishment. Deliberately and maliciously, he planned and carried out an attack that killed 168 innocent men, women and children simply to make a political statement.

And he has shown no remorse for his crime, no compassion for suffering survivors. Tears came to his eyes only when his family pleaded for his life.

Yet, according to several national polls, public support for putting McVeigh to death is not overwhelming, and dissent by a single juror could spare his life.

“If he doesn’t get a death sentence, it could have a big effect because other cases would seem minor in comparison to this,” said Richard Dieter, executive director of the Death Penalty Information Center here. “Even if he gets it, this case might set a new test for when the death penalty is appropriate--only for the worst of the worst.”

In closing arguments Thursday, prosecutor Beth Wilkinson stressed the enormity of McVeigh’s crime as the special reason it warranted the maximum punishment.

“This is the crime that the death penalty was designed for,” she told the 12 jurors.

Most Americans seem to have made up their minds about the death penalty long ago, at least in the abstract. Since the mid-1980s, polls have consistently found that about three-fourths of respondents support capital punishment.

This marks a sharp shift from the mid-1960s, when both the public and the courts moved to abolish the practice. A 1966 Gallup Poll found that only 42% of respondents supported capital punishment, while 47% opposed it.

In tune with the times, the Supreme Court put the death penalty on hold in 1967. Five years later, a 5-4 majority ruled it unconstitutional.

That victory for the abolitionist side proved to be brief. In fact, it disguised a shift in public sentiment that favored restoring capital punishment. The high court officially reversed course in 1976 and upheld a new generation of death penalty laws. Now 38 of the 50 states allow for the death penalty for intentional murders.

Congress joined in by imposing the death penalty for drug kingpins in 1988, and in 1994 extended the punishment to cover a variety of crimes, including the murder of federal employees who are doing their jobs.

Last week, a Newsweek poll found that 67% of those surveyed favored a death sentence for McVeigh. A USA Today poll found 61% support it.

“That surprises me that it wasn’t much higher,” Dieter said. “I can only guess it’s because he is a known human being with a real face, as opposed to an abstract answer to a poll question.”

The strongest argument against capital punishment remains its arbitrary use, even in the worst murder cases.

Jeffrey L. Dahmer committed 17 gruesome murders and mutilations in Milwaukee, but faced no chance of a death sentence. In Wisconsin, life in prison is the maximum sentence under state law.

Even in states with the death penalty, its use depends on local prosecutors.

In Pennsylvania, roughly half of its 204 death row inmates come from Philadelphia, which has 14% of the state’s population. Local prosecutor Lynn Abraham has a policy of regularly seeking death sentences in murder cases.

Texas leads the nation in executions--including 27 of the nation’s 38 so far this year--yet a death sentence for murder is still uncommon outside the Houston area. Thanks to the efforts of an aggressive Harris County prosecutor, Houston has supplied more than one-third of the inmates on the state’s death row.

Receiving a death sentence “depends mostly on politics and geography--where you live, the local prosecutor, and of course, on race,” said Stephen Bright, a defense lawyer and death penalty foe who handles cases throughout the South.

California has the largest number of inmates on death row--473 as of April 1--yet executions there are rare. Since 1963, the state has put four inmates to death.

Bright agrees that a life sentence for McVeigh would highlight a certain unfairness.

“The magnitude of this crime is so horrible, so huge. If it turns out that [death] is not imposed on him, why impose it on others?” he asked.

On the other hand, Bright and other death penalty opponents worry that the Denver trial gives a misleading impression of how the death penalty works.

“This case is not the typical case by any stretch of the imagination,” he said.

McVeigh had a team of competent, experienced defense lawyers. By contrast, he said, defendants on trial for murder in Alabama and Georgia usually have poorly paid lawyers who put in minimal effort for minimal pay.

“You see cases where the attorneys have fallen asleep during the trial, where they show up drunk. That is more typical than this,” he said.

“That’s the downside of this case, that people will be left thinking the system works well,” said Diann Rust-Tierney, director of the American Civil Liberties Union’s Capital Punishment Project.

“But this has provided an opportunity for a renewed national debate. If there is some national agonizing, I consider that a sign of hope,” Rust-Tierney said.