The Magazine

An Execution and Its Witness

The McVeigh case and the triumph of victims' rights

May 14, 2001, Vol. 6, No. 33 • By TOD LINDBERG
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OKLAHOMA CITY BOMBER TIMOTHY MCVEIGH is scheduled to die by lethal injection May 16 in a federal prison in Indiana, the first person to be executed under the federal death penalty law. Another first: Families of McVeigh's victims and survivors of the attack received an invitation from federal authorities led by Attorney General John Ashcroft to watch a live closed-circuit broadcast of the execution. As of the May 1 deadline, some 285 (of about 3,000 eligible) had indicated they would turn out.

Everything about the Oklahoma City bombing resists efforts to put matters into context: the spectacular quality of the crime, its unique devastation as an exercise in mass murder, its utterly unrepentant perpetrator, and his grotesque ideological motivation. For an illustration of the exceptionalism, note that 22 percent of Americans in a CNN/USA Today/Gallup poll both believe that McVeigh should be executed and oppose the death penalty. Some death penalty opponents have insisted that McVeigh's is exactly the sort of hard case that requires opponents to stiffen their resolve against capital punishment. On the other hand, there is nothing obviously irrational about opposing capital punishment in general while allowing for an exception in the case of someone who murdered 168 of your countrymen.

All the things that make the episode singular also make it risky to mine it for general social significance. Yet the decision to offer a closed-circuit viewing of the execution to families of McVeigh's victims does open a window on the extent to which victims have taken a place front and center in the concerns of the criminal justice system. This is hard to argue against. Certainly official insensitivity to crime victims is unconscionable. But solicitude, too, comes at a cost. When crime is viewed through the victim's eyes, to the exclusion of other points of view, we risk losing our grip on what crime really is and why we punish it the way we do.

"Victims' rights" advocates have been making steady and sometimes dramatic progress for the better part of two decades. From feminists blaming the dehumanization of rape victims on patriarchal society, to law-and-order organizations worrying about restrictions on police powers, to politicians looking for ways to sell themselves as tough on crime, the utility of focusing on the agony of the victim has been undeniable. Congress has even tried to pass a victims' rights amendment to the Constitution. It would entitle victims of violent crimes to notice of and admission to all public proceedings concerning their cases; guarantee them an opportunity to weigh in on plea bargains, sentencing, and parole; entitle them to notice of the perpetrator's release; and guarantee a "final disposition free from unreasonable delay."

The issue is thoroughly bipartisan. Senate co-sponsors of the amendment are Jon Kyl, Arizona Republican, and Dianne Feinstein, California Democrat. Here is Republican representative Steve Chabot of Ohio, a House sponsor of the measure, with the most often heard argument on its behalf: "The U.S. Constitution is completely silent on victims' rights, while it speaks volumes as to the rights of the accused." Al Gore made a victims' rights amendment the centerpiece of his message on crime in the 2000 campaign: "Defendants have constitutional rights to protect them, and when those rights are enshrined in the Constitution and the rights of victims are not, victims are put in the back seat and sometimes completely ignored. We need to change that by having balance in the system."

If there is a counterargument here, it is seldom heard. Every now and again, a criminal defense lawyer will rise to testify that an excessive focus on victims' rights can lead to erosion of the constitutional and statutory protections of the accused, who after all remain innocent until proved guilty. Nation magazine contributing editor Bruce Shapiro, writing in 1997, also worried that the push for victims' rights is a distraction from more pressing social needs: "How many tens of millions of dollars in federal assistance now going to pay for medical care for uninsured victims would be unnecessary under a single-payer system?"