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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?"

But concerns such as these have made little headway against the raw emotional force of the case for victims. Ashcroft couldn't have been clearer about how he made his decision to allow McVeigh's execution to be televised. Earlier this year, he met with 100 of McVeigh's victims after the dedication of a memorial in Oklahoma City. "My time with these brave survivors changed me," he said upon returning to Washington. "What was taken from them can never be fully replaced nor fully restored." He said that the experience had "galvanized" him to see that their wishes were accommodated. And how much of a departure, really, was this one-time expansion of the number of witnesses to the execution? "If there were three victims, no one would raise a question about the fact that they have a right to actually go on site and be present," he said. "Why should the magnitude of the crime somehow disenfranchise victims who feel the need?" He was seeking to "help to meet their need to close this chapter in their lives."

His boss, President Bush, had meanwhile received an appeal from no less a personage than John Paul II for clemency for McVeigh, part of the Catholic Church's new campaign against the death penalty. Rebuffing the pope is no casual matter. In doing so, presumably, one searches out the best argument one has. A Bush spokesperson turned straight to the victims: "The president has great respect for the pope and this is a tragic situation. The president also has deep compassion and sympathy for the 168 victims of the Oklahoma City bombing and their families."

And what, in this case, do the victims (whom the attorney general now speaks of in terms of rights and disenfranchisement) actually want? Well, in the case of Peggy Broxterman of Las Vegas, who lost a son, "I literally want to see that boy [McVeigh] on his way to hell. There may be no closure as such, but it will close that one door." Others spoke about a felt need to see McVeigh "breathe his last" in order to truly believe he is dead. Not that this was necessarily the majority sentiment among victims. Most, after all, will not be watching, and some have said they see no need for the closed-circuit screening. In news accounts, their comments, too, have been accorded special weight -- dueling victim's perspectives. And surely the attorney general would agree that the right to watch the perpetrator go to hell implies the right not to watch the perpetrator go to hell; likewise, the fact that some might feel disenfranchised by missing a chance to personally see the perpetrator breathe his last should in no way reflect negatively on those willing to take the government's word for it that he did, in fact, breathe his last.

Again, it's impossible to deny the unique perspective of the victim in relation to a crime, just as it is impossible to deny the unique perspective of the combat soldier in relation to war. But it is a mistake to think that the victim's perspective is the sole authentic perspective on crime, just as it is to take the experience of combat as the last word on war. We have not yet gone so far, even with the spread of victims' rights advocacy, but to give the victim the last word is to lose sight of the interest the state and society have in punishing criminals, quite independent of the particular views of particular victims. At the limit, criminal justice reverts to a premodern form, in which adjudication is entirely a matter of satisfying the private claims of an injured party.

That's not why we have criminal courts and laws. Society has reached a decision about how to punish mass murderers because society has a view of the harm mass murderers do not just to their victims, but to society as such. In no case of murder is the death penalty meted out on the say-so of the family of the victim. The state makes that determination.

Oddly enough, the contrary, radically private view is none other than McVeigh's. He blew up that building for a reason, after all: to kill people working for a government whose legitimacy he does not accept. It worked out pretty much as planned; he got 168 of them (counting also the visitors, toddlers, passers-by, etc.). And if that same government now takes his life, well, as he has said he sees matters, that still leaves the balance 168-1 in his favor.

But McVeigh is not going to die because the United States subscribes to the ancient doctrine of lex talionis, an eye for an eye, according to which the wrong he did must be done to him in return in order to restore the equality between perpetrator and victim. His execution is instead a product of a legal system that looks past the victim to ask whether certain conduct is, in principle, harmful or offensive to society itself, and to what degree. The focus on victims -- "I literally want to see that boy on his way to hell" -- unfortunately suggests that by executing McVeigh, we are just settling a score.

In punishing McVeigh, we are doing something much richer and more subtle than settling a score: We are enforcing our law.

Contributing editor Tod Lindberg is editor of Policy Review and a research fellow at the Hoover Institution.

May 14, 2001; Volume 6, Number 33