An Execution and Its Witness
The McVeigh case and the triumph of victims' rights
May 14, 2001, Vol. 6, No. 33 • By TOD LINDBERG
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.