FORUM

Paul Finkelman
University of Tulsa College of Law

Timothy McVeigh seems like a poster child for advocates of the death penalty. No one, not even his lawyers, doubts he bombed the Murrah Federal Building in Oklahoma City, killing 168 men, women, and children, in the worst single incident of domestic terrorism in the history of the United States. Far from denying his crime, McVeigh is proud of it. He regrets that some children died, but they were, in his twisted mind, collateral damage in his insane war against the United States of America. Clearly, there is no claim of actual innocence here. Unlike so many death penalty cases, we clearly got the right man.

But, if his war was insane, McVeigh certainly was not, at least in a legal sense. He knew what he was doing, meticulously planned it, and fully understood that people would die when his bomb went off. That is what he expected and what he wanted. According to Dr. John Smith, a psychiatrist hired by his own defense team, McVeigh expected to kill upwards of 400 people. Indeed, Smith expressed shock at "the coldness, the almost glee with which he told me the details of the bombing, the expectations that at least 400 people would be killed." In a legal sense, there is no insanity defense here.

Nor can anyone claim McVeigh did not get a fair trial. He had some of the best lawyers in the nation arguing his case. He had the venue changed to a different state. The government provided all the support staff that anyone could ask for.

McVeigh had effective counsel, a fair trial, and a jury correctly found him guilty of a heinous crime. So, how can anyone argue against execution?

There are in fact six strong arguments against sending McVeigh off to his final reward.

First, there is the traditional ethical argument that the state should never take life when it can avoid doing so. Had McVeigh violently resisted arrest, and died in the process, the state would have taken his life because McVeigh gave society no choice. But, McVeigh does not threaten anyone now, so we need not execute him. Why should society reduce itself to McVeigh's level? His acts are unspeakable -- he took the lives of people for no reason, other than to make a statement. Do we do anything different by taking his life?

Second, McVeigh is certainly not a threat to anyone in the future. He can surely be confined for the rest of his natural life in a one man cell in the bowels of the federal penitentiary in Terre Haute, Indiana. There he can contemplate his crimes, while not ever being able to plant another bomb.

Third, executing McVeigh will fit into McVeigh's game plan. According to a recent book on this killer, McVeigh's final statement will likely contain some version of the words from the poem Invictus, "I am the master of my fate, I am the captain of my soul...." McVeigh stopped all appeals in his case, to speed along the imposition of the death sentence. He is ready to die, and apparently wants to be executed. It is the final act in his drama: he set the stage for his own death, and now is ready to have it carried out. This is reason enough not to execute him. He wants to bring society down to his level, of killing for revenge. In his mind, he wins by being executed. We win by keeping in jail for the rest of this life.

Fourth, executing McVeigh will also not serve as a deterrent to similar crimes. McVeigh fully expected to be killed by the police in a shoot-out. He was prepared to die fighting and fully expected to die for his crime. Knowing he might be killed or executed hardly deterred him. And it will not deter anyone else from committing a similar crime. Anyone who is as wicked as McVeigh will not worry about his own life. In fact, executing McVeigh encourage some equally pathetic and evil person to commit a similar crime.

Fifth, executing him prevents us from ever learning the full truth about his co-conspirators. Years from now, after he has been sitting in prison for a long time, he may tell us who else, if anyone, was involved in his plot.

This leads to the last argument against his execution. Putting McVeigh to death may very well create a martyr. McVeigh knows he is far better off dead than alive. His "cause," such as it is, will be served by his martyrdom. Some other twisted soul, tortured by living in a democracy where there is a general level of freedom and tolerance, will doubtless look on McVeigh as a hero. And, as we all know, a true "hero" must die for his cause. When we kill McVeigh and we complete his plan. He becomes the dead "hero," the slaughtered martyr. He gains yet another day, or week, or month of headlines.

But, imagine if we did not kill him? Imagine declaring him "insane," on the very clear theory that no one in his right mind would do what McVeigh did? Reduce his act of terrorism to an act of the irrational, an act of an evil, pathetic mind. Then send him off to live for the rest of his life -- another 40 or 50 or 60 years -- in Terre Haute. Executed today, he goes to his death young, vibrant, defiant -- heroic to the twisted and angry. But, left in his cell he ages. The "where are they now" pictures show Timmy McVeigh with a cane, wrinkled, raving and angry, frustrated to be alive. Losing his teeth and his hair, rotting away slowly. That would be the appropriate message to the next Timmy the Bomber: that we will not give you the satisfaction of your martyrdom. We will not give the attention you crave and dignify your irrational hatred by even calling it a crime. Instead, we will put you away, where you cannot harm anyone, and leave you there. You will grow old, and sick, and eventually, without fanfare or notice, simply die. Such an inglorious and meaningless ending to the life of Timmy McVeigh, many years from now, would not only be the justice he deserves, but also serve as a deterrent to some would-be mass killer, who would use the death of others as a vehicle for his own fame. It would also send a message that the United States will not lower itself to the level of the Timmy McVeigh's of the world.

April 23, 2001
[a shorter version of this column appeared in USA Today on April 19]

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Discussion

• McVeigh should not be executed. The only group that wins will be the US Government and the lawless alphabet agencies that set up McVeigh for a fall on this. The evidence, the coverups, the unbelievable attempts by the (un)justice dept to convinve the public that McV acted alone and could carry this out, along with the fact that McV has not said anything in public, mostly "interpretations" by others. Even Hoppy Heidelberg, the ONLY grand juror to really ask any questions -- ACCORDING TO LAW -- is totally skeptical as he was thrown off the grand jury and had lots of evidence that McV did not act alone, and that the usual govt. suspects in their Kantian attempts at control used him to get more power and control over the American people. And legal representation? Are you kidding? His attorneys rolled over as part of the coverup. Explain the 8 figure payment they received as "public" defenders? I see Finkleman's article as just part and parcel of the big lie.

  Scott Monroe
  New York

• Dear Professor Finkelman,

  I respectfully disagree with your position on the execution of Timothy McVeigh. More importantly, however, I vehemently disagree with your position that "so many" death penalty cases involve the conviction of the wrong man. While there have been a few recent cases trumpeted by the fervently anti-death penalty media, juries rightly convict capital defendants every day in this country without the media or law professors ever taking note.

  The true injustice of the capital punishment system is that those rightly convicted and sentenced to death can forestall their sentence for a lifetime while those opposed to the death penalty bemoan the fact that capital punishment is not a deterrent. Of course it is not a deterrent if endless and entirely frivolous appeals prevent death sentences from ever occurring.

  You proclaim that justice will be served by forcing McVeigh to rot in jail. Nevertheless, every day he remains alive he gets to read, write, think, listen to the radio, watch tv and enjoy countless other minor, perhaps simplistic, pleasures. Not one of the 168 victims, many of them tiny children, will ever get to enjoy even those most basic pleasures. Where is the justice in that?

  Christian Trabold

• Dear Dr. Finkelman,

  I do not share your view that some how clemency must prevail. There is no remorse nor an iota of conscience. In some ways in is another Charles Manson. Devoid of morals and a threat.

  There is no demonstrated evidence that re habilitation or counselling would or could bring about a "conversion on the road to Tarsus".

  He is the mass murderer of completely innocent people who somehow got caught in his premeditated act.

  The law provides for and has imposed the death penalty. It may go against our social conscenience or religious beliefs.

  Paul Alexander
  lawyer
  Waterloo Ont. Canada

• I do not believe in the death penalty--I have written about it in my book Issues Too Hot To Handle. I became a convert after reading Mark Umbright's book "Crime and Reconciliation." However, Tim McVeigh exuded an arrogance that could not be ignored. He showed no remorse and even in death, his silent defiance and his adoption of Invictus, really smacked at the victims of his bombing of the Federal building in Oklahoma. If McVeigh had problems with the government he should have sued them, but we cannot allow individuals like him, every time they are angry with the government to blow up buildings and kill innocent people in the process and call the deaths of babies collateral casualties.

  I cannot shed tears for McVeigh because he has created more difficulty for the case against the death penalty. And you should not either.

  Rev. Terrence D. Griffith

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