Seeking justice: Timothy McVeigh and the death penalty

Christian Century, July 2, 1997 by David Heim

This is the crime that the death penalty was designed for," prosecutor Beth Wilkinson told the jury in the Timothy McVeigh trial. She was at least right that the case of McVeigh, a white man who was convicted in a meticulously run federal courtroom and who had the benefit of a $10 million legal defense team, raised the issue of capital punishment in unusually stark moral terms, without the usual sociological and procedural complications. Assuming in this case that justice was done--that racial prejudice, judicial incompetence and legal arbitrariness were not factors in the verdict and sentencing--is it wrong for the state to put to death the man who planned and executed the murder of 168 people?

The debate in the media featured lots of reports on what the victims' families and friends had to say. For Roy Sells, whose wife was killed in the Oklahoma City bombing, "it's very simple. Look at what he's done. Could anyone deserve to die more?" But others looked for some form of reconciliation and peace that did not involve an execution. "We've had enough killing," one family member said. Bud Welch, who lost his daughter Julie, recalled what she had once said to him: "Dad, the death penalty doesn't teach us anything but hate."

This emphasis on the survivors' feelings, as fascinating and moving as many of the stories were, confirmed a disturbing sentiment already abroad in the land: the notion that sentencing is about satisfying the survivors' sense of loss, and that the jury's job is somehow to enact the penalty that the survivors would want, whatever that is.

But there is a reason the case was titled United States v. Timothy McVeigh, not Roy Sells, Bud Welch et al. v. Timothy McVeigh.

McVeigh violated more than individual lives and individual rights; he profoundly disrupted the moral order by which we all live--the moral order which holds life as sacred. The jury's task was not to act on behalf of the victims and their families but to act on behalf of all of us in deciding on a punishment that fits the crime.

The distinction is important. Once we decide that legal punishment is simply the way that victims and their surrogates get back at the perpetrators of crime, then we have defined punishment as revenge. And if that is the case, then why not let revenge fully have its way? Why not let the survivors torture McVeigh, amputate a leg and burn him before killing him?

In his syndicated column Garry Wills claimed that capital punishment is in fact simply an act of revenge. And the only reason we don't engage in torturing or dismembering the guilty person, Wills suggested, is that we want to hide from ourselves "the face of our own vengefulness."

But this is an overly cynical view of the jurors' actions. I do not think they were motivated by the desire for revenge as much as by the sense that so enormous a violation of the moral order by which we live requires a proportional punishment. In any case, Wills's argument concedes too much to a society that already tends to take a merely therapeutic view of legal punishment (punishment should make the victims feel better) and which seems to be losing the sense that there is an objective moral order, the violation of which calls for punishment.

Even granting that there is an element of revenge in some juries' decisions, it should be noted that people's confidence that justice will be rendered by the government has historically acted as a brake on individual acts of revenge. The less people believe that justice is being rendered by the legal system, the more likely they will be to seek revenge as individuals.

Some of the family members who opposed the death penalty for McVeigh observed that his execution could not bring back their loved ones. Though this perception surely represents an important moment in their own grief, it does not address the rationale for punishment. Legal punishment rarely serves to restore the original order of things. Sentencing a rapist to 20 years in prison does not undo the violation and restore the victim's peace of mind or capacity to trust others. But that does not mean that such a sentence is unjust.

In a recent commentary, Philip Wogaman, a United Methodist pastor and ethicist, observed that "the church understands, as a deep spiritual and psychological truth, that the death of a murderer cannot bring healing peace to surviving loved ones." Here again the argument slides into therapeutic language. It's true that the legal system cannot provide healing peace to the individual. But it is not designed to do that. It is designed to provide justice.

Philosopher Walter Berns was quoted by Time as saying that capital punishment "serves to remind us of the majesty of the moral order that is embodied in our law and of the terrible consequences of its breach." Though many Christians, believing that God and only God is the giver and taker of life, will part company with Berns on the morality of capital punishment, they should be able to agree with him about the majesty of the moral order and the terrible consequences of its breach.