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April 24, 2005 - An Oklahoman Turns European

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The death penalty has been discussed before in these pages.  For example, October 12, 2003 Reviews contains an extended discussion of Scott Turow’s book Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty (Farrar, Straus & Giroux: 166 pp., $18), and December 21, 2003 - The Culture of Death: Who We Should Kill and Why is a discussion of whether Saddam Hussein deserves the death penalty.  In this - July 25, 2004 - The Company We Keep - you will find a discussion of which countries, like us, employ the death penalty.  In this - March 6, 2005 - A Minor Matter - you will find opinion on the recent Supreme Court decision that we really ought not execute minors.  And here - March 20, 2005 - An Idea Whose Time Has Come - you will find a discussion of the idea proposed by a professor of constitutional law at UCLA that not only should we have a death penalty, we should have extended public executions involving torture and pain, and the family of the victim should be the ones inflicting that pain and death – but he doesn’t think we will go for amending the constitution to allow that.  And then he changes his mind.  Maybe the whole idea wasn’t that good an idea.

So it’s not as if this issue hasn’t come up before.

Anyway, the nub of the matter, as Turow puts it in his book, is that, on the one hand, some crimes, like murder, are so extreme that they require the most extreme retribution.  On the other hand, state-sanctioned killing reduces our society to its lowest common denominator, making all of us complicit in the taking of a life. Fine.

The basic question?  "Should a democratic state ever be permitted to kill its citizens?  If the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens?"

Who knows?

Those enthusiastic about the death penalty see it as "a statement of moral value" to be applied widely and often, to say who we are - to clearly show what we just won't tolerate.  And there may be some merit in that.  But some of us won’t tolerate the concept that the state can decide to take anyone’s life – as the decision is so often flawed, and even when it isn’t flawed, shows something else about us all.  We don’t like what it shows.

And round and around it goes.

And that brings us to April 19, the tenth anniversary of the Oklahoma City bombing – the anniversary of the day that McVeigh fellow blew up the federal office building there, killing 168 people and injuring about 500 others.  Well, he was executed for that.

And that brings us to Emmett "Bud" Welch, 65, whose daughter, Julie Marie, was one of those who died ten years ago in the bombing.

In a retrospective published on the editorial pages of the Buffalo News (Buffalo, New York) and noted on the web log “Talk Left” here, buried deep in the long retrospective you get this –


Emmett "Bud" Welch, 65, whose daughter, Julie Marie, died in the blast, has found his own way to deal with the pain. The bombing turned Welch, a former gas station owner, into an international crusader against the death penalty and human rights violations.

Welch has spoken about human rights in London, Rome, Kenya and dozens of other places all over the world. "For 11 months after the bombing, I dealt with my situation by drinking. I'd go to the bomb site two or three times a day, with my head splitting from a hangover," Welch said. "Finally, one day, I said, "What are you doing to change your life?'

"I remembered how Julie was so adamantly opposed to the death penalty. She felt so strongly, she started an Amnesty International chapter in her high school at age 16."

… Welch opposed the death penalty, too. He decided that the best way to honor his daughter was to tell the world some of the things she would have said. Welch's crusade has upset some people in Oklahoma City, who believed that both McVeigh and co-conspirator Terry Nichols deserved the ultimate punishment.

"I forgave Tim McVeigh before he died," Welch said. "I don't think everyone has to forgive, but if you are able to do it, the feeling you get in your heart is tremendous. I am at peace."


Well, drinking heavily to deal with emotional trauma is not uncommon.  But there are those hangovers.  And nothing gets resolved.  The question is what is an effective alterative to drinking heavily.

You can work to get the mad bomber(s) executed – painfully and publicly and with your own participation if allowed – or you can do this, you can pull a "Bud" Welch.

And which you choose says what about you, and what you will not tolerate?

Ah, what would Jesus do?  Don’t ask Scalia or the evangelical right.  You actually might, for a refreshing change, decide to ask a Christian, one of the old-fashioned kind. Y ou might be surprised.

Or you could ask one of those secular Europeans who think the idea the state should be allowed to kill its citizens is just so… mistaken.  Ah, you have to assume this Welch fellow is being told that, if he feels this way, he should move his sorry ass to damned France.

Let’s see.  Where would you rather be?  Central Oklahoma?  Paris?  Decisions, decisions….


On related note, Emily Schmall writing in SALON.COM offers some thoughts on recent events in New York, and interviews Richard Dieter, executive director of the nonprofit Death Penalty Information Center. See The executioner's swan song: Reflecting growing national unease with the ultimate punishment, New York strikes down its death penalty law from April 16.  (Newsday covers the story here on April 12.)

Schmall’s summary?


Last June, New York's highest court struck down a provision of the state's death penalty statute as unconstitutional. The provision required trial courts to instruct jurors in capital cases that if they failed to unanimously agree on a penalty of either life imprisonment or death, the court would set a sentence of life with the possibility of parole. In People vs. Stephen LaValle, the Court of Appeals concluded that jurors might sentence a defendant to die not because they thought he deserved it, but because they feared he might someday go free. It was up to the state Legislature to fix the law in order to reinstate the death penalty. On Tuesday, the Codes Committee of the General Assembly chose not to.


That, in effect, takes the death penalty off the books for now in New York. Schmall does note that thirty-eight states still have death penalty statutes on the books in one form or another, and Kansas' statute was deemed unconstitutional and awaits a federal review; Connecticut, Nebraska and New Mexico have come close to abolition, and Illinois' moratorium on executions has lasted through two governors, one Republican and one Democrat. That’s something.

And we are reminded of recent cases – as covered in these pages, in March, Roper vs. Simmons, which removed juvenile offenders from the possibility of a death penalty. And curiously we see that in Texas, the Supreme Court there has sent back cases for prosecutorial misconduct, allegations of racial biases, and turned over cases where lawyers didn't do a good enough investigation of the defendants' cases. Texas?

And there is the matter of international pressure set against domestic urges, as Dieter notes…


In 1989, there was a global treaty signed and ratified (with the exception of the U.S. and Somalia) to end the execution of juveniles, and in 2002, the European Union submitted a brief calling for an end to the execution of the mentally retarded. But these changes can also be attributed to domestic pressures. The chief way the death penalty is evaluated is the Eighth Amendment, which the court has said is an evolving standard of decency. Fifteen years ago, it was OK to execute juveniles and the mentally retarded. When the public's views are expressed through legislation and juries' by votes, the Supreme Court announces a consensus has been made, and the law quickly acclimates.

It was state legislation that the Supreme Court looked to in both of those cases [Roper vs. Simmons and Atkins vs. Virginia]; it's the direction states were going. They found 31 states that forbid the practice [of executing juveniles] and that number had grown from 15 years ago, back in 1989 [when executing juveniles was deemed constitutional]. That was enough to prove our standards had evolved.


Well, evolved should be revised to “are evolving.”

Note this:


If the Supreme Court were to strike down the death penalty, they would probably do it because the standards of decency have moved against it, but they're not going to do it on their own. It could be so through the will of the people; the court could kind of mop up the final act. They could by finding it unconstitutional. The death penalty will continue to be tested through state-by-state legislative actions, and through litigation of the typical issues that have always been a part of this debate -- innocence as the primary issue.

It is and will remain very difficult to construct a statute that will never make mistakes, and it's becoming more expensive to sentence someone to death. Courts are giving people another review because of possible innocence, to ensure the quality of the review, and because of changes in the Supreme Court. New York estimated that they spent $170 million [to maintain the death penalty system] and have nothing to show for it.


Ah, we will be the last country that finally abolishes the death penalty – but not because it is the wrong thing to do, but rather because it isn’t cost-effective and we mess up on the basic facts of the case at hand.  Well, it’s a start.

Of course, we might continue to execute folks anyway, considering this from the president’s favorite Supreme Court justice: "Mere factual innocence is no reason not to carry out a death sentence properly reached." - U.S. Supreme Court Justice Antonin Scalia, Herrera v. Collins 506 US 390 1993

Oh well.

Still Dieter sees things shifting against the death penalty –


Public opinion is down 50 percent -- that means jurors are half as likely to ask for death. Executions are consequently down 40 percent. And then you turn to legislatures; New York declined to even fix it. Other states are taking more of a reform approach; some are coming close to voting to abolish the death penalty. New Mexico and Connecticut came close, and Illinois continues its moratorium. Kansas is asking the U.S. Supreme Court to review what its state court did, and so its death penalty is pending; it could be that if the Supreme Court doesn't do anything, Kansas will fix it through legislation.


There's a wide range of legislative changes across the country -- 14 states have had commissions to study the death penalty, states are allowing DNA testing on appeal, particularly for death row, and some states are approving defense council review.


Something is afoot.  “Bud” Welch is not alone.

But he’s not arguing for cost-effectiveness or against sloppy prosecutions.  He’s arguing the concept is just plain wrong.

He’ll enjoy Paris, if he lives that long.


"Our ancestors... purged their guilt by banishment, not death. And by so doing, they stopped that endless vicious cycle of murder and revenge."
- Euripides

"'It is the job of thinking people not to be on the side of the executioners."
- Albert Camus (1913-60)


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
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