despite Timothy McVeigh's death sentence last month in federal court, the tough decisions about our legal system's handling of the Oklahoma City bombing are not all behind us. In the pending Oklahoma state prosecution of McVeigh, a grand jury is hearing new evidence about a larger conspiracy. On a more political note, the House is poised to approve a bill, which passed 98-0 in the Senate, that would deny McVeigh a military burial.
And then there's a particularly chilling yet practical issue that has yet to be addressed: Assuming McVeigh's conviction and sentence are upheld on appeal, who will be allowed to watch him die?
It's not an idle question. In recent years, most death penalty states have, as part of a broader effort to let victims participate in the criminal justice process, granted victims' families the right to attend executions. An Oklahoma law gives family members of deceased victims the right to be present (though no mention is made of surviving victims). It was passed because of the tenacious efforts of one state senator, Brooks Douglass, who wanted to watch the execution of the man who had killed his parents 17 years earlier. "There is no other party that has more to benefit from seeing the killer executed than a family member," Douglass said recently, less than a year after watching his parents' murderer die.
The federal government, which last put a prisoner to death in 1963, has no policy on the issue, but would likely follow the lead of the states. According to the National Victims Center, only one state, New Jersey, prohibits family members from attending executions. (Megan Kanka's parents, therefore, will not get to watch the execution of child molester Jesse Timmendequas, who was sentenced to death on June 20 for killing their 7-year-old daughter.)
Whichever correctional system administers McVeigh's sentence -- state and federal officials may well race for the opportunity -- a special rule regarding witnesses will have to be adopted in this case because of the large number of potential observers. No death chamber could accommodate the hundreds, even thousands, of bombing victims and relatives who might line up to see McVeigh die. One solution mentioned in the Oklahoma statute would be to set up a closed-circuit broadcast for the victims and families. This was done at the trial, since the courtroom also could not accommodate all of the rightful spectators.
However, the possibility that McVeigh's execution will be televised for the families raises another issue: Why not broadcast it for the whole world to see?
This idea might at first seem a bit gruesome. But it would actually be consistent with the idea, championed by many victims' rights advocates and now enshrined in more than a dozen state laws, that witnessing the death penalty can bring solace to emotionally scarred parties in the audience. Over the last two years, a number of observers have claimed that we are all, in a sense, victims of the Oklahoma City bombing. From this logically follows the idea that televising McVeigh's final moments might help the whole nation overcome this internal wound to the body politic.
There's a question of freedom of the press here, too. In recent years media representatives ranging from a San Francisco public television station to Phil Donahue have claimed that the First Amendment entitled them to bring cameras into the death chamber. Explaining his decision to join a lawsuit by a condemned man who wanted his execution in North Carolina televised, Donahue said he hoped to "shine the disinfectant light of a free and unfettered press on a matter that has divided the nation." The refusal of courts to grant such access has been criticized by legal scholars. For one thing, it's not like a trial where there is a danger that televising the proceeding will affect the fairness of its outcome. The decisions have already been made.
Most importantly, televising McVeigh's execution might show us the real gravity of capital punishment. As the number of annual executions climbs steeply, the death penalty is becoming routine and unremarkable. Executions once were spectacles that took place in public squares full of onlookers -- often rowdy, but laden with debate and social meaning. In modern times, the trend has been to impose death with increasingly bureaucratic quietude.
Punishment occurs in the middle of the night, far from public view, hardly an ideal arrangement if it is meant to be a general deterrent to crime. The law's violence is sanitized with ever more bloodless forms of killing, culminating now in lethal injection. There are even doctors on hand, apparently to make sure that the inmate isn't suffering -- too much. And when real suffering does occur, as when executions are botched (which is all too often), the absence of public scrutiny usually means no one is held accountable. "Not only must people know," wrote French theorist Michel Foucault about executions, "they must see with their own eyes. Because they must be made to be afraid; but also because they must be the witnesses, the guarnators, of the punishment."
Some death penalty opponents fear that televising executions would only desensitize us further and make capital punishment more popular. Violence on TV is, after all, tediously common. But stripped of all the flashy accouterments of shoot-'em-up fantasy, the unadorned single-camera, wide-angle shot of a man being killed in the name of the people should be strikingly unique. (How would the V-chip respond?) Indeed, going live from the death chamber may be the best way to spark a meaningful debate in this country about why we still cling to the death penalty when all other industrialized nations have abandoned it. As one court said about the issue 20 years ago, "If what the government is doing is so terrible that the public may not see it, perhaps the government should not be doing it."
The real challenge should be to the death penalty's supporters: If they are confident enough to impose this ultimate sanction, which allows no room for error or second thought, then they should be confident that their fellow citizens will still choose this option even after its cruel details have been exposed.
Let us all be witnesses to the execution. We may not like what we see, but at least we'll finally see what so many of us think we like.
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