Growing doubts about death penalty

DYCKMAN
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By MARTIN DYCKMAN

TALLAHASSEE -- Recent national polls noted the intriguing fact that there are many more Americans who want Timothy McVeigh dead than who claim to believe in the death penalty.

Inconsistency doesn't necessarily mean hypocrisy in this instance. Not all abolitionists think alike. Some of us object to capital punishment not so much in principle as in practice. If it could be reserved for a select, richly deserving few, we wouldn't be so concerned about it. Minimum safeguards would include a unanimous jury recommendation, exclude the mentally ill and retarded and disallow death when the conviction turns on a confession, a jail-house snitch or eyewitness identification, all of which are untrustworthy.

And indeed McVeigh would seem to be the perfect candidate, no matter what might turn up in those belated FBI documents. He is guilty beyond even imaginary doubt. He coldly calculated and brutally carried out the mass murder of innocent people. He isn't sorry, or if he is, he won't admit to it.

That does not, and should not, satisfy those who believe, as LeRoy Collins did, that it is always wrong for the state to take life except in self-defense. That aside, there are at least two other things wrong with it.

It's what McVeigh wants: his perverted martyrdom.

And it will be too easy on him.

A more fitting punishment would be to lock him in a cage, dispose of the key and post on a wall beyond his reach the photographs of the 168 people he killed so that they would haunt him day after day after day. Then I would wish him a long, long life.

But of course it would not occur to the president to do this, and if it did, some court would probably find it to be cruel and unusual.

McVeigh's execution, however popular, is unlikely to appease growing doubts among the American public as to how fairly or reliably the death penalty is imposed, or to relieve American politicians of their moral obligations in the matter. Gallup polls show public support slipping from 80 percent in 1994 to 66 percent this year. Andrew Kohut, director of the Pew Research Center for the People and the Press, noted in a New York Times op-ed article last week that religious belief has become the most common factor in opposition. Those who believe it is always wrong and those who believe it is too often wrong could easily become too formidable an opposition for politicians to ignore.

Even Florida's politicians, who tend to profess the death penalty as if it were an article of religious faith, have seen a little light. The recent session prohibited future death sentences for mentally retarded people and provided for DNA testing whenever it might be dispositive to the innocence claim of a convicted prisoner. But that's as far as the light went, because the Legislature also proposed to make the death penalty an explicit provision of Florida's Constitution and the House leadership thwarted an attempt to set 18 as the minimum age for a death sentence.

The constitutional amendment changes Florida's prohibition against cruel or unusual punishment to the federal phraseology, cruel and unusual. It also requires Florida courts to follow the U.S. Supreme Court's lead in interpreting the phrase, which is invariably harder-line than that of the Florida Supreme Court. This would apply to all criminal cases, not just death sentences.

The amendment was promoted by Sen. Locke Burt, R-Ormond Beach, who is running for attorney general, an office that used to presume more respect for states' rights.

The ostensible purpose of the constitutional amendment is to prevent the Florida Supreme Court from ever declaring the death penalty unconstitutional.

The court hasn't given the faintest hint of wanting to do that; to the contrary, it can no longer muster a dependable majority even to set aside death sentences (like that of Gregory Mills, whose jury voted against death) that deserve to be thrown out. The amendment is more about spite and political posturing.

Burt and other legislators are petulant that the court threw out a similar amendment, after the voters had approved it in 1998, because of a misleading ballot summary. But the purpose behind that amendment was to protect the electric chair, which the Legislature itself finally retired in favor of lethal injection.

With that issue out of the way, the only immediate effect of the amendment would be to overturn the state court's ban on imposing the death penalty on defendants who were 16 when they committed their crimes. Pressed during Senate debate, Burt admitted that this was a "theoretical" result. However, many other lawyers say it's not just theoretical but likely.

To mollify these fears, the Senate passed, separately, a bill to set the minimum age at 17. The House, unsurprisingly, let it die on adjournment.

So as matters stand, the people of Florida will vote next year on whether to treat 16-year-olds as if they were no less responsible for their actions than Timothy McVeigh. You don't have to be an abolitionist to see something horribly wrong in that.