DEATH OR LIFE?

By ERIC POOLEY

After working so hard to prevent a circus, Judge Richard Matsch was not about to preside over a lynching--or risk seeing the biggest case of his career reversed on appeal. So on Wednesday, with prosecutors ready to explain in grisly detail why Timothy McVeigh deserves death, Matsch ordered the jurors to lock away their feelings and remain "free from the influence of passion." He ruled that government evidence designed to stir those emotions--wedding portraits, poetry, the testimony of a boy who missed his mom--would all be inadmissible.

He might as well have tried to adjudicate a monsoon. That afternoon, Kathleen Treanor took the stand and told about kissing her four-year-old daughter Ashley goodbye and never seeing her alive again. After unspeakable days of waiting, Treanor recovered Ashley's body from the rubble, buried the little girl, and trudged on. Seven months later, someone called from the medical examiner's office. "He said, 'We have recovered a portion of Ashley's hand,'" Treanor testified in a trembling voice that rose as she fought to get through each sentence, "'and we wanted to know if you wanted that buried in the mass grave or if you would like to have it.' And I said, 'Of course, I want it. It's a part of her.'"

That was about all she could manage. Treanor dissolved, her body racked by sobs, and almost everyone in the courtroom dissolved with her. Jurors wept openly, survivors wailed, reporters groped for hankies and sodden bits of tissue. Through it all sat McVeigh, cold and silent as stone. At that moment in that room, it seemed inconceivable that the jury could do anything but sentence him to death--and that anything but simple vengeance would be the reason why. When the day's testimony was over, even Matsch looked shaken. "You're human, and I'm human too," he told the jury. "[But] we are not here to seek revenge against Timothy McVeigh."

His honor may be speaking for himself. "It's revenge for me," admits Roy Sells, a retired federal worker whose wife of 37 years was killed by McVeigh's bomb. "It's very simple. Look at what he's done. Could anyone deserve to die more?"

Those who lost something precious in the blast--their loved one, their limb, their ability to see or hear, their capacity for joy--have earned this point of view. But what about the rest of us? While the horrific scale of McVeigh's crime seems to demand the ultimate penalty, there's something unsettling about the way so much of America is gearing up for a good old-fashioned grudge killing. In a TIME/CNN poll last week, 78% of respondents--82% of men and 75% of women--wanted McVeigh to receive the death penalty. (About the same percentage favored the death penalty generally.) Yet a closer inspection of their attitudes betrays America's conflicted thinking about capital punishment. A 52% majority don't think the death penalty deters people from committing crimes, and 60% don't think vengeance is a legitimate reason to execute someone. Then what is America's honest rationale for putting this man, or any other human being, to death?

McVeigh is a slender reed on which to hang so much human grief and loathing. His opacity--the blank look punctuated by occasional bursts of defense-table bonhomie--is especially revolting to those who sense that he fancies himself a prisoner of war on trial for collateral damage that he sees as the inevitable consequence of combat. That makes people want to see him dead, but it may be the best reason not to execute him--to deny him his bid for martyrdom, to keep him earthbound and watch him slowly wither, not a hero to his cause but just another old jailbird shuffling around his cell.

As the new poster boy for capital punishment--perhaps the most effective since Ted Bundy--McVeigh is causing so much discussion that "it's as if we have not had a death penalty until now," says Bryan Stevenson, director of the Equal Justice Initiative of Alabama, a nonprofit organization that represents capital defendants. Foes of the death penalty find this troubling, since McVeigh's case is so unusual, but they should be grateful to him for reopening a debate that was essentially over in America. Three-quarters of the public--along with the Congress, the President and the courts--is solidly in favor of capital punishment. In many states, executions--there have been 34 of them since the beginning of 1996--have become workaday affairs, so routine they barely make the papers or draw protesters to the prisons.

By stirring up debate, McVeigh gives the abolitionists another chance to make their case by reminding people how little he has in common with the vast majority of death-row inmates. Where McVeigh is an unrepentant, white mass murderer who planned carefully, killed wantonly, worked to cover his tracks and enjoyed a competent, $10 million defense, most death-row inmates are poor people, disproportionately black or Latino, often retarded or abused as children, and are represented by court-appointed greenhorns and burnouts better suited to traffic court--or, in their appeal stage, by no one at all. And where the case against McVeigh seems gold-plated, other defendants are sentenced to death on the basis of flimsy evidence, jury whim, prosecutorial misconduct or the luck of the draw. Stephen Bright, director of the Southern Center for Human Rights, says that in three capital cases in Houston recently defense lawyers were observed to be sleeping during the trial. All three convictions were upheld on appeal, and one of the defendants has been executed.

McVeigh's case is just so clean. "The danger is [when] somebody says, 'If ever there was a case for the death penalty, this is the case,'" says Bright. "The problem is that we never limit it to that case. We have more than 3,000 people on death row, many without lawyers, and the overwhelming majority are not the Timothy McVeighs or Ted Bundys or John Wayne Gacys." Simply put, the most powerful argument against the death penalty is that it is dispensed by a justice system that favors some defendants over others. In February, the American Bar Association called for a moratorium on executions because "the administration of the death penalty, far from being fair and consistent, is instead a haphazard maze of unfair practices with no internal consistency."

McVeigh's case gives the country a chance to confront more clearly the issue of why America, alone among Western democracies, puts people to death. Is capital punishment meant to benefit society or provide comfort to the victimized? On the question of whether capital punishment deters crime, McVeigh doesn't shed much light; there's no deterrence value in executing a zealot (true believers, after all, want to die for the cause). But deterrence is always murky; there's no proof capital punishment discourages crime by anyone other than the criminals who get executed. Death-penalty proponent Glenn Lammi, chief counsel of the legal-studies division of the Washington Legal Foundation, admits that "there are no convincing studies" tracking the relationship between the death penalty and the crime rate, because isolating one variable in a sea of factors (poverty, gun availability, alcohol use, policing techniques) is beyond our abilities. In a 1995 poll, 67% of police chiefs said they did not think the death penalty deters homicide.

If faith in deterrence is dying (and faith in rehabilitation is virtually dead), belief in retribution is alive and well. Death-penalty foe David Bruck calls retribution "the only moral reason for punishment. It's our way of expressing our common beliefs in what's right and wrong." The question is what form retribution should take. At its most elemental level, retribution blurs with revenge. "Some animals deserve to be put off the face of the earth," explains Richard Brill, a retired government cartographer in Denver. But there's a distinction to be made between revenge--a hot, deeply personal desire to hurt the malefactor--and retribution--a statelier and more carefully considered decision to uphold the values of society.

At its most elevated level, as in the writings of the philosopher Walter Berns, this position assumes real moral weight. "Capital punishment," writes Berns, "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... The criminal law must be made awful, by which I mean awe-inspiring, or commanding 'profound respect or reverential fear.' It must remind us of the moral order by which alone we can live as human beings." Which is to say, some animals need killing, if only to remind the rest of us animals how to live. By this standard, state executions evince more reverence for life than prison sentences that treat murder as something punishable by a lifetime's worth of weight lifting and bad TV.

As usual in this debate, the two sides, both convinced of their essential rightness, talk past and around each other. Abolitionists like Bruck argue that life without parole is in some ways more retributive than death, not only because the convict has to accept his punishment for the rest of his days but because "it makes us more morally energetic about punishment. We wake up each morning to punish some more." And the death sentence, abolitionists believe, implies that certain individuals have lost the right to call themselves human, an idea that runs counter to the Founding Fathers' vision of inalienable rights that can neither be taken away for bad behavior nor awarded for good conduct. Those rights, says Amnesty International deputy director Curt Goering, "apply to all of us--even the worst. And in the end, they protect us all."

Or at least most of us.

In Alabama, 69% of those executed since 1976 were black. In Georgia the figure is 55%. Even though blacks are more likely than whites to be the victim of homicide, the overwhelming majority of capital cases involve crimes committed against people who are white. The disparity was attacked in a landmark 1987 case, McClesky v. Kemp. Warren McClesky, a black man convicted of killing a white police officer in Georgia, based his appeal on a study that showed killers of white people were four times as likely to get the death penalty as killers of nonwhites. That wasn't enough to persuade the U.S. Supreme Court, which found in a 5-to-4 vote that the statistical disparity didn't prove that McClesky had been sentenced to death because of skin color. McClesky's charge was supported by a 1990 report by the General Accounting Office, which found that blacks who kill whites are sentenced to death at a far higher rate than whites who kill blacks.

Bill Clinton, who during his 1992 presidential campaign refused to use his power as Governor to stop the execution of a brain-damaged black convict in Arkansas, told TIME in an interview last week that he is comfortable with the way the death penalty is applied in America. Revisiting the question of discriminatory sentencing as part of the race-relations initiative he plans to unveil this week, he said, "would not be a fruitful line of inquiry. The Supreme Court has made a decision there, [and] overwhelming majorities of all racial groups favor capital punishment."

Like the President, most Americans just aren't sweating the fine points of the capital-punishment debate. While executions are being abolished in most parts of the planet--exceptions include Iran, Iraq, China, Yemen and some former Soviet states--Americans seem to want more of them, with fewer appeals and delays. Thanks to Congress and the courts, they're getting their wish--especially in the "Death Belt" states of Texas, Virginia, Florida, Missouri, Louisiana, Georgia, Arkansas and Alabama, which together account for 78% of the executions America has seen since the Supreme Court reinstated the death penalty in 1976.

While states in New England and the Northern Midwest and Pacific Northwest either forbid capital punishment or rarely use the laws on their books, in the South putting people to death has become a part of life. That is especially true in Texas, which has had 127 executions since 1976, almost a third of the national total. Today 448 people wait on death row in Texas. "If they keep going at the rate they're going," says Stephen Bright, "it won't be long before Texas will have executed more people than all the rest of the states put together. They execute so many people that nobody pays any attention at all."

Every year about 300 people receive the death sentence in this country and about 35 leave death row--usually with the aid of electricity or an intravenous drip. Most of the arrivals and all the departures since 1976 have been state cases. If McVeigh gets the death penalty, he will be only the 13th federal prisoner sent to death row since 1976. None of the others have yet been executed, a reminder that those aching for McVeigh's death had better stay patient.

Why do appeals take an average of nine years? When the Supreme Court reinstated capital punishment in 1976, after a brief hiatus, it stressed that extreme vigilance should be applied in capital cases since death is, after all, the "most irrevocable of sanctions." But the U.S. has spent the past 20 years trading that idea in for the ideal of quick justice. The Supreme Court and the lower levels of the federal judiciary have steadily narrowed the methods of appeal. In 1984 and 1986, for example, the Supreme Court ruled that defendants were not entitled to special appeals reviews and that striking jurors from capital cases because they oppose the death penalty was constitutional. In McVeigh's trial, blast survivors who oppose capital punishment were barred by the prosecution from taking the stand during the penalty phase. Congress got into the act with the 1988 and 1994 crime bills, which included the first modern federal death-penalty statute and extended the death penalty to more than 50 different offenses. It was under one of those new statutes that McVeigh was accused of the murder of federal law-enforcement officials.

The death system, in fact, needed reform; the typical capital appeal costs the state more than imprisoning someone for life. Congress responded with the impressively titled Antiterrorism and Effective Death Penalty Act of 1996, which makes it increasingly difficult for defendants to secure federal review of their cases. Thanks to such laws, the appeals process won't be taking nine years anymore--and those falsely convicted will have less chance of leaving death row alive.

How many on death row are innocent? All or none, depending on whom you ask. Since 1976, however, 65 have escaped the death house when their convictions were overturned. Supreme Court Justice Thurgood Marshall once wrote, "No matter how careful the courts are, the possibility of perjured testimony, mistaken honest testimony and human error remain all too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some."

In 1985, to cite just one example, Rolando Cruz and another Chicago man were sentenced to death for the 1983 abduction, rape and murder of 10-year-old Jeanine Nicarico. The prosecution based its case on a "vision statement" from Cruz--a dream about the murder he'd allegedly recounted to police. The conviction was overturned, and Cruz was retried in 1990, but another man--who had actually confessed to the crime--was not allowed to testify, and Cruz was convicted on the same dream evidence. In 1994 the state Supreme Court overturned Cruz's second conviction, and the government began preparations for a third trial; this time the key prosecution witness recanted, and dna evidence cleared him. Cruz was acquitted in November 1995. Three prosecutors and four cops have been indicted in the case. After 11 years, Cruz is free--but under current federal law limiting appeals, he might not have fared so well.

The guilty verdict they had awaited for two years, an Oklahoma City survivor said last week, "wasn't enough." Would the death penalty be enough? For a crime this extreme, can anything be enough? The survivors know that "closure" is a cruel hoax, that the hole McVeigh created in their lives can't be filled by court proceedings, verdicts, even executions. Perhaps that is why a surprising number of them emerged this week to say they oppose death for McVeigh and believe they will heal faster if he is spared. No research indicates that survivors are more "satisfied" or that their anguish is lessened when the murderer is put to death. "What [survivors] are doing when they look for someone else's death is to deal with the crime and punishment," says Pat Bane, executive director of Murder Victims' Families for Reconciliation. "Instead, they need to deal with their loss and grief. That is where they find closure."

One of the dirty little secrets of the death penalty, says Franklin Zimring, director of the Earl Warren Legal Institute at the University of California, Berkeley, is the way it "aggravates the suffering of people it's supposed to protect." Because capital punishment presents death as the target, the defendant "wins" for as long as he avoids execution. "We create a recipe for enragement and frustration," Zimring says.

Alabama has been doing doing its bit to hit the target. The state implemented measures to speed up execution of some of the 153 people on death row, even threatening to set execution dates for those who have not completed their appeals. So far this year, the state has put just four men to death, but even with such limited numbers, there is a no-big-deal sense to the proceedings. "We keep it real low-key," says veteran corrections officer Charles Bodiford.

Last Friday at 12:10 a.m., it was Henry Francis Hays' turn to die. His execution was cause for some self-congratulation in Alabama because, unlike most of those who have been put to death before him, Hays is white. What's more, he is the son of a Ku Klux Klan leader who, the prosecution said, ordered him to lynch a black as a "show of strength" in 1981, after a jury failed to convict a black man accused of killing a white police officer. Hays and a friend snatched 19-year-old Michael Donald off a Mobile street, then beat, cut, strangled and strung him up. Sixteen years later, with Donald's older brother Stanley watching intently, Hays was strapped into the bright yellow chair inside Holman Prison in Atmore, Ala. Asked for his last words, a repentant Hays mouthed "I love you" to Stanley Donald, made a thumbs-up sign and died when the first high-voltage cycle slammed into his brain.

At that moment, "I believe my brother did a flip in heaven," said Donald a few minutes later, but he wasn't feeling so pleased. After 16 years of waiting, he said, "justice was not done tonight. There is no such thing as closure," he mused. "I would rather have had [Hays] in a ring one-on-one for 15 rounds and whipped him the way he whipped my brother."

Outside, in the impenetrable Alabama night, nobody had bothered with a protest.

--Reported by Sally B. Donnelly and J.F.O. McAllister/Washington, Sylvester Monroe/Atmore, Andrea Sachs/New York and Richard Woodbury/Denver, with other bureaus

With reporting by SALLY B. DONNELLY AND J.F.O. MCALLISTER/ WASHINGTON, SYLVESTER MONROE/ATMORE, ANDREA SACHS/NEW YORK AND RICHARD WOODBURY/DENVER, WITH OTHER BUREAUS