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Jewish World Review April 10, 2001 / 17 Nissan, 5761

Nat Hentoff

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Consumer Reports

A case for public executions -- TIMOTHY McVeigh, convicted of the gruesome Oklahoma bombing, has decided not to appeal his death sentence. The execution date has been set for May 16.

The Federal Bureau of Prisons said it would consider permitting a closed-circuit telecast of the execution so that many of the bombing victims' relatives and bombing survivors can watch. On learning this, McVeigh -- in a letter published in the Oklahoman -- wrote that he is not opposed to the closed-circuit proposal. But he then advocated "a true public execution -- allow a public broadcast."

His lawyer, Rob Nigh Jr., told the Oklahoman that McVeigh's request is logical because his client "is in favor of public scrutiny of government action -- including his execution." If it is the collective judgment of the American people," said Nigh, "that capital punishment is a reasonable response to crime, we need to come to grips with what it actually is."

McVeigh's wish that his execution be nationally televised has been rejected by the Federal Bureau of Prisons.

But McVeigh has a valid point. If the state can take a human life, then why not allow it to be seen by those Americans who want to know what actually happens when the state lawfully kills?

Last July, U.S. District Judge Vaughn Walker of the Northern District of California ruled -- despite opposition by state corrections officials -- that the news media should be permitted to witness executions from "the moment the condemned enters the execution chamber through to, and including, the time the condemned is declared dead." Previously, the few reporters allowed to watch could not witness the entire procedure.

Televising an execution was not an issue in that California case, but Judge Walker pointed out that "the First Amendment compels at least some public access to execution proceedings."

The judge then also brought in the Constitution's Eighth Amendment prohibition of cruel and unusual punishment with regard to executions. "A punishment," he said, "satisfies the Constitution only if it is compatible with the evolving standards of decency which mark the progress of a maturing society." Therefore, Judge Walker continued, "The public's perception of the amount of suffering endured by the condemned -- and the duration of the execution -- is necessary in determining whether a particular execution protocol is acceptable under this evolutionary standard."

But why limit the public's perception only to indirect reporting of the execution? Let the public, in whose name executions take place, also be witnesses!

Judge Walker made another point that also relates to possible public televising of executions -- although he was only ruling on limited media access.

He wondered whether methods that cause "excessive pain" actually do amount to "cruel and unusual punishment" under the Eighth Amendment to the Constitution. If the public, at home, can judge what happens in the death chamber from the beginning of the execution to the condemned person's last breath, that experience, the judge said, could lead "a majority of the public to decide that no method of execution is acceptable" in a truly civilized society.

We all believe, I think, in open government. Why not open executions?

Until that happens, it might be worthwhile to consider a proposal made in The National Law Journal five years ago by Jeremy Epstein, a former attorney for the United States. He suggested that New York state -- and, presumably, other states -- require the presence, at executions, of the judge and jury who were responsible for sending the condemned person to his death. That was the practice in New York state in the early 19th century.

Requiring them to be present, wrote Epstein, "should focus the attention of those imposing the punishment on the gravity of their act. Jurors could not simply depart from the courtroom and leave the state with the unpleasant task of disposing of the defendant."

But might not that requirement traumatize the jury and the judge? Well, wrote Epstein, "The impact of the act (of execution) is at least as traumatic on the defendant -- and will also last during what remains of his life."

We, as a people, demand accountability of our public officials. Surely, we should not shirk our duty to witness -- and thereby be accountable for -- the executions that we permit.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


04/03/01: At colleges, a fear of free speech
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03/20/01: Torturers as trading partners
03/13/01: Supreme Court rewrites Constitution
03/06/01: Testing compassionate conservatism
02/27/01: Are certain lives not worth living?
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02/13/01: What a web!
02/06/01: All that jazz
01/30/01: History will also judge Robert Ray
01/23/01: History will not absolve him
01/08/01: Will Rice remember Rwanda?
01/02/01: Expanding the culture of death
12/26/00: Media should stop misleading public about High Court's actions
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12/11/00: Caucus speaks out on slavery in Sudan
12/04/00: This year, give the gift of the Constitution
11/27/00: Is capital punishment a deterrent?
11/20/00: Punishing the Boy Scouts
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10/16/00: Nader's American history lesson; or: Silencing Jesse Jackson
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06/26/00: Burning 'bad' ideas at college
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03/03/00: The ACLU violates its principles --- yet again!
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10/26/99: Disappeared Americans
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10/11/99: Bill Bradley's speech tax
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09/27/99: Our 'Americanism'-ignorant generation
09/20/99: ACLU better clean up its act
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08/23/99: Lawyerly ethics
08/16/99: To Get a Supreme Court Seat
08/02/99: What are the poor people doing tonight?
07/26/99: Lady Hillary and the press

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