Questioning Capital Punishment

Law, Policy, and Practice

James R. Acker

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780415639446
• eBook ISBN: 9781317689317
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

The death penalty has inspired controversy for centuries. Raising questions regarding capital punishment rather than answering them, Questioning Capital Punishment offers the footing needed to allow for more informed consideration and analysis of these controversies. Acker edits judicial decisions that have addressed constitutional challenges to capital punishment and its administration in the United States and uses complementary materials to offer historical, empirical, and normative perspectives about death penalty policies and practices. This book is ideal for upper-level undergraduate and graduate classes in criminal justice.

1 Retribution (Just Deserts)

DOI: 10.4324/9781315776057-1

The Death Penalty as Retributive Justice: A Case in Point?

United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998), cert. den., 526 U.S. 1007 (1999)

Defendant-appellant Timothy J. McVeigh (“McVeigh”) was tried, convicted, and sentenced to death on eleven counts stemming from the bombing of the Alfred P. Murrah Federal Building (“Murrah Building”) in Oklahoma City, Oklahoma, that resulted in the deaths of 168 people….

Background

At 9:02 in the morning of April 19, 1995, a massive explosion tore apart the Murrah Building in Oklahoma City, Oklahoma, killing a total of 168 people and injuring hundreds more. On August 10, 1995, a federal grand jury returned an eleven-count indictment against McVeigh and Terry Lynn Nichols (“Nichols”) charging: one count of conspiracy to use a weapon of mass destruction…; one count of use of a weapon of mass destruction…; one count of destruction by explosives…; and eight counts of first-degree murder….

…The destruction of the Murrah Building killed 163 people in the building and five people outside. Fifteen children in the Murrah Building day care center, visible from the front of the building, and four children visiting the building were included among the victims. Eight federal law enforcement officials also lost their lives. The explosion, felt and heard six miles away, tore a gaping hole into the front of the Murrah Building and covered the streets with glass, debris, rocks, and chunks of concrete. Emergency workers who reported to the scene made heroic efforts to rescue people still trapped in the building.

The Murrah Building was destroyed by a 3,000–6,000 pound bomb comprised of an ammonium nitrate-based explosive carried inside a rented Ryder truck. In the fall of 1994, McVeigh and Nichols sought, bought, and stole all the materials needed to construct the bomb…. Using various aliases, McVeigh and Nichols rented a number of storage lockers in Kansas where they stored the bomb components. In order to fund their conspiracy, McVeigh and Nichols robbed a gun dealer in Arkansas in November of 1994.

In a letter to Michael and Lori Fortier written around September of 1994, McVeigh disclosed that he and Terry Nichols had decided to take some type of positive offensive action against the federal government in response to the government’s siege of the Branch Davidians in Waco, Texas, in 1993. On a subsequent visit to their home, McVeigh told the Fortiers that he planned to blow up a federal building. McVeigh later informed the Fortiers that he wanted to cause a general uprising in America and that the bombing would occur on the anniversary of the end of the Waco siege. McVeigh rationalized the inevitable loss of life by concluding that anyone who worked in the federal building was guilty by association with those responsible for Waco.

McVeigh stated that he had figured out how to make a truck into a bomb using fifty-five-gallon drums filled with ammonium nitrate combined with explosives stolen from the quarry. McVeigh demonstrated the shaped charge he intended to use for the bomb by arranging soup cans on the floor in the same triangle shape in which he was going to place fifty-five-gallon barrels filled with ammonium nitrate combined with nitromethane in the truck. McVeigh also diagramed the truck, barrels, and fusing system on a piece of paper, and stated that he intended to use a Ryder truck. McVeigh told the Fortiers that he chose the Murrah Building as the target because he believed that (1) the orders for the attack at Waco emanated from the building, (2) the building housed people involved in the Waco raid, and (3) the building’s U-shape and glass front made it an easy target….

Also, towards the end of 1994, McVeigh typed a number of letters discussing the justified use of violence against federal agents as retaliation for the events in Waco. McVeigh told his sister and one of his friends that he had moved from the propaganda stage to the action stage in his dispute with the federal government. McVeigh then warned his sister that “something big” was going to happen in April, and asked her to extend her April 1995 Florida vacation. He also instructed her not to write to him any more lest she incriminate herself. The manner in which the bombing was carried out closely tracked several books bought by McVeigh, which he often encouraged his friends to read, describing how to make a powerful bomb mixing ammonium nitrate with nitromethane and romanticizing self-declared patriots who blow up federal buildings. McVeigh was familiar with explosives and had detonated a pipe bomb prior to the attack on the Murrah Building.

From April 14 to 18, 1995, McVeigh stayed at the Dreamland Motel located in Junction City, Kansas. On April 14, 1995, McVeigh purchased a 1977 yellow Mercury Marquis from Junction City Firestone in Junction City, Kansas. While waiting to take possession of the car from the dealer, McVeigh made a phone call using the Bridges calling card to Elliott’s Body Shop (“Elliott’s”) in Junction City, Kansas, seeking a twenty-foot Ryder truck for a one-way rental to Omaha. McVeigh also called Nichols.

During the search of the blast site, the FBI located the rear axle of the Ryder truck used to carry the bomb. The vehicle identification number from the axle matched that of the Ryder truck rented to McVeigh by Elliott’s on April 15, 1995, and picked up by McVeigh two days prior to the blast. McVeigh rented the truck under the name “Robert King” using a phony South Dakota drivers license that Lori Fortier had helped McVeigh create.

McVeigh drove to Oklahoma City in the rented Ryder truck, which he had made into a bomb, parking the vehicle in front of the Murrah Building and running to the yellow Mercury that he and Nichols had stashed as a getaway car in a nearby alley a couple of days before the bombing. A Ford key fitting the Ryder truck was found in an alley near where McVeigh had told Michael Fortier that the getaway car would be parked. McVeigh hand-printed a sign inside the yellow Mercury, “Not Abandoned; Please do not tow; will move by April 23 (Needs Battery & Cable).” McVeigh deliberately parked the car so that a building would stand between the car and the blast, shielding McVeigh from the explosion. The bomb then exploded.

Just 77 minutes after the blast, Oklahoma State Trooper Charles Hanger (“Hanger”) stopped the yellow Mercury driven by McVeigh because the car had no license tags. The stop occurred between mile markers 202 and 203 on Interstate 35, just before the exit for Billings, Oklahoma, precisely 77.9 miles north of the Murrah Building. Before he was stopped by Hanger, McVeigh was headed northbound away from Oklahoma City towards Kansas. A person driving the posted speed limit would have reached the point of the stop 75 minutes after leaving the Murrah Building. If McVeigh had left the Murrah Building right after the bombing, he would have arrived at the Billings exit around 10:17 a.m., the approximate time of the stop.

Hanger arrested McVeigh upon discovering that he was carrying a concealed, loaded gun. Hanger transported McVeigh to Noble County Jail in Perry, Oklahoma, where McVeigh was booked and incarcerated for unlawfully carrying a weapon and transporting a loaded firearm. Noble County authorities took custody of McVeigh’s clothing and property, including earplugs, and issued him prison garb. Two days later, on April 21, 1995, the federal government filed a Complaint against McVeigh for unlawful destruction by explosives. Oklahoma then transferred McVeigh to federal custody on the federal bombing charges. An FBI test performed later found that McVeigh’s clothing and the earplugs contained explosives residue, including PETN, EGDN, and nitroglycerine—chemicals associated with the materials used in the construction of the bomb.

A subsequent inventory search of the yellow Mercury uncovered a sealed envelope containing documents arguing that the federal government had commenced open warfare on the liberty of the American people and justifying the killing of government officials in the defense of liberty. Finally, three days after the arrest, Hanger found a Paulsen’s Military Supply business card on the floor of his cruiser bearing McVeigh’s fingerprints. McVeigh had written on the back of the card, “TNT @ $5/stick Need more” and “Call After 01, May, See if I can get some more.”

…On June 2, 1997, after four days of deliberations, the jury returned guilty verdicts on all eleven counts charged in the Indictment. The penalty phase of trial commenced on June 4, 1997, and concluded with summations and jury instructions on June 12, 1997. The jury deliberated for two days before returning special findings recommending that McVeigh be sentenced to death. After denying McVeigh’s motion for a new trial, the district court accepted the jury recommendation on August 14, 1997, sentencing McVeigh to death on all eleven counts.

Timothy McVeigh was executed by lethal injection in the Federal Correctional Institute in Terre Haute, Indiana, on June 11, 2001. Ten survivors of the blast and family members of victims killed in the explosion of the Alfred P. Murrah Federal Building witnessed his execution in person, and 232 survivors and victims’ relatives viewed it from Oklahoma City via a closed-circuit broadcast. McVeigh offered no final words from the execution chamber. He had previously arranged to have written copies of William Ernest Henley’s poem “Invictus” distributed to media representatives.¹ The verses suggest no hint of remorse.

Out of the night that covers me,

Black as the Pit from pole to pole,

I thank whatever gods may be

For my unconquerable soul.

In the fell clutch of circumstance

I have not winced nor cried aloud.

Under the bludgeonings of chance

My head is bloody, but unbowed.

Beyond this place of wrath and tears

Looms but the Horror of the shade,

And yet the menace of the years

Finds, and shall find, me unafraid.

It matters not how strait the gate,

How charged with punishments the scroll.

I am the master of my fate:

I am the captain of my soul.

Is retribution, or just deserts, a legitimate objective of punishment? Does the death penalty represent just deserts for Timothy McVeigh? Would a lesser sanction, such as life imprisonment without the possibility of parole, be adequate to fulfill the retributive function of punishment in response to his crimes? How should the sentiments of the survivors of the explosion and the family members of those slain figure in answering these questions?

Retribution and Capital Punishment

Retributive Justice and the Principle of Proportionality

Some objectives of punishment, such as deterrence and incapacitation, are primarily instrumental or utilitarian in nature. They aim to modify or regulate future behavior. Not so retribution. Retributive justice presumes that offenders deserve to be punished for their blameworthy acts and that no additional justification is needed. Punishment is a just response to criminal conduct, imposed on offenders for violating rules of law that others willingly abide by as a condition of ordered social living. Retribution is normative rather than instrumental in character, and it is backward-looking. It focuses on the harm caused and the offender’s culpable mental state at the time the crime was committed. In this context, retribution is synonymous with just deserts.²

Implicit within the concept of retributive justice is the principle of proportionality: that the amount or severity of punishment should have some fair correspondence to the seriousness of the crime. Although its true meaning is much debated, particularly whether it is a limiting principle or instead an affirmative prescription, the biblical passage, “[T]hou shalt give life for life, eye for eye, tooth for tooth…,”³ is frequently cited in support of the proportionality precept. Justice Lewis Powell elaborated on the constitutional dimension of proportionate punishment in a case in which a thrice-convicted property offender, whose crimes involved roughly $230 in total economic value, was sentenced to life imprisonment under a Texas habitual felon statute.

The scope of the [Eighth Amendment’s] Cruel and Unusual Punishments Clause extends not only to barbarous methods of punishment, but also to punishments that are grossly disproportionate. Disproportionality analysis measures the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender. The inquiry focuses on whether a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal. A statute that levied a mandatory life sentence for overtime parking might well deter vehicular lawlessness, but it would offend our felt sense of justice.⁴

In theory, the offender’s punishment could precisely mirror the offense. In Iran, for example, a woman blinded by a spurned suitor who threw acid in her eyes recently was afforded the prerogative, pursuant to Sharia law and the Islamic Penal Code, of...

Table of contents

• Cover Page
• Half Title Page
• Series
• Frontmatter
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Acknowledgements
• I The Death Penalty's Justifications Pro and Con
• 1. Retribution (Just Deserts)
• 2. Deterrence
• 3. Incapacitation, Cost, and Consideration for Victims
• II Deciding Who Dies Law and Practice
• 4. Capital Punishment for Murder Sentencing Criteria and Procedures
• 5. Proportionality Offenses and Offenders
• 6. The New Death-Penalty Laws in Application Race Discrimination and Arbitrariness
• 7. Defense Attorneys and Capital Jurors
• III Post-Conviction
• 8. Capital Errors Procedural Issues and Actual Innocence
• 9. The Final Stages Death Row, Clemency, and Execution
• Bibliography
• Index