USA Today


Today, when most Americans expected to be contemplating the death of Timothy McVeigh, they will instead be forced to contemplate his continued existence. It will also be useful if they cast a similarly jaundiced eye on the process that produced today’s colossal anti-climax.

McVeigh’s execution was delayed because the FBI failed to provide more than 3,000 documents to his defense attorneys before trial. The evidence may be irrelevant, but it may also contain information about whether McVeigh was part of a broader conspiracy, as his defense attorney believes.

This is troubling twice over. First, it is possible, although not probable, that McVeigh’s lawyers will use the mistake to win a new trial. This would drag out the prosecution of a confessed mass murderer by several more years and millions more dollars. Second, and of deeper significance, the error illustrates that the capital system is far more prone to error than its defenders admit. If the federal government can’t prosecute a slam-dunk case without making potentially prejudicial mistakes, imagine what’s happening in the states, where capital crimes are tried by less-skilled lawyers with fewer resources.

What’s happening is that errors occur at a rate few people realize. Between 270 and 300 people are condemned to die every year in state courts, but many aren’t high-quality convictions. From 1973 to 1995, almost 70% were overturned by appeals courts due to serious flaws, according to a review of 4,600 capital convictions by Columbia University Law School Professor James Liebman. More than 80% of those reversed by state courts resulted in a sentence less than death in retrial; 7% of the suspects were totally exonerated.

The leading cause for reversal in these cases was incompetent counsel. No such risk faced McVeigh, for whom taxpayers supplied a raft of legal talent.

But the second-leading cause was the failure by the prosecuting team to disclose evidence to the defense team. That’s exactly what happened in the McVeigh case. And it happened even though the case features top-ranked investigators, prosecutors and defense attorneys at a cost, by some estimates, that was upward of $80 million.

Concern about errors is causing many states to re-examine the death penalty. Executions are on pace to fall for the third year in a row. Traditionally active states such as California are seeing fewer capital convictions. And after a close legislative debate, Texas, the nation’s leading executioner, is considering a referendum on whether to enact a moratorium. Wyoming recently adopted a sentence of life without parole as an option to death.

That’s only prudent. If McVeigh can’t be cleanly convicted and condemned with all of the resources of the federal government, it’s certain that the states are also making errors and that not all of them are being discovered. A sentence of life without parole obviates the fear of killing an innocent person that can accompany the death penalty.

It’s hard to imagine the feelings of McVeigh’s victims today as they anticipate another three weeks (and maybe many more) before his sentence is carried out. It’s not hard, however, to endorse the delay itself.

The death penalty requires infallibility, which relies on perfect jurisprudence. McVeigh may be as guilty as sin, but rushing an execution isn’t the path to justice. It is the path to greater error.