USA Today

EDITORIAL

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.