McVeigh to Macbeth

The difference between revenge, retribution, and right.

Cathy Young from the July 2001 issue

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Timothy Lynch, director of the Cato Institute’s Criminal Justice Project, does not see moral arguments for the death penalty as a slippery slope. In his view, "We can distinguish between a total state-imposed value system on the one hand, and passing moral judgment on violations of rights."

But while Lynch does not reject capital punishment on ethical or constitutional grounds, he says he has come to oppose it on practical ones. "To support the death penalty requires placing your trust in state actors in our criminal justice system: police, prosecutors and the courts," says Lynch. "That trust has been betrayed too many times. There have been so many mistakes and actual misconduct, it just does not warrant our support for something like the death penalty, where the results are irreversible."

Lynch echoes a view that surveys suggest is increasingly common. In a Washington Post-ABC News poll conducted in April, 63 percent of respondents -- down from 77 percent just five years ago -- theoretically favored the death penalty for murderers. But 68 percent said they were troubled by the possibility of innocent people being put to death, and 63 percent thought the death penalty was unfair because of its uneven application from state to state and county to county (and, one might add, from defendant to defendant, including co-defendants in the same case). More than half supported a temporary halt to executions until issues of fairness and wrongful convictions are sorted out.

The marked drop in support for the death penalty is undoubtedly related to the publicity surrounding the cases of people who have been released after years of imprisonment, sometimes on death row, when their convictions were overturned due to DNA tests or other evidence. A widely covered 1998 conference at Northwestern University School of Law in Chicago featured 28 exonerated former death row inmates; Northwestern law professor Lawrence C. Marshall, who organized the conference, told the media that there had been a total of 75 such cases since the Supreme Court reinstated capital punishment in 1976.

Death penalty proponents such as University of Utah law professor Paul Cassell suggest that the media attention to wrongful convictions is part of a well-orchestrated anti-capital punishment campaign. But even if that is true, it doesn’t make these cases less troubling. Nor is it much of a consolation to argue that, since none of these innocents were executed, "the system worked." Others may not be so lucky, particularly given the push to streamline the appeals process.

Unless there is actual evidence that the death penalty saves the lives of potential victims, the argument that one innocent person executed is one too many seems quite compelling. At the very least, such concerns justify calls for a moratorium on executions. Illinois has imposed such a moratorium, and 19 other states are considering similar action.

It would be possible not only to find common ground, but even to break new ground in the debate about capital punishment if supporters were more willing to confront the danger of wrongful execution, and opponents were more willing to recognize the legitimacy of retribution -- or, as Pilon puts it, of "righting wrongs" -- as an element of justice. Execution, after all, is not the only way to exact retribution.

Perhaps, pace Walter Berns, we can even imagine the play in which Macbeth does not die. In the final scene, when Macbeth realizes that Macduff is the man destined by the witches’ prophecy to take him down, he refuses to fight. "Then yield thee, coward," says Macduff, "and live to be the show and gaze o’ the time;/We’ll have thee, as our rarer monsters are,/Painted upon a pole, and underwrit,/Here may you see the tyrant."

Faced with this prospect, Macbeth -- like McVeigh -- chooses to die. It’s a more dignified "closure" for him, but not necessarily for the rest of us.