Who's to die? Who's to say?
WASHINGTON (CNN) -- Timothy McVeigh decided to die -- with some help from the courts. Johnny Penry still hopes to live -- with some help from the courts.
The penultimate chapters in these death row dramas played out this week for the two convicted murderers. For nearly everyone else concerned about the imposition of the death penalty in the United States, these legal steps broaden the moral debate.
For most, McVeigh's case is black and white. One bomb and 168 deaths, coldly calculated and apparently still without remorse.
"I bombed the Murrah Building," McVeigh told the authors of a recent book about the 1995 bombing. He relished it as a "shot heard round the world."
In contrast, many see Penry's case in multiple shades of gray, complicated by his mental retardation and horrific childhood abuse.
"I have never hurt nobody in my whole life," Penry told me in a February interview at the Huntsville, Texas, prison.
But he did, raping and murdering Pamela Moseley Carpenter 22 years ago.
"He knew exactly what he was doing," the victim's niece Ellen Moseley-May said on the steps of the U.S. Supreme Court in March when Penry's appeal was heard.
McVeigh cut off his final appeals process one step short of the Supreme Court after two clear rejections in lower federal courts. His lawyers would have pressed on.
But McVeigh intended his last words to be: "I am the master of my fate."
Penry has never been the master of his own fate. Twice his lawyers have gotten the Supreme Court to consider whether he was fairly treated by the courts that sentenced him to die.
Twice the justices have instructed Texas to reconsider the mitigating circumstances of Penry's mental limitation -- his IQ tests between 51 and 63, mild to moderate retardation.
"I won, I won," Penry told his lawyers when they called after Monday's Supreme Court ruling. The prison grapevine had informed him first. The lawyers had to explain that he'd won another shot at a life sentence, rather than execution, but not a sure shot.
As a nation we are at a point of reassessing capital punishment. Is it a credible deterrent to crime? Is it fairly administered? Is it racially and ethnically biased? Is it cruel and unusual punishment?
The court answered that question in the 1970s--twice. The 1972 decision in Furman v. Georgia said the death penalty did "constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments" of the Constitution. The 1976 decision in Gregg v. Georgia held "the death penalty is not a form of punishment that may never be imposed."
Here is what is happening now:
The justices will consider the scope of the death penalty once more when they take up the case of a mentally retarded North Carolina death row inmate Ernest McCarver in their next term. His case raises the core question of whether executing the mentally retarded is cruel and unusual, unlike Penry's case, which dealt with the clarity of jury instructions in arriving at a sentence.
Federal and state legislatures are working to assure that competent legal counsel is available to those accused of capital crimes. The stories of sleeping lawyers are alarming.
Laws are also being written to require DNA testing where it is relevant. The importance of making DNA testing available has been underscored by the growing number of cases where DNA evidence has led to convictions being overturned. DNA, of course, can be used to confirm as well as to exonerate.
A Justice Department report found that while minorities are involved in a disproportionate number of death penalty cases, the cause is "not racial or ethnic bias." The report is alarming to critics of capital punishment. The issue will draw attention to Juan Raul Garza, the federal death row prisoner scheduled to die a week after McVeigh. Garza claims ethnic bias and has asked President Bush to commute his sentence.
No one wants to execute an innocent person. The tougher question is when -- if ever -- the death penalty is warranted.
Timothy McVeigh's act will not be forgotten after his death. His execution will etch the final name into the ruins of the Murrah Building and the justification -- for some -- of the legitimacy of capital punishment.
"It is an extreme sanction, suitable to the most extreme of crimes," the Supreme Court said in its 1976 decision restoring the death penalty as constitutional.
Johnny Penry's place will be marked only in the law books. If the Supreme Court ultimately decides it is cruel and unusual to execute the mentally retarded, Penry will be a footnote to McCarver. He will not mind.
Penry hoped the courts would "put me in a mental institution for the rest of my life. I don't think that executing me is going to solve anything."
Penry and McVeigh frame the argument for and against capital punishment.
If you think the death penalty is appropriate, Penry might make you think again. If you think it is wrong, McVeigh might make you waver.
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