28 APRIL 2001, Page 10

HOW KINDNESS IS KILLING THE DEATH PENALTY

As Timothy McVeigh prepares to die, the crusading British lawyer

Clive Stafford Smith explains why he decided not to represent him and

why he believes that the world is turning against capital punishment

New Orleans BACK in 1996, I was trying to stop the state of Georgia from electrocuting Larry Lonchar, a convicted murderer. The prison employees who conduct an execution are volunteers, which means that most of them are sadists. Shortly before Larry was to be strapped into Old Sparky, one of the warders handed him a piece of paper on which was printed a description of what was about to happen: 'When the executioner throws the switch that sends the electric current through the body, the prisoner cringes from torture, his flesh swells and his skin stretches to the point of breaking. He defecates, he urinates, his tongue swells and his eyes pop out. . . . His flesh is burned and smells of cooked meat. When the autopsy is performed the liver is so hot it cannot be touched by human hand.'

That time, we stopped Larry's execution well into the 11th hour — actually. just 32 minutes before the seven o'clock deadline. At night, sometimes, I still see his wild eyes when he handed the crumpled paper to me. Later, the stays were lifted and they went ahead and killed him. As his lawyer, I had to be there. The witnesses didn't see all the horrors, of course, because they covered his face with an appalling leather mask and strapped his mouth so tightly that he could not scream. But I knew what he was going through.

On 16 May Timothy McVeigh will be strapped on to a gurney at Terre Haute penitentiary, Indiana, and killed in an altogether more humane way. Poison will be injected into his arm. Minutes later, barring some medical bungle, he will be dead. His execution will be celebrated by some, and observed in studied silence by the antideath-penalty movement. Timothy McVeigh is not our poster child.

We all have our bigotries, and I hate capital punishment. I arrived in the United States from England 23 years ago and have spent the past 17 years representing people facing execution. I work for a charity in New Orleans that has an amorphous name — the Louisiana Crisis Assistance Center — because it means that nobody knows what we do, and that stops the bomb threats from frustrated advocates of the death penalty.

Shortly after McVeigh blew up 168 people in the Oklahoma City federal building on 19 October, 1995, I was asked whether I would help represent him. I declined, not because I thought he should die but because there would be plenty of money for his defence ($10 million, as it turned out). This, combined with the notoriety of the case, was bound to attract competent lawyers to his side. He had no need of me.

A century ago capital punishment was routine everywhere. Today there are 108 countries that don't execute, and 87 that do. The death penalty is dying, suffocated in the effort to make it kinder, gentler. Not that the number of countries retaining the death penalty gives the full picture. More people live in countries where criminals are executed than in countries where they are not. Between them, China, India, Indonesia, Japan, Nigeria, Pakistan, Russia and the USA — eight countries that have retained the death penalty — account for 3.4 billion of the world's 6 billion people. But last year almost 90 per cent of all executions took place in China, Iran, Saudi Arabia and the USA. Japan had just three; Russia none.

No matter what the numbers, the real story is a human one. I always ask jurors the ultimate question of capital punishment, when they must decide whether my client should die: 'Why do we need to kill Tim McVeigh?' If a killing is unnecessary, we should not do it. There are, of course, execution exponents who believe that the noose, or at least the needle, will reign again. When Louisiana introduced the death penalty for statutory rape in 1996, the state court suggested that the new law was 'the beginning of a trend' that other states might follow, an evolution in the 'standards of decency' of our society. The court was wrong. Other states have not followed Louisiana's decent approach to rape. The decline in the death penalty seems inexorable.

Among the serious advocates of capital punishment, the United States finds itself in unfamiliar company, divorced from its Western European allies. On closer inspection, the USA is already three-quarters of the way along the road to abolition. The two primary justifications for the death penalty are deterrence and retribution, and neither now carries much conviction. Of the two, retribution has ancient credentials, but we swallow hard when we read that the Iranians actually sentenced Gholamhossein Aryabakhshahye to have an eye removed last year for blinding Mohammad Ali Qorbani in an argument. The lex talionis has a questionable pedigree for a modern justice system.

That is why governments generally fall back on the deterrence argument — that capital punishment really is a 'cure' for crime. The Chinese and Saudis carry out their executions in public for a reason: deterrence is not served by discreet executions, conducted in the dead of night. For deterrence to work, the punishment has to shock, (In this respect, the old British sport of public hanging failed, since watching someone dangle at a distance failed to evoke sufficient horror. British officials were disconcerted by the picnic atmosphere that often prevailed at a public execution, and the large number of pick-pockets working the crowd at the hanging of a colleague.) In the West we are repelled by close-up pictures of a Chinese woman being marched away to be shot in the back of the head; still more by the image of a scimitar being swung in a Saudi square. Our own, subjective revulsion spells death for the death penalty in the West. In America, squeamishness has already prompted a series of reforms that, ironically, deprive capital punishment of any justification.

Executions are not pleasant, and the more 'humane' they become, the more we can see their essential inhumanity. Federal squeamishness, born no doubt of guilt and uncertainty, carefully censors what the official witnesses will see when McVeigh is executed. The black curtain will not rise on the condemned man until the needle has already been inserted (in case they have to probe for an hour to find a vein, as occurred recently in South Carolina). The viewer will not see McVeigh writhing on the gurney as he dies because a sedative and a paralysing agent will be injected before the poison.

With death as sanitised as this, why should executions not be broadcast? It is partly because politicians have lost the will to kill, even kindly; partly because they fear that televising a modern execution would further diminish the deterrent effect. That's not to say that there are not plenty of media moguls who would gladly sponsor Execution TeleVision, With 3,726 people on death row USA, ETV would have no shortage of footage: an execution a day for ten years. But because the ritual has been neutered, stripped of the pornography of violence, the ratings would soon slip — Hollywood does it so much better.

In the more advanced nations at least, squeamishness means that executions are secretive affairs — except in the case of notorious killers such as McVeigh — carried out in the dead of the night. In recent years, the Americans have routinely opted for midnight. The Japanese go a step further. Three people were executed in Japan last year, all on 30 November. All of them had been on death row for more than ten years, and their appeals had been turned down more than five years before. Without warning, the condemned men were simply taken from their cells and executed in secrecy. Such furtive punishment destroys even the pretence of deterrence: future killers can't be expected to fear something they are not permitted to know about, or can only guess at.

Squeamishness also accounts for the limits placed on the number of executions in America. China executed more than a thousand people last year; America just 87. Yet the United States has a far higher murder rate than China: 18,000 a year. To kill every killer would require 50 executions a day, which is too much blood for society to stomach. So the Americans purport to select only the worst crimes. However, the lower the numbers, the weaker the pretext of deterrence. One cannot expect a crack addict to pause in mid-robbery to ponder whether he may have a one-in-200 chance of spending a decade on death row. On a school trip. Adam Pinkton went to the Mis

sissippi State penitentiary to see the gas chamber. Three years later, high on drugs, Adam shot Louis Coats. Adam could not spell deterrence, let alone contemplate its consequences. He was sentenced to death.

Squeamishness is evident, too, when we start worrying about the danger of executing the innocent. If we hook 'em, book 'em and cook 'em, we might instil fear, but we will make mistakes. A kinder, gentler society insists that we get the right guy. Here, due process ultimately sounds the deathknell of deterrence. Three years ago, I was suing the state of Mississippi over whether Willie Russell should have to represent himself — as required by state law — in his appeals, a lonely task for a mentally handicapped man locked in his cell all day, not even allowed a pencil. Willie won. Now he has a lawyer, and a lengthy appeal detailing why he should have been found not guilty is due to be filed on the day McVeigh will die.

Due process means that we have to take care when we punish people. In part, that means slowing the rush to judgment. In 1987 I tried to delay Edward Earl Johnson's death and I failed; an innocent man was executed. In Japan the average time between arrest and execution is now ten years; in the USA, it is eight. Delay does not decrease the number of venal police, incompetent defence lawyers and overzealous prosecutors. However, delay, combined with increased resources, does allow the condemned to expose erroneous convictions. It is no coincidence that people are now being exonerated from death row, USA, in increasing numbers; 95 since 1976.

In the future, the focus will shift from how to get the innocent out of prison to the more significant question: how they got into prison in the first place. Due process poses some harsh questions for advocates of executions. Ultimately, as capital punishment seeks to become kinder, politicians are left with a punishment in search of a justification. For a while, it will persist, fuelled by the desire among politicians to find someone for us to despise. Those on death row are handy scapegoats for many of society's ills. Yet the ills persist. A recent poll of American police chiefs found that only one in 100 felt that the death penalty had a serious impact on crime.

There is no doubt that, in the USA, public opinion is turning against the death penalty. Support for capital punishment climbed to 80 per cent in 1994 (over 90 per cent in some Southern states), but we are now back to 66 per cent. No tide in the affairs of humankind will sweep away the death penalty in time for McVeigh, but Bud Welch will not be watching the execution at Terre Haute next month. Bud's only child, Julie, died in the explosion in Oklahoma City. There was a time in the wake of the bombing when he wanted to watch McVeigh die — he calls it his 'insanity period'. He changed his mind when he remembered riding across country with his daughter, listening to a newscast about yet another execution. Julie's response was. 'Dad, all they're doing is teaching hate to their children.'

Bud is an inspiring figure. He is credited with having persuaded a fifth of the families of McVeigh's victims to oppose the execution. Bud and the organisation he now represents — Murder Victims' Families for Reconciliation — reflect the reality of a kinder reason to reject capital punishment than mere squeamishness: mercy. Their mercy will deal the death penalty its final blow. When the history books record 16 May 2001, McVeigh will probably be a footnote; the hero will be Bud.