Molly Ivins June 10

AUSTIN — The case of Timothy McVeigh is a pretty good argument against the death penalty as currently practiced. Please hear me out on this because it's a sound argument.

In my state of Texas, the death penalty is now an assembly-line process: You convict 'em, we fry 'em. And thanks to some recent Supreme Court decisions, as Texas goes, so goes the nation. We are dead-beddin' folks down here so fast and so often, you can't get people to raise an eyebrow over it, no matter what the specifics of a case are. We've already executed 20 people this year — eight in the last two weeks, six more scheduled this month. Last week, we set another new record: two in one day.

I remember the first time we executed a man we knew was innocent — couldn't get anyone excited about that, either. This luckless slob was caught in a remnant of English common law. Two perps set out to commit a felony — to wit, burglary. First perp holds open a window screen; second perp crawls inside, encounters homeowner, panics and shoots innocent citizen. Perp One is still standing outside the window, guilty of burglarious intent and aggravated screen opening. But under the law, Perp One is just as guilty as Perp Two because they conspired to commit a felony. Perp Two rolled over on Perp One to save his own skin — he settled for a little prison sentence for being so helpful to the law — and Perp One, who was never even inside the house, bought the death penalty. He's gone.

Does that compare to what McVeigh did?

Give you another example — a horrible crime. A retarded, mentally disturbed guy who was living across the street from a convent in Amarillo raped and killed an elderly nun. Can't hardly get worse than that. But this sorry citizen barely had the IQ of a Labrador retriever. Did he realize what he had done? We're not even sure he knew his own name.

It was so pathetic that the fellow nuns of the murder victim — her only family — asked that the man not be put to death. The pope asked that this perp not be put to death. But we put him to death anyway.

Does that compare to what McVeigh did?

Want some more? In this state, we fry 'em even if they're not all there, mentally speaking. For years, the state used a famous "expert witness," called Dr. Death, who invariably testified that the perp was of sound mind and fully understood his actions, even if the guy was running around in circles on all fours barking under the impression that he was a dog on the seventh rung of hell.

Does that compare to what McVeigh did?

We are especially apt to fry 'em if a black perp offs a white victim — and if you even blink at that, you're too ignorant to be in this discussion.

But most of all, above all other reasons, we fry 'em because they had bad lawyers.

Yes, the bad-lawyer felony is the leading cause of the death penalty in Texas.

The common misimpression is that in order to draw the death penalty, you have to be guilty as sin of a truly heinous crime. Wrong. You don't have to be accused of a particularly horrible crime to draw the death penalty; you don't even have to be guilty. Since the Supreme Court reinstated the death penalty in 1976, 63 death row inmates have been set free after it was conclusively proved that they were not guilty of the crimes for which they had been sentenced to die. Those guys had some bad lawyers.

No one doubts that the overwhelming majority of those on death row are guilty as charged. But don't ever think they're there as a result of some near-infallible process, with so many safeguards and legal fail-safes that no innocent person could ever be wrongly convicted. The eeriest thing about the death penalty as currently practiced is its random, haphazard nature.

How'd you like to have been one of those 63 innocent ones? Sixty-three out of the 3,153 now on death row around the nation is slightly under 2 percent. Not a bad margin of error if we're talking about cost overruns at the Pentagon; not so good if it's your life at stake.

The other big myth we hear all the time is that folks on death row have years to appeal — that they make these endless appeals that drag through the courts that take forever. That may have been true in years past, but that is badly dated information. Now, if you have been given the death penalty, new federal and state laws make it almost impossible for an appeal to be heard by federal judges. So, no one has any time to find out how many other innocent people might be on death row.

We are long past the silly notion that the death penalty deters anyone (the deterrent theory has been blown to pieces so many times that it hardly seems worth citing the studies), so we are left with the reality that we impose the death penalty as the ultimate punishment. But what is "ultimate" about it in these circumstances? If we want to express our outrage at a Tim McVeigh, shouldn't we be less promiscuous in our use of the death penalty? When we use it all the time, on every Tom, Dick and Harry with a dumb, lazy lawyer, it just doesn't seem like much of a way to punish someone like McVeigh, does it?

***

Molly Ivins is a columnist for the Fort Worth Star-Telegram.

COPYRIGHT 1997 CREATORS SYNDICATE, INC.