The ultimate punishment

Scott Turow tried -- and failed -- to build a better death penalty. Now he wants it abolished.

Published October 18, 2003 12:06AM (EDT)

Illinois reinstated the death penalty in 1977. Over the next 22 years, 12 condemned men were put to death, and 13 more were freed on the grounds that they had been wrongly convicted in the first place. Gov. George Ryan, a Republican, saw the numbers, saw press reports about the flaws in the system, saw what he called his state's "shameful record of convicting innocent people and putting them on death row." And in January 2000, he imposed a moratorium on any further executions in Illinois.

Three years later, as he prepared to leave office, Ryan commuted the sentences of every inmate on Illinois' death row. Between the moratorium and the commutation, there was -- as there always is -- a commission. Ryan appointed people -- lawyers, mostly -- to investigate what was wrong with the Illinois justice system and to recommend ways to fix it. Among the commission members was lawyer-turned-novelist Scott Turow.

In his new book, "Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty," Turow recounts his experiences as a federal prosecutor, as a defense attorney and as a member of Ryan's commission. Along the way, he explains how his own views about the death penalty have evolved. He began his legal career opposed to capital punishment; accepted it as society's judgment while working as a prosecutor; began to question it again as a defense attorney; then came to the conclusion, while working on Ryan's commission, that there is "no tangible benefit" to the death penalty.

Turow's brief treatise sets up the various arguments advanced in support of state-imposed executions -- deterrence, closure for victims' families, the cost of long-term imprisonment, etc. -- and knocks each of them down in turn. While he acknowledges that "there will always be cases that cry out" -- even to him -- "for ultimate punishment," Turow says the existence of such cases obscures the more fundamental question: "whether a system of justice can be constructed that reaches only the rare, right cases" where a death sentence is appropriate "without also occasionally condemning the innocent or the undeserving."

For Turow, the answer to that question is -- ultimately -- no.

Salon spoke with Turow by telephone earlier this week.

Young lawyers who go to work as prosecutors sometimes find that the experience changes them -- that it makes them more cynical about human nature and certainly more skeptical about the presumption of innocence that criminal defendants are supposed to enjoy. Did that happen to you?

It's an extraordinary postgraduate education in the human netherworld. I spent most of my time prosecuting lawyers, and I've always said that experience gives you a proctologist's view of the legal profession. I would expand that to say that being a prosecutor gives you a proctologist's view of humanity.

Did the experience change the way you felt about prosecutors?

The worm had begun to turn for me in my fourth or fifth year in the [U.S. Attorney's Office], when I was involved in a case where I wanted the defendant to plead [guilty] very badly. The defense lawyer, who ended up becoming both a client and dear friend of mine in years subsequent, looked up at us and said, "Look, he won't plead guilty. The government doesn't have it right." And my very senior colleague looked at him and said, "Of course the government doesn't have it right. We never have it exactly right. All we have to have right is that he's guilty." And when he said this -- well, I had never said that to myself. And from that moment on, I began to recognize that there certainly was a function for defense lawyers because, as a point of fact, our witnesses were always shading things and prosecutors were shaping testimony. Not that it doesn't go on on the other side. But it was a very imperfect system.

And the imperfect nature of the system is, in large part, what leads you to the doubts you now have about the death penalty.

That's for sure.

But isn't the system just as "imperfect" in other criminal cases, too? Don't your concerns about the imperfect and arbitrary nature of the death penalty apply with equal force to all sorts of criminal prosecutions?

Of course they do. But what is significant about the death penalty, at least in my analysis, is that we have it only for symbolic purposes. There is no argument that there is not a social benefit to imprisoning a criminal because it is clear that if you imprison somebody -- and we're assuming that they're guilty -- you will keep them from committing crimes against the rest of us during the period of time that they're imprisoned. The problem with the death penalty is that there's no incremental benefit to it, or so little incremental benefit to it that it's basically symbolic. And so there's no trade-off that we're making in terms of tangible benefits. We're trading a symbol for innocent lives and extraordinary arbitrariness that really breeds disrespect for the law.

How did you go from being a prosecutor willing -- if called upon -- to advocate for the death penalty to someone who now sees the death penalty as merely "symbolic"?

For me, it was just a somewhat rigorous examination of the purported tangible benefits [of the death penalty]. A) Deterrence. I just don't see the evidence being there; I think most of the evidence runs in the other direction. B) It saves money. No, that's not true. There's a pretty good concurrence among the studies that applying the death penalty, because of the impact of litigation costs, is much higher [than imposing life without possibility of parole]. C) It helps the victims. There has never been any real disciplined study of that. There's anecdotal stuff running all sorts of different directions. But the fact of the matter is that we ignore what the victims want in the vast majority of murder cases, and we only trot them out when we have decided that our own lust for justice is such that the death penalty ought to be imposed. So victims really are a fig leaf on our own judgments about the way the system ought to run.

So the only real justification for the death penalty is the argument -- which is, in my mind, a serious, sober argument -- that says that some forms of human behavior are so execrable, so far beyond the boundaries of what is tolerable or even imaginable, that we have to impose the most severe punishment we are capable of so as not to depreciate either the value of life or the purpose of living together in a society.

And you accept that argument as a basis for imposing the death penalty?

I certainly find it an argument that makes a lot of sense. I mean, when you're talking about John Wayne Gacy, I have to say I understand the argument.

But as with everything else in the law, there's a slippery slope there. We might all agree that John Wayne Gacy fits within a category of incomprehensible horribleness, but how do you draw the outer boundaries? Take the suspects in the Washington, D.C., sniper case. Assuming that they're guilty, do they fit in that category?

I would think that people who issue warnings to an entire metropolitan area that their children aren't safe and commit 13 wanton murders ... yeah, I think they'd fall into that basket. But the problem with the death penalty is that, as soon as it exists for anyone, there's that slippery slope of "what-about-hims." For every victim, the loss is equal. And as soon as public passions get excited, the legislators rush in and create yet another category of death penalty eligibility. So as soon as you say we're going to have it, it ends up expanding beyond whatever narrow limits were initially imposed.

In Illinois, we started with seven eligibility categories. We now have 21. Even though the Legislature has stepped up to the plate in the wake of Gov. Ryan's commutations and passed a very meaningful reform package, which I hope is about to become law, they won't go near the eligibility categories. Each politician I've spoken with has been quick to say that that's the road to disaster, politically.

So, as you point out in your book, we end up with a category like "felony murder," which makes a death penalty crime out of a killing merely because it was committed in the course of some other felony -- say, a liquor-store robbery gone bad. Is there some reason that a "felony murder" should be a death penalty crime when a simple premeditated murder is not?"

No, none. I can't understand it. I literally can't understand it. I've said to good friends who are prosecutors and police officers, "Explain this to me. How can you say that it's worse for a guy to go into a liquor store with a gun in his belt and intend to rob the store and suddenly get scared and shoot the clerk behind the counter than it would be for him to just walk in and shoot the clerk behind the counter? How can you possibly say that the first murder is worse than the second?" I don't get it. I never have been able to get it. It's a remarkable catchall exception. We found that 65 or 70 percent of the Illinois death row cases were there with at least one felony murder count. It's a mess. It's a mess logically, and it becomes the exception that swallows the rule. You can have all kinds of narrowly defined other categories, but then you have felony murder ...

But on some level, the American people seem willing to accept a certain amount of arbitrariness -- and injustice -- in the application of the death penalty. A Gallup Poll conducted earlier this year showed that 74 percent of Americans favor the death penalty, even though 37 percent of Americans believe the death penalty is applied unfairly and 73 percent believe that an innocent person has been executed within the last five years.

To me, the critical question in the polling is this: When you give them the choice of [the death penalty or] life without possibility of parole, the number [of people supporting the death penalty] sinks through the floor.

Right. In that case, the poll numbers break 53-44 in favor of the death penalty over life without possibility of parole. So is it that people just don't believe that life without possibility of parole really exists?

Well, I think people are stuck in the mind-frame of 30 years ago. Nobody wants Willie Horton out there, getting parole and then committing another murder. But that happens almost never today. We lock people up and throw away the key. We absolutely do. It's one reason we're building prisons at such an extraordinary rate.

In "Ultimate Punishment," you conclude that it's impossible to build a system of justice that would impose the death penalty in what you call "the rare, right cases" without also "occasionally condemning the innocent or the undeserving." How do you define, in legal terms, the category of crimes that comprise the "rare, right cases"?

We had a crack at it in Illinois, and we ultimately ended up with five eligibility categories: multiple murders, that is, people who murdered more than one person at one time or over a period of time; murders in institutions; murders intended to foil the justice system, that is, people who were, for instance, trying to avoid 100 years in prison by killing [a witness]; murders of police officers and firefighters; and so-called torture murders.

Now, that's what we settled on. If it were up to me, I wouldn't have included a number of those categories. They were [the product of] a process of compromise and recognizing what political realities were. But it was hysterical. I mean, we said, "OK, well, politically, we've gotta say cops." And one of the wise politicians said, "You can't say cops without saying firefighters." And there you go, you've fallen right off the slope.

It sounds like you would have limited the categories to "torture" murders and multiple murders committed on separate occasions.

Yeah, probably, but my definition was -- well, I couldn't be any more precise than referring to it as a "crime against humanity," or a "crime against humanness." I mean, it was ridiculous. It was hard to define. And the fact that you couldn't define it -- the fact that you had to use something like that obscenity standard of "I know it when I see it" -- that's just one more indication of how impossible this all is.

Clearly, John Wayne Gacy and cannibalistic, child-molesting torture murderers are in that category, and maybe the D.C. snipers are one step removed but possibly still in the category ...

Everybody has got their own pecking order. But we can certainly agree that certain crimes are so despicable that they stand apart from that liquor store holdup.

Would killing a president fit in that category?

You know, the last guy who tried is in a mental hospital, and it hasn't seemed to increase the attempts on the life of the president.

But let's assume for a moment that you have the power to define the category of death penalty crimes, and that you're somehow able to articulate a standard that includes only your "rare, right" cases and excludes all of the others. Could you support the death penalty then?

No. If I thought it would stay narrow and that innocent people wouldn't end up on death row, I could grit my teeth [and accept it]. But I know that's not what would happen. I know that the categories would expand. And I know that the paradox of capital punishment is that the worst cases we can imagine are the ones to which the death penalty is supposed to be applied. And guess what? It's really easy to convict innocent people under those circumstances because the crime itself ends up substituting for real evidence.

You see that notion sometimes in media coverage of high-profile cases -- this idea that if the crime is really, really awful, then the defendant must be guilty. Why does that happen?

Why does it happen? It happens because the jury that represents the community is full of fear and wrath -- fear of allowing a monster to go free, and wrath to get even with him for scaring them so badly.

And the jurors are not going to let this horrible crime go unpunished, and the defendant happens to be the only guy they can punish for it.


So even if you could decide which categories of crimes are eligible for the death penalty, the mistakes inherent in the justice system would still leave you uncomfortable with having the government carry out sentences of death?

The mistakes and the arbitrariness. If I knew that it really was only going to be these people, and that there weren't going to be any errors in determining who they were, that would be one thing. But I have come to recognize that the propensities of the system are exactly the opposite.

The system has to function perfectly in order to send the unequivocal moral message that, for ultimate evil, there's going to be ultimate punishment. That's all we want out of it, and you can't do it. The law doesn't work that well. We've got a set of exacting demands for the death penalty that doesn't exist in the rest of the criminal system.

And if there were some tangible benefit to the death penalty, you could tolerate the mistakes that are inevitable in a capital system. You could tolerate -- although you would want to dramatically minimize -- the number of innocents on death row or the uneven application of the death penalty if, for instance, the deterrence theories were right and we were actually saving lives with the death penalty. You know, we give up innocent lives with childhood inoculations, for example. It's a trade-off. But that's not the case here.

So the only realistic choice left is a life sentence without any possibility of freedom -- unless, of course, the inmate can prove that he was wrongfully convicted in the first place. The life sentence leaves open that possibility, and maybe that's the most compelling reason for selecting it over the death penalty.

Yeah, it does that. It allows the innocent a chance to go free. And certainly, that's the part of it that's most compelling. But also, it avoids the expense and distraction that we have put into the death penalty, death penalty politics and death penalty jurisprudence.

Some conservatives would say that the way to avoid that expense is just to make the death penalty less expensive -- just do away with some of the procedural hurdles that stand between the government and the executioner's chamber.

I understand their argument, but that's extremely unrealistic. The Supreme Court keeps increasing the procedural hurdles in a desire to make the death penalty comport with the requirement of due process. They don't want it to be arbitrarily applied ... We've been trying for more than a quarter of a century to reason the arbitrariness out of the death penalty, and we're never going to do it. But the procedural hurdles get raised higher and higher in the effort to do it, and those conservatives who say, "Do away with all of that," are trying to speed up a process that we know has put a certain percentage of innocent people on death row.

Even when it's moving slowly.

That's right, even when it's working slowly. Having represented one man who was innocent and was in prison for 12 years and was on death row much of that time, I don't think a faster death penalty would have been very much in his interest.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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