The ultimate punishment

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

By Tim Grieve

Oct 17, 2003 | 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?"

Next Page: How do you define the category of crimes that comprise the "rare, right cases"?

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