The ultimate punishment

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.

Right.

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.

• View blog reactions