Ultimate Punishment: A Lawyer's Reflections on Dealing
With the Death Penalty; Scott Turow; Farrar, Straus & Giroux: 166 pp., $18
Yesterday, late Saturday morning, I had to drive two hours south
to Carlsbad, California for a party - my nephew's son was celebrating his fifth birthday. I was packing toys for
the kid. And what do you do to pass the time while driving carefully and calmly for two hours on the Hollywood Freeway
(the 101) and then the Santa Ana Freeway (the 5), on and on and on? You listen to the radio. And after all the
pop music starts to sound alike, and you find the weekly opera from New York is something German and brutal, and the public
jazz station is having a full day of blues sung by minor imitators of Blind Lemon Jefferson, well, you listen to "talk radio."
I'm not much of a sports guy, and the "health" shows were covering diseases I don't have and no one I know has, and Id heard
the conservative rants about God and country before... so National Public Radio (NPR) it was. I expected the usual Saturday
morning "Food News Hour" - sometimes they interview my friend Louisa in Paris - but I caught a book show, an interview
with Scott Turow.
This is his week. He's promoting his new book about capital
punishment. This means Ultimate Punishment has been reviewed in all the Sunday papers this
week, and he's being interviewed in magazines and on the "serious" talk shows. And here in Los Angeles he will be speaking
at the Central Library's Mark Taper Auditorium the evening of the 16th (630 West 5th Street, Los Angeles, Contact: Reservations
advised, (213) 228-7025)
The interview, as I drove, was compelling, but perhaps it is natural
to mull over ideas about death and punishment when driving the freeways out here. Perhaps as a long-standing ACLU member
and a bit of a pacifist, this hit a nerve, but I recommend looking into the issues Turow is raising. They're important,
at least in my mind.
A bit of background: Turow is known to many of us as a fellow who
writes bestsellers, procedural thrillers set in the world of criminal law. Two you might know are Presumed
Innocent and Reversible Errors. I call these "airplane books" - something
to read on a long flight. But Turow is also a practicing lawyer and former prosecutor who spent most of the nineties
representing inmates on Illinois' death row, and he was invited to serve on the Ryan commission.
Those who follow crime and punishment in America - who doesn't given
Scott Peterson and Kobe Bryant and the Malvo lad and all that? - might recall Governor George Ryan of Illinois. In 1999,
a month after he assumed office, a convicted double murderer named Anthony Porter was released from the state's death row.
It seems Porter was completely innocent. His innocence had finally been conclusively proved. Oops. After
a year, three more waiting for execution on death row had been cleared, bringing the total to thirteen folks, waiting to be
executed, then exonerated, since Illinois reinstated the death penalty in 1977. Oops times thirteen.
Governor Ryan acted on the accumulating evidence something wasn't right. He declared a moratorium on executions in the
state and appointed a commission to study the problem.
Scott Turow was one of the fourteen people Ryan appointed to the
Turow says he was a "death penalty agnostic," but welcomed the chance
to focus on an issue. He had for years been thinking one way then the other about whether capital punishment was a good
thing or should be ended entirely. And this book is Turows attempt to explain how, after two years working on the commission,
going over every aspect of Illinois' death penalty laws, he finally came down solidly against the death penalty.
The basic question? "Should a democratic state ever be
permitted to kill its citizens? If the people are the ultimate source of authority in a democracy, should the government
be allowed to eliminate its citizens?"
But Turow doesnt give a simplistic "no" to the question. For
example, in one interview he says, "If I slap you, what's the appropriate response? Do you slap me back, or do you break
my arm? If someone breaks a contract, they have to pay. So when it comes to murder, we have to ask ourselves if we depreciate
the value of being human by allowing certain offenders to avoid the ultimate punishment."
And Turow does say capital punishment is "consistent with the
Western moral tradition, with the idea that God meant us to slay the evildoer, and I respect the rights of the individual
to hold that view."
So what's the problem? Do God's will. Off the bastard.
It'll feel good.
But Turow says that's exactly the problem, as, "there's
a moment when reason and humanity part company, and that's the moment of execution. It doesn't matter that this is authorized.
It doesn't ameliorate the horror of doing it, the deep intuition that there is something wrong with taking a life on whatever
So it seems wrong? Turow claims this feeling of horror, of
deep intuition, indicates the level at which the death penalty affects people. He says it is equal parts morality and
fear. It's all upsetting because, Turow says, that murder, after all, is the ultimate transgression, an act that,
strikes at the heart of society by threatening the assumption that we can peaceably coexist.
And the problem is nothing is ever clear-cut about any murder.
Sharon Dolovich, who teaches criminal law, prison law and legal
ethics at the UCLA School of Law, points out Turow in the book is honing in on the two faces of the issue:
The first face is one of bland indifference. This is how the system
looks to capital defendants in jurisdictions where prosecutors seek death every chance they get; where court dockets are full
to bursting; where court-appointed lawyers are overburdened, incompetent or otherwise disinclined to put on a strong defense.
When the system looks this way, there's no telling who gets the death penalty. Some defendants - the lucky ones -
plead out for life in prison and live on, however monstrous their crimes. The unlucky end up on death row - even "garden
variety" murderers like Chris Thomas, a former client of Turow's who shot a man during a holdup. Executing a murderer like
Thomas may not seem wrong. He killed someone, after all. But the death penalty, the "ultimate punishment," should be kept
for "the worst of the worst" - murderers whose crimes are so horrific that "the only correct response" is execution.
Certainly Thomas deserved to be punished. But Turow, citing murder cases from the same jurisdiction, argues that to punish
him more harshly than someone who had "killed four persons; another who'd knocked his friend unconscious, then placed him
on the tracks in front of an oncoming train; and a mother who'd fed acid to her baby" undermines the moral order the death
penalty is supposed to preserve. Such apparent randomness is also arguably unconstitutional. When the Supreme Court struck
down the death penalty in 1972, it did so in part because no logic determined who was executed and who wasn't. The court used
words like "wanton" and "freakish" to describe the process. Yet in Turow's experience, whether or not a first-degree murder
is tried as a capital case is as wanton and freakish today as it was then.
If the first face of the system is bland indifference, the second
is raw emotion. This is how the system looks when the crimes are "the worst of the worst." When the system wears this aspect,
innocent people end up sentenced to death. By now, we all know the players in this drama of wrongful conviction: police investigators
who coerce or manipulate suspects into false confessions; jailhouse informants who trade false inculpating testimony for leniency
in their own cases; prosecutors who are so intent on convicting the accused that they dismiss evidence suggesting someone
else is the culprit. And, in the final act, heroic lawyers who never gave up on the truth, and the exonerated death-row inmate
emerging dazed into the sunlight. This is the passion play of our time the play that moved Gov. Ryan to call a halt to executions
in his state. Why, Turow asks, does it keep repeating itself?
Well, something seems broken. Supreme Court Justice Harry
Blackmun wrote in a 1994 dissent to a decision not to review a death penalty case, "From this day forward, I no longer
will tinker with the machinery of death. The basic question - does the system accurately and consistently determine
which defendants 'deserve' to die? - cannot be answered in the affirmative."
And Turow suggests things will always be broken.
Sharon Dolovich sums up why in her discussion of Turow's book in the Los Angeles Times:
The problem is the crimes. They are just too appalling, and we are
too human. Any decent person who gets near these crimes may well be too shocked and outraged to conduct the objective assessment
of the evidence necessary to ensure that the people we sentence to death are the ones who actually committed the crimes.
For Turow, in short, it is the humanity of the players, jurors included, that will finally defeat any attempt to make the
system work properly.
Well, that's cheery. I agree. So now what?
Turow: "I accept the right of the political majority to impose
this punishment and I even accept some of the moral claims. But if I were a justice of the Supreme Court, and I was
asked to decide if it were cruel and unusual, I would probably say it is.
"When everything is said and done, it's the moment that bothers
me, the moment that you pull the switch. If you talk to the people who administer this, it doesn't matter what you tell them
about right and wrong. They all go around sick to their stomachs for days after an execution. And there is something wrong
Turow voted along with the slim majority of the commission.
The recommendation? Illinois should abolish capital punishment.
As Turow points out, on the one hand, murder is a crime so extreme
that it requires the most extreme retribution. On the other, state-sanctioned killing reduces our society to its lowest
common denominator, making all of us complicit in the taking of a life.
On that last point I can say, out here is Los Angeles, "not in my
name" but that doesn't do much good. I'm in the minority on this issue.
And as for those enthusiastic about the death penalty as "a statement
of moral value" to be applied widely and often to say who we are - to clearly show what we just won't tolerate?
Of course the families of the victim(s) want justice, as does society,
and rightly so. But it seems we cannot seem to get the problems with "just retribution" worked out. If you accept
a few wrongful deaths to make a moral statement, well, you aren't making much of a moral statement.
What to do? I don't know. My inclination is with Turow
"Our ancestors... purged their guilt by banishment, not death.
And by so doing, they stopped that endless vicious cycle of murder and revenge."
"'It is the job of thinking people, not to be on the side of
- Albert Camus (1913-60)