Balancing the scales of justice

Not too long ago, American public opinion was overwhelmingly in favor of retaining the death penalty, and the opposition looked like dreamers espousing a lost cause. Then came George Ryan. In 1999, scarcely a month after Ryan became governor of Illinois, a convicted double murderer named Anthony Porter was released from the state’s death row, his innocence conclusively proved. After a year, three more had joined him, bringing the total to 13 exonerated since Illinois reinstated the death penalty in 1977. Finally, Gov. Ryan had had enough. He declared a moratorium on executions in the state and appointed a commission to study the problem. Ryan’s moratorium breathed new life into the abolitionist movement. What some observers saw as a temporary obstacle to future executions, others viewed optimistically as the thin edge of the wedge. Sure that the system could not withstand close scrutiny, foes of capital punishment hailed Ryan’s gutsy political move as the first step on the path to abolition. And to judge from Scott Turow’s new book on the subject, the abolitionists may well turn out to be right.

Author of such bestsellers as “Presumed Innocent” and “Reversible Errors,” Turow is also a practicing lawyer and former prosecutor who spent most of the 1990s representing inmates on Illinois’ death row, and he was invited to serve on Ryan’s commission. A self-proclaimed “death penalty agnostic,” he welcomed the chance to focus on an issue that for years had kept him veering between the two poles of “for” and “against.” “Ultimate Punishment” is the story of how, after two years spent with the commission scrutinizing every aspect of Illinois’ death penalty, he finally came down solidly against. It traces how he used to see the issue and what he learned while serving on the commission that decided him against capital punishment. Turow’s brief narrative illuminates two faces of the death penalty in the United States. Each, as he suggests, should give us serious pause.

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?

The answer he gives is perhaps the greatest insight in the book. It is the answer of a novelist focused on emotions, on motivations, on human frailty. It 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. This explanation, of course, won’t always wash: Some police, some prosecutors, really are as cavalier as they seem about the possibility that they got the wrong guy. But surely there is something to what Turow suggests. Think, for example, of the kidnapping, rape and murder of 10-year-old Jeanine Nicarico, the crime for which Alex Hernandez, Turow’s client on appeal, was wrongfully convicted and sentenced to death. You can fill in the details yourself. Now imagine acting as investigator or prosecutor in this case, living with it day after day, having painstakingly to reconstruct every detail of the crime as the victim experienced it. Or imagine being in the jury box, having to pay close attention as the prosecutor rolls out the brutalities inch by inch. At such proximity to the awful details, is it really so hard to imagine being so revolted by the crime, so desperate to convict the culprit, that high emotions -- shock, horror, outrage -- would swamp your good sense?

This book is not without flaws. It is more impressionistic than analytical, which can blur the track of the argument; one wishes Turow had taken as much care to trace the thread of his logic as he does to weave the intricate plots of his novels. But it is readable and engaging, and, more important, it speaks to an audience not always considered by death penalty opponents: people, like Turow himself, for whom capital punishment has a strong visceral appeal. Turow does not minimize either the nature of the crimes or the deep anger they evoke in the people forced to reckon with them. He gets it. He will thus be read with sympathy by readers open to arguments against capital punishment but alienated by what they perceive, rightly or wrongly, as the indifference of abolitionists to the suffering of the victims.