The death penalty: A novelist gets real

Capital punishment has long been a litmus test in this culture, a standard by which politicians define their commitment to law and order even as death penalty opponents frame the matter in terms of moral absolutes.

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.

“Should a democratic state ever be permitted to kill its citizens?” the novelist and attorney Scott Turow wonders in his new “Ultimate Punishment: A Lawyer’s Reflections on Dealing With the Death Penalty” (Farrar, Straus & Giroux). “If the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens ...?”

The issue, Turow suggests, has to do with what he calls “moral proportion” -- or, as he puts it by phone from his Chicago office: “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.”

“Ultimate Punishment” is a very different book from the bestselling legal thrillers such as “Presumed Innocent,” “The Burden of Proof” and “Reversible Errors” for which Turow is known.

It’s more of a brief, a legal argument, which seeks to reckon with “the extraordinary complexities presented by the question of capital punishment” by addressing the matter in pragmatic terms.

A slender volume that takes a measured and surprisingly accessible approach to its subject, “Ultimate Punishment” has its roots in Turow’s work with the Illinois Governor’s Commission on Capital Punishment, established in March 2000 by then-Gov. George Ryan, who, before leaving office early this year, commuted the death sentences of all 167 inmates on Illinois’ death row. By his own admission, Turow was an unlikely member of the panel, which was co-chaired by former Illinois Sen. Paul Simon and included several prosecutors and defense attorneys.

For Turow, a lawyer whose death penalty experience was limited to two cases on which he assisted with appeals, the commission offered a chance to confront his ambivalence over the death penalty, his inability to resolve what he believed. A self-described “death penalty agnostic” -- “every time I ask myself what I think,” he admits, “I get a different answer” -- Turow sees capital punishment as “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.”

Still, he says, “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 terms.”

This notion of horror, of deep intuition, indicates the level at which the death penalty affects people. It is equal parts morality and fear. Murder, after all, is the ultimate transgression, an act that, Turow insists, strikes at the heart of society by threatening the assumption that we can peaceably coexist.

Yet not all murders are created equal -- in either Turow’s view or that of the law. There is a difference, say, between a serial killer and someone who kills a store clerk in a botched holdup; as always with the law, it’s a matter of degree. That’s why, when the death penalty reemerged in this country in the mid- 1970s, it was reserved for certain kinds of murders: mass murder or murder/torture, in which the victim suffers before death.

Throughout “Ultimate Punishment,” Turow uses the example of John Wayne Gacy, the Chicago-area contractor who in the late 1970s raped and killed at least 33 young men, and in conversation, he also cites Hernando Williams, who kidnapped a University of Chicago student and raped her repeatedly over a period of days, keeping her in the trunk of his car until, finally, he killed her.

“You can’t dismiss that as anger or panic or intoxication,” Turow declares flatly. “This is a pattern of depraved conduct, the worst of the worst. I don’t want to say it’s a crime against humanity, because that phrase has other connotations. But it is a crime against humanness.”

Turow’s point is that if ever there were a murder that cried out for the death penalty, it would be a case like this -- a heinous, vicious act. Yet even here, he suggests, there’s a big difference between the abstract concept of retribution and the physical reality of ending someone’s life.

“The problem with executions,” Turow says, “is that they take place years after a murder and, in a very real way, the murderer has already been subdued. To administer this punishment now, it’s a different moment, and I’m not sure how to reconcile that.”

Deterrence and revenge

In the meantime, as voters focus more on law-and-order issues, politicians increase the number and types of murders that are potentially capital crimes. “In Illinois,” Turow writes, “when our death penalty statute was passed in 1977, it listed seven factual circumstances under which a murderer would be eligible for capital punishment.... Today there are 21 ways to qualify for capital punishment in Illinois. Basically, whenever public anxieties have mounted ... the Illinois legislature, eager to respond to the electorate’s safety concerns, has added to the list.”

Although Turow believes that “there is something not right, something that doesn’t get it, about giving a man like Gacy life” in prison, he methodically catalogs all the wild cards, the inequities of the capital system -- from the influence of race on sentencing (in Illinois, “killing a white victim made a murderer 3 1/2 times more likely to be punished with a death sentence than if he’d killed someone black”) to the failure of the death penalty as a deterrent.

“Look,” he says. “The idea of deterrence implies that a killer has some sense of the future, and that’s just not the case. Most people on death row can’t think far enough into the future to figure out what they’re doing next week. If they could, they would have finished high school. It’s nonsense to think that they’re deterrable in any way.”

Equally problematic is the role emotion plays in death penalty cases, from the desire for revenge that motivates so many victims’ families to the unwillingness of jurors to show mercy to the perpetrator of a monstrous act. That, Turow notes, is only natural, but it makes it difficult for a death penalty investigation to explore the nuances of each case, let alone for police or prosecutors to admit they are wrong.

“Under enormous pressure to solve these cases,” Turow writes, “police often become prisoners of their own initial hunches. A homicide investigation is not an academic inquiry allowing for evenhanded consideration of every hypothesis. Instead, it’s conducted in an atmosphere where primitive fears about unknown, dangerous strangers imperil our sense of an orderly world. There is a strong emotional momentum to adopt an explanation. Cops often feel impelled to take the best lead and run with it.”

Treating offenders equally

Turow’s own initiation into capital jurisprudence involved just such a situation when in 1991 he took on the appeal of Alejandro Hernandez, a man convicted of the rape and murder of a 10-year-old girl -- a crime, it was proven in 1995, he did not commit. It was that case, along with 12 other death row exonerations, that led Gov. Ryan to declare a moratorium on executions in 2000 and to empower the commission of which Turow was a part.

In the end, Turow argues, all this suggests that the death penalty cannot be fairly enacted, if only for utilitarian concerns. How, he wonders, are we to set a standard when capital punishment by its nature stirs up extra-legal issues, when the same crime that provokes a death sentence in one case might yield life in prison in another, or in many instances, even less?

As then-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” -- a perspective Turow takes to heart.

“Emotionally,” Turow says of his experience on the commission, “there were several moments of real impact. One was when I recognized how unique the loss was for a murder victim’s family, the fact that, really, they have no sense of closure. And a second came when I stood in the death chamber and realized how cruel and savage it would be to take someone’s life.”

It’s for this reason that, along with a slim majority of the commission, he voted to recommend that Illinois abolish capital punishment, although, as he points out, the issue could be moot. Since the moratorium is indefinite, he explains, “we may be looking at de facto abolition of the death penalty. I suspect we’re headed toward a situation like Pennsylvania, where they fill death row and don’t execute.”

As for the ethical issues, Turow acknowledges they’re more difficult to resolve.

“I accept the right of the political majority to impose this punishment,” he says, “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 with that.”

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Scott Turow book discussion

When: Thursday, 7 p.m.

Where: Central Library’s Mark Taper Auditorium, 630 W. 5th St., L.A.

Contact: Reservations advised, (213) 228-7025