Scott Turow suspects the death penalty will be abolished in this country, eventually. But the Chicago attorney and best-selling author concludes political consensus isn’t likely to lead us to abolition.
“I expect Americans — and their politicians — to remain in conflict, provoked by individual cases and reluctant to focus on the actual output of the system as a whole,” he writes in his recently released collection of essays on the subject. “Their hesitation to fix what is fixable in our capital schemes will force the ultimate judgments into the courts.”
Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty makes timely reading. It went to the printer after the General Assembly approved extensive reforms in Illinois’ capital punishment system last May, and before Gov. Rod Blagojevich revised those reforms last summer. And this month, when lawmakers return for their fall session, that hesitation —and that conflict — in fixing what is fixable is expected to be visible again.
The governor said he agreed with all but one of the provisions in the measure designed to reduce chances Illinois will execute innocent people. He didn’t agree on lowering the threshold for prosecuting police officers who willfully lie on the stand.
But if the legislature fails to approve or to reject the governor’s changes, all of the proposed reforms will land in the dustbin. So as they rejoin the debate, lawmakers, who took a pass on abolition six months ago, might want to reflect on the law of unintended consequences. They might want to read Turow.
“The incremental approach the U.S. Supreme Court has favored for the last twenty-five years, creating strict procedural hurdles to death sentences and declaring the death penalty unconstitutional in more and more settings — when applied to the mentally retarded; when decided, after a verdict, by a judge — will eventually stretch the fabric of the law to the point that it is too much of a patchwork to be regarded as a work of reason,” he writes. “Eventually, I expect the Court to conclude that capital punishment and the promise of due process of the law are incompatible.” Turow didn’t come easily to this position. Over the course of his career, he admits, he has been conflicted about capital punishment, beginning as a youthful opponent, becoming a legal proponent, then an anguished “agnostic” and, at the last, a considered abolitionist.
His essays review the progress of Illinois’ most recent high-profile struggle over this issue, and recount a personal journey. An accomplished novelist, Turow has no need to tell this tale in the third person; he was at the center of much of the political narrative as it unfolded. Turow represented on appeal Alejandro Hernandez, who, along with Rolando Cruz, was wrongly convicted for the 1983 murder of 10-year-old Jeanine Nicarico. It was during his connection with this case, which he took pro bono, that Turow began to see how far wrong capital cases can go. “There was no physical evidence against either of them — no blood, semen, fingerprints, hair, fiber, or other forensic proof. The state’s case consisted solely of each man’s statements, a contradictory maze of mutual accusations and demonstrable falsehoods as testified to by various informants and police officers.” Yet, despite evidence these men weren’t guilty, officials in DuPage County continued to prosecute them. Hernandez and Cruz weren’t freed until 1995.
They were, as Turow notes, among 17 men who were legally absolved of the murders for which they were sentenced to death. By way of comparison, 12 men have been put to death since 1977, when Illinois reinstated the death penalty.
The story of the political crisis surrounding the mounting number of wrongful convictions is well-known.
Then-Gov. George Ryan called a moratorium on executions and appointed a commission, including judges, prosecutors and defense attorneys, to assess the extent of the problem. Turow was among those who served.
The panel, which met for two years, came up with 85 suggested reforms. Among them: No murderer should be sentenced to death if the conviction is based solely on the uncorroborated testimony of a single eyewitness or accomplice; the courts should determine the reliability of jailhouse informants; the number of eligibility factors for a death sentence should be reduced; and interrogations of suspects should be videotaped. Turow remained a close observer as lawmakers wrestled with the commission’s conclusions. And wrestle they did. Though they deemed some suggestions too controversial or unworkable, lawmakers did a praiseworthy job of debating and approving a significant number of them. They voted, for instance, to allow the Illinois Supreme Court to overturn death sentences it finds “fundamentally unjust,” to require hearings on the credibility of jailhouse informants and to require investigators to tape interrogations. That last reform, addressed in separate legislation, was signed into law.
The commission’s report and the legislature’s actions are covered in detail by Turow for anyone who wants a recap. But the most compelling aspect of his book is the personal history, Turow’s own struggle to find where he stands on the death penalty.
He begins with the potential for error. Because murder is the gravest of crimes, it arouses the most fear and passion, in individuals and in communities. And this makes prosecution of that crime more susceptible to error than with other crimes. This, he concludes, “calls either for safeguards we have yet to institutionalize — or even fully conceive of — or for renewed reflection about whether to proceed with capital punishment at all.”
And, though the death penalty is meant to be reserved for the most vicious of murderers, Turow finds plenty of evidence that perpetrators of what could be called more “typical” murders end up on Death Row.
This brings Turow to his strongest argument against the death penalty: the randomness of its application — randomness by race, gender, geog-raphy, the lawyers, the jurors — is, in short, “anything but the kind of bright-line proportionate morality the death penalty is intended to symbolize.”
In the end, Turow voted for abolition in the commission’s unofficial poll of its members. He expects to stick to that position. He also expects American opinion to continue to “ebb and flow.”
But his time on the commission, he believes, taught him he was looking at capital punishment the wrong way. “There will always be cases that cry out to me for ultimate punishment. That is not the true issue. The pivotal question instead is whether a system of justice can be constructed that reaches only the rare, right cases, without also occasionally condemning the innocent or undeserving.”
Peggy Boyer Long can be reached at Peggyboy@aol.com.
Illinois Issues, November 2003
