Ultimate Punishment: A Critical Review of Turow on Capital Punishment

Introduction: The Death Penalty Debate in America

For a long time, the death penalty has been one of the most disputed and debated issues in criminal justice — and for good reason, as it is the ultimate punishment. The death penalty is reserved for crimes deemed most abhorrent and abominable. John Wayne Gacy killed more than thirty individuals. Timothy McVeigh murdered 168 people in Oklahoma City. Henry Brisbon told a betrothed couple to share a final kiss and then slew them at the outset of the 1970s, and he continued to murder people while imprisoned for those crimes. Society rightly demands accountability for such gruesome actions, and several states have determined that the most dangerous offenders forfeit the right to live among others if convicted.

For most of America's history, the death penalty was frequently employed as a punishment for murder and other severe crimes. There were periods when it fell out of public favor, and in 1972, in Furman v. Georgia, the United States Supreme Court declared it unconstitutional. Four years later, in 1976, the same Court upheld a state death penalty statute, resulting in the reinstatement of capital punishment in several states. From that point on, many offenders have been sentenced to death, and some have been executed. Yet regardless of that reinstatement, debate over the death penalty has never ceased. Some individuals are morally opposed to it; others view it as an undignified and debasing element of the nation's justice system. On the other side, passionate advocates argue that the death penalty is a significant element of any just society — a tool for protecting innocent life.

The argument is consistently intense on both sides, with much of the rhetoric directed at energizing those who already agree with the speaker's position. For various reasons, Illinois has in recent years become a focal point of the discussion. Several high-profile capital cases were overturned, including a number in which DNA analysis led to the exoneration of prisoners on death row.

Regardless of these disputes, the people of Illinois, through their elected legislators, have maintained the death penalty as a fitting punishment for particular crimes. However, since former Governor George Ryan imposed a moratorium on executions and subsequently, in the final days of his tenure, commuted or reduced the sentences of every death row prisoner in the state, the public has legitimately questioned whether the death penalty remains a functional reality. This ambiguity has left the subject in a troubling, indeterminate state.

Scott Turow and the Illinois Commission on Capital Punishment

Ultimate Punishment is Scott Turow's personal account of grappling with these issues during the period in which the Commission on Capital Punishment operated. He describes the various questions the Commission confronted and, to some extent, how he and his fellow commissioners worked through them. The emphasis is squarely on Turow's own thoughts and observations as a Commission member, and therefore the book is not a comprehensive survey of the death penalty. Nonetheless, even this account — focused specifically on Illinois — offers genuine insight into the majority of issues surrounding capital punishment.

In Ultimate Punishment, Turow recounts his transition from a death penalty skeptic to a reluctant opponent of capital punishment who wishes it could be restricted to circumstances involving crimes of unimaginable magnitude, such as those committed by Gacy. He hoped for a punishment that would permanently eliminate the risk that incorrigible killers like Brisbon might ever again satisfy their violent impulses. Turow ultimately concludes, however, that the justice system is incapable of confining itself to the rare, clear-cut cases without also occasionally convicting the innocent or the undeserving.

Turow attributes his change in outlook to the legal representation he provided to two former death row inmates, Chris Thomas and Alejandro Hernandez, as well as his participation in the Commission on Capital Punishment formed by Governor Ryan. He asserts that the Commission was charged with determining what reforms, if any, would make the administration of the death penalty in Illinois fair, unbiased, and accurate. Turow then describes how he and other Commission members responded to that mandate by producing a report two years later with more than 80 recommendations for improving the implementation of capital punishment in Illinois. These recommendations included videotaping of interrogations and confessions, improved DNA testing, and reducing the number of statutory eligibility factors from 20 to approximately 5. The state legislature has since adopted many of these recommendations.

Systemic Failures and the Human Factor in Capital Cases

The general impression left by Turow in Ultimate Punishment is that participants in the criminal justice system have little interest in improving matters on their own initiative. Turow reports that some prosecutors responded to the Commission's findings with outrage. Throughout the book, he emphasizes the shortcomings of the criminal justice system, apparently to demonstrate that the system is vulnerable to mistakes and manipulation from multiple directions. That is a candid observation, but it should also be acknowledged that most individuals in law enforcement operate under difficult conditions while working to ensure that justice is done. Law enforcement agencies and prosecutors take extraordinary care to ensure that the right person is charged and that the evidence is reliable. History also shows that judges and juries frequently work through difficult issues to reach fair and impartial decisions.

Human beings perform all of this demanding work, and therefore no one can claim that the process achieves perfection. It is equally true that in any large institution, some individuals will fail to meet the standards of their profession. This unavoidable human element is one of the central problems that Turow, and virtually everyone else, confronts when examining the intrinsic worth of the death penalty. Given this, it would be unreasonable to claim there can be certainty that no error will ever be made across the many cases that proceed to trial. At the same time, the multiple post-verdict and appellate reviews available to defendants provide numerous checkpoints to ensure that the evidence establishes guilt beyond any reasonable doubt. In capital cases especially, trial and appellate judges examine the issues very carefully to avoid error. Many of the troubling cases discussed today stem from years past, before the advent of DNA technology and the establishment of other improvements such as the Capital Case Litigation Fund.

Owing to these developments, it is now possible to point to cases where the evidence of guilt is overwhelming and apparently indisputable. Yet after all the arguments and perspectives, we are always left with the reality that the human factor exists, and infallibility cannot be guaranteed. The fundamental issue in much of the contemporary death penalty debate is that any human institution is by definition susceptible to error. No process, however rigorous, can guarantee that an innocent person will never be executed. The assumption underlying abolitionist arguments is that eliminating the death penalty ensures innocent people will not be put to death — but this ignores the other side of the equation.

If the death penalty is abolished, a prisoner serving a life sentence with no additional punishment to fear may murder a prison guard or fellow inmate. Furthermore, a career criminal facing a life sentence has no additional deterrent against killing a witness or a victim to prevent testimony against him; in fact, he has a positive incentive to kill. The issue is more complex than many activists would have us believe. Regardless of which path is chosen, innocent lives will be affected. These competing risks make the subject far more nuanced than either side of the popular debate typically acknowledges.

References

Turow, S. (2003). Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. Farrar, Straus and Giroux.