Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty.

• Author: Devine, Richard A.
• Position: Book Review

SCOTT TUROW, ULTIMATE PUNISHMENT: A LAWYER'S REFLECTIONS ON DEALING WITH THE DEATH PENALTY (FARRAR, STRAUS AND GIROUX 2003).

Walter Berns relates the following story in his book on capital punishment:

In the dark of a wild night a ship strikes a rock and sinks, but one of its sailors clings desperately to a piece of wreckage and is eventually cast up exhausted on an unknown and deserted beach. In the morning he struggles to his feet and, rubbing his salt-encrusted eyes, looks around to learn where he is. The only human thing he sees is a gallows. "Thank God," he exclaims, "civilization." (1) Many of us are naturally troubled by the image of a gallows representing so-called progress. Isn't this the 21st century? Aren't we better than that? Then we recall John Wayne Gacy, Henry Brisbon and Timothy McVeigh and wonder, how far have we really come? Human nature is still human nature. No matter how far we have advanced technologically, there are still evil people among us, and the community has a right--and a duty--to protect its members from the worst of us. At some point we all must face the question of how we do that, and whether we will, as a community, use the ultimate punishment against a fellow human.

As a prosecutor who must deal with life and death decisions on a regular basis, I welcome Scott Turow's book, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. It should be read by anyone interested in this long-debated subject.

Turow has established himself as an author whose books make the best seller lists on a regular basis and who is widely respected for his writing talents and intelligence. His latest work outlines his personal thoughts on the death penalty, one of the most serious issues facing the nation's legal system.

The death penalty has long been among the most controversial issues in criminal justice, and for good reason. It is the ultimate punishment. The crimes for which it can be used are the most vicious and vile in our experience. Gacy murdered over thirty people. McVeigh killed 168 human beings in Oklahoma City. Brisbon told an engaged couple to kiss their last kiss before slaying them in the early 1970s, and then continued to kill while in prison for those crimes. Society rightly demands accountability for these terrible acts, and in many states the offender forfeits the right to live among us if convicted.

For much of this country's history the death penalty was regularly used as a punishment for murder and other serious crimes. But there were also times when the punishment fell out of favor, and in 1972, in Furman v. Georgia, (2) it was declared unconstitutional by the U.S. Supreme Court. (3) In 1976 the Supreme Court upheld a state death penalty statute, (4) which led to the reintroduction of capital punishment in many of our states. (5)

Since then hundreds of defendants have been sentenced to death, and a number of them have been executed. But the debate over the death penalty has never ended. Some people are morally opposed to it; others see it as a corrupting part of our criminal justice system. On the other side are those who argue with fervor that the death penalty is a vital part of any community, a mechanism for people living together to protect innocent life.

The debate is often heated on both sides, with much of the rhetoric aimed simply at stirring the passions of those who already share the speaker's views. For various reasons Illinois has in many ways become the center of the debate. In recent years several high-profile capital cases were thrown out, including some where DNA testing led to the release of those convicted and sent to death row.

Despite these controversies, the people of the State of Illinois, through their elected representatives, have retained the death penalty as an appropriate punishment for certain crimes. Nevertheless, ever since former Governor George Ryan imposed a moratorium upon executions (6) and then, in the waning days of his administration, ordered the release or reduction of sentence for every death row inmate in Illinois, (7) the public has rightfully wondered whether we really do have the death penalty. This uncertainty has left the issue in an unhealthy state of limbo.

In his book, Turow describes his transition from a "death penalty agnostic" (8) to a reluctant opponent of capital punishment, who wishes that it could be limited to situations involving "crimes of unimaginable dimension like [John Wayne] Gacy's or that would fully eliminate the marginal risks that incorrigible monsters like [Henry] Brisbon might ever again satisfy their vampire appetites." (9) He concludes that we are incapable of creating a justice system that reaches "only the rare, right cases, without also occasionally condemning the innocent or the undeserving." (10)

He attributes his change in views to his representation of two former death row inmates, Alejandro Hernandez and Chris Thomas, and his participation in Governor Ryan's Commission on Capital Punishment. Turow states that the Governor directed the Commission to identify "[w]hat reforms, if any, would make application of the death penalty in Illinois fair, just and accurate," (11) and then describes how he and the rest of the Commission responded to that directive by issuing a report two years later making more than eighty recommendations for improving the administration of capital punishment in Illinois, including increased DNA testing, (12) videotaping of interrogations and confessions (13) and reducing the number of statutory eligibility factors from twenty to only five. (14) Many, although not all, of those recommendations, have since been adopted by our legislature. (15)

When the Commission's report came out in April 2002, I was serving as the head of the Illinois State's Attorneys Association. We publicly supported the vast majority of its recommendations and thanked the Commission for its hard work. (16) However, because I considered some of the proposals misguided or even unconstitutional, I offered my own suggestions. In particular, I too called for a reduction of the eligibility factors, eliminating more than ten but retaining some rejected by the Commission. I specifically supported the...