Crime and the Ultimate Punishment

The United States, alone among advanced democracies, still enforces the death penalty. The public's support for capital punishment, however, seems to be dropping in the face of numerous recent exonerations of wrongly convicted death row prisoners. So now the argument gets serious. When does a crime warrant the death penalty? Some say the ultimate punishment should be reserved for "the worst of the worst," the most horrific cases -- yet attorney and best-selling author, Scott Turow, says that's exactly what can make for its undoing. Turow's new nonfiction book, Ultimate Punishment: A Lawyer's Reflections on the Death Penalty, is about his shift from a self-declared "agnostic" on the death penalty to his current belief that it can never be made fair and accurate enough. Turow served as one of 14 members of the March 2000 Commission appointed by Illinois Governor George Ryan to consider reform of the capital punishment system.

prisonMcNally: I was surprised to learn that you started as a writer, and turned to law and then back to writing. How did you navigate that?

Turow: Well, my dream from childhood was to be a novelist, and I pursued it in a relentless way. I thought I could will my way to becoming a successful writer. When I was a writing fellow at Stanford, I started to make myself nuts with the demands I was putting on myself to produce. And that's not how the creative process works.

I'm not really a scholar by nature, so it was a flabbergasting idea to me when it first came up, but I realized that the people who I was friendliest with, whose works seemed most interesting to me were all lawyers. My roommates from college, the people I'd been meeting in California. And I began to think: Well, maybe I should consider law school. My colleagues at Stanford were astonished.

McNally: It was like leaving the priesthood, right?

Turow: Absolutely. We're talking about the mid-70s now and the English Department at Stanford had been radicalized by Bruce Franklin. It was as if I was crossing the border to join the ruling class. My dear friend, Tillie Olson, who was then my teacher, is an old revolutionary... I don't think she can believe it to this day.

McNally: "Where did we go wrong?"

Turow: Right.

McNally: So you remain passionate about both literature and the law?

Turow: I certainly remain passionate about writing. Am I passionate about the law? Yeah, I think I'm passionate about the law's problems. The older I get, the more resigned I am to the inability of the law to cope with everything that's dropped in its lap. I've been practicing now since 1978, so we're talking about 25 years. And I've seen rules change. They're not sacred. They go this way, then they go that way. Sometimes you realize it's just rules for the sake of rules. You've got to have rules so these are going to be the rules this week, but next week, the rules may be different. That's an aspect of the legal process I'm no longer passionate about.

McNally: I read a comment by a friend of yours who noted that in South and Central America and Europe, it's common for writers and poets to be involved in politics and public policy. While celebrities are involved in the U.S. -- and certainly in California, writers and artists are not so much. Any thoughts about that?

Turow: I remember when I was a kid, James Michener ran for Congress from Buck's County, Pennsylvania, and Norman Mailer once ran for mayor of New York.

McNally: And Gore Vidal.

Turow: And Gore Vidal. But he comes from a political family. I think it is strange that our writers are less involved. And a lot of it comes back to that high/low distinction in American culture. Politics is somehow on the low side. So why would somebody who's really smart dirty themselves with a calling that involves having to appeal to people at their most basic level?

It's probably bad that we don't have more artists and writers involved in public policy debates. One of the problems, though, is that our artists and writing community tend to be so idealistic that they have a hard time being taken seriously. I remember watching Susan Sarandon sort of leading the charge publicly against the war in Iraq, and people were going: "Where do you get the right to tell people about whether or not we should go to war in Iraq?" It's terribly ironic -- being a movie star doesn't disqualify somebody from being governor of California. ....

McNally: Not anymore. How did this book happen? Why write a nonfiction book? You hadn't done it in 25 years.

Turow: Well, basically Terry, at the end of writing my last novel, Reversible Errors, about a death penalty case, I realized I had a lot left to say. In writing Reversible Errors, I was really dedicated not to write a tract or a polemic. I didn't want to try to write the Uncle Tom's Cabin of capital punishment.

This book originally began as a little essay I did for The New Yorker. Of course, I wrote four times more than they wanted to print. As a result, when my editor first said, "You know, I think there's a book here," I told him, "I think there's already a book on my hard drive."

McNally: It's a fairly short book. How many pages?

Turow: I think it's about 130. This really is a memoir of my own experiences as a lawyer in dealing with the death penalty and sort of a re-counting of my own intellectual journey on this issue.

McNally: I've interviewed Barry Scheck and Peter Neufelt about their work with The Innocence Project, as well as Herman Atkins, Jr., who was freed by DNA evidence after 13 years in prison. How much have you been influenced by the exonerations based on DNA?

Turow: One of my clients, Alex Hernandez, was ultimately exonerated because of DNA. I would not hesitate to add that he should've been exonerated by the plain evidence long before that, but it was DNA that had the public credibility to allow him to be released.

To me, what was interesting about Alex's case is that early on in the 90s when I began representing him, I thought this was a case of wanton prosecutorial misbehavior. For that reason, I thought there were no lessons to be taken from the case because I couldn't believe that what happened to Alex and his co-defendant Rolando Cruz could've happened to many other people. I thought their whole case was about bad prosecutors.

As these exonerations began to mount around the country, however, I began to realize that Alex's case was not unique but rather, symptomatic. In plain fact, there is a conspiracy of factors that tend to make it easier to convict the innocent in capital cases.

McNally: I think at this point the number is at least 108 freed by DNA evidence. You actually think it's easier to make certain errors in the cases where it's most serious. Why?

Turow: Because if you talk about the worst of the worst, the most hideous crimes -- John Wayne Gacey in Illinois who killed 33 young men, serial murder, or Timothy McVeigh, who killed 168 people at the Murrah Building in Oklahoma City -- these are the crimes that create the greatest anxiety and passion in the community. It's because of those anxieties that law enforcement wants to settle them. Still, it's very easy for police and prosecutors to try to force their evidence to fit the wrong foot.

It's also very easy for juries confronted with a monstrous crime to essentially take the approach: "I'm not letting this guy go unless somebody proves to me he didn't do it." Even though that is exactly contradictory to what we're supposed to do in our system.

McNally: So both prosecutors and juries would like a conviction.

Turow: Right, everybody wants to feel that the world has been put back to order. It's a natural human impulse, it's not corrupted. The police want to protect us, prosecutors want to protect us, but...

I'm not proposing by the way, that most of the people in death row in the United States are innocent. I don't think that that's remotely true. The point, though, is that this is a system designed to be nearly fault-free. And guess what? It's not.

We know McVeigh was guilty because McVeigh admitted he was guilty. But people tend to forget that he had a co-defendant named Terry Nichols. And I have to tell you something -- I thought the case against McVeigh, although a circumstantial case, was very imposing.

The case against Nichols, however, is very, very slim and very, very troubling. And here's a guy who, but for a jury, could've gotten the same punishment as McVeigh.

McNally: What is his status?

Turow: I'm sure he's in the middle of appeals. I think they're going to be pretty complicated, given the nature of the material that was released right before McVeigh was executed. It turned out that the FBI forgot to turn over 2,000 additional pages of discovery. Nichols' case was very close because there was clear evidence that he tried to get out of McVeigh's plan. I would imagine it's impacted by what was finally released by the government.

McNally: You've said this book is about your journey from agnostic to -- what do you say now?

Turow: I think the death penalty is a bad idea. It's an unwise expenditure of social energy and resources.

McNally: What role did your serving on the Ryan Commission play?

Turow: At the time I was seated on the Ryan Commission, I still hadn't made up my mind about the death penalty. What was important was having a couple of years to look at the death penalty as a system instead of looking at individual cases where you're an advocate with a particular stake in the outcome.

McNally: You've been on both sides?

Turow: I was never a prosecutor in a death penalty case. There was no federal death penalty when I was a prosecutor. I had a brief brush with a case where because of the peculiarity of the Assimilated Crimes Act the death penalty was conceivable. It was really sobering to me even though my involvement with the case was very brief.

McNally: What about your experience on Ryan's Commission?

Turow: Being on the governor's commission was basically a daily examination of all of the issues involved. In particular, I was asking myself on a consistent basis: "What are we doing with the death penalty? What is it for? What do we hope to gain?" I was able to clarify my own thinking over those two years.

McNally: You talk quite a bit in the book about those who survive when someone is murdered. There is now in America a pretty strong victims' rights movement. The victims are not those who are actually killed but those who survive. You grant that the death penalty has value for them, so in your mind what tips the scale?

Turow: I'm willing to accept the argument that for some victim's families, there is relief in seeing an execution. I can only take their word for it since there never been any disciplined studies that I can find. There are some victim's families that oppose the death penalty that do claim to have studied it.

A lawyer would say that the basic problem with the argument that the victims deserve it is that "it proves too much." The fact of the matter is that 49 times out of 50 in the case of first-degree murders, we do not impose the death penalty. The Supreme Court has told us to use this extreme punishment in a most exacting way.

So 49 times out of 50 there are a different combination of social interests that lead us to say to the victim's families: "Look, we're not going to do that here"; 49 times out of 50 we aren't saying that the victims deserve it. More often than not, victims are used as a sort of fig leaf for our retributive impulses. When prosecutors want to justify their decision to seek the death penalty, then they truck out the victims, and point the cameras at them, You know, mom and dad and sister and brother all weep, as I would if I were in their shoes, because they have endured a unique and devastating loss.

McNally: Someone consciously chose...

Turow: ... to end the life of somebody they loved.

McNally: What are some of the factors that lead to the mistakes? Scheck and Neufelt cite 10 of them in Actual Innocence. What do you think are the keys?

Turow: Well, some of the things that are the most striking to me contradict my own initial understanding of the criminal justice system. A lot of people confess to crimes they didn't commit. That's bizarre, right? I couldn't imagine why somebody would say they committed a crime they didn't commit.

A lot of this has to do with the niceties of police interrogation. Even when it doesn't involve physical force, it can be incredibly coercive. People don't really understand that. Next time you're sitting in your car with your knees knocking as you get a traffic ticket, imagine how it would feel to be accused of a murder you didn't commit. How guilt-ridden would you feel, especially if you're a person -- as is often in these cases -- who suffers from some kind of intellectual or emotional deficits? You know, after several days of questioning, a lot of strange things start to come out of people's mouths. Obviously in many of these cases there's some embroidery by the police of what's been said. Certainly that was true in Alex's [Hernandez] case...

False confessions are one thing. False eyewitness testimony is another. As soon as you say false testimony, it sounds like people are perjuring themselves. Anything but. The experience of witnessing a crime is so extraordinary that our perceptions basically fail and the memory then fills in on the back end. People are highly suggestible and they then end up with highly concrete memories of what happened.

My favorite example is that on the day of September 11th, I happened to have taken off from Boston, and my editor, who knew that, was looking around fairly desperately for me. He tracked me down in Chicago and then said: "This is terrible. I was sitting there and I saw the second plane hit the second tower. You know, it was a little two-engine private plane." And he'd been so busy trying to find his friends and make sure everybody was okay that he hadn't listened to the news reports. And I was like: "John, that's not right." "Oh no," he said, "I saw it." And that indeed was his memory.

McNally: Why wouldn't you have learned about the flaws in confessions and eyewitness testimony in law school?

Turow: That's not really what law school is about. Law school is about abstract reasoning and legal principles. The realities of eyewitness testimony or false confessions, what class would you learn it in?

McNally: It seems like a lawyer, especially a prosecutor or defender should know that.

Turow: You'll learn it in the public defender's office, hopefully in the prosecutor's office. You will not learn about it in most law schools.

McNally: Should you?

Turow: Well, what relevance is eyewitness testimony to a corporate lawyer, to a tax lawyer, to a bankruptcy lawyer, to a real estate lawyer?

McNally: It's clear from the book that this has been a difficult journey for you, one of both mind and heart. And as such, do you feel secure now on where you've come out on it. And if so, why?

Turow: Well, I feel relatively secure only because I'm getting older and I'm running out of time to change my mind. But I think that I'm pretty well solid on this.

McNally: Where do you think the country's going?

Turow: I think the death penalty in the United States won't survive this century. How soon it will be abolished is a different question. We have really two factors that are at work. One is the fact that it's such a patchwork at this point that it really does resist the notions of due process.

The other is technology. I mean, we're beginning to alter personality chemically. And people are taking to this very willingly. If the state can find a way to chemically neutralize the violent propensities of someone, as an alternative to putting them to death, I would think the public would agree to that.

Interviewer Terrence McNally hosts Free Forum on KPFK 90.7fm, Los Angeles (streaming at kpfk.org), where he interviews people he believes can help create "a world that just might work."

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