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The death penalty: A novelist gets real

The newest book from author and lawyer Scott Turow, who's known for legal thrillers, is a personal reflection on the morality of capital punishment.

October 12, 2003|David L. Ulin | Special to The Times

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

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