Life-and-death questions on capital punishment

Tom Brazaitis, Sydicated Columnist, Cleveland Plain Dealer
07/13/03

In the final presidential debate of the 2000 campaign, moderator Jim Lehrer asked the candidates, "Do you believe that the death penalty actually deters crime?"

"I do," George W. Bush replied. "That's the only reason to be for it."

Al Gore did not disagree. "I know that's a controversial view, but I do believe it's a deterrence," he said.

In a new, nonfiction book, Scott Turow, a lawyer and author of several best-selling novels on the criminal justice system, recounts the exchange and comments, "Mr. Bush, so far as I can tell, was wrong on both scores. There are a number of compelling rationales for capital punishment. And deterrence, upon examination, doesn't appear to be one of them."

One would have a hard time arguing that the death penalty is a deterrent in Bush's home state of Texas, Turow says. Texas has performed more than a third of the executions in the United States since 1976, but has a murder rate well above the national average.

In "Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty," due in bookstores Oct. 1, Turow examines the death penalty from his vantage point as one of 14 members of a blue-ribbon commission appointed by former Illinois Gov. George Ryan to tell him how to reform capital punishment in the state.

When Ryan introduced the commission in March 2000, reporters wanted to know how many of them opposed the death penalty. Four raised their hands.

"I felt no inclination to raise mine," writes Turow, who, at the time, considered himself "an agnostic on the death penalty."

Two years and one month later, the commission delivered a report calling for a series of re forms to prevent the errors of judgment and procedure that had led to Ryan's imposing a moratorium on capital punishment. This time, an informal poll of the commissioners revealed that a majority opposed the death penalty.

Turow recognized in himself the ambivalence most of us feel.

"One of the reasons that the death-penalty debate so preoccupies us is because of the essential nature of these questions," he writes. "The truth, I suspect, is that as crimes and cases unfold around us, many of us often feel a visceral attraction to both positions."

Drawing upon his experience as a lawyer on both sides of death-penalty cases and the research he did as a member of the commission, Turow invites readers along on his exploration of the question of whether the state ever is justified in taking a life.

He rejects theological arguments ("I respect the religious views of persons who regard life as sacred, but I don't want government action predicated on anybody's religious beliefs") and searches for an answer based on reason alone. He lays out the arguments for and against the death penalty so persuasively that the reader veers from one side to the other along with him.

Who does not sympathize with the indignity felt by victim families who mourn while "a life-incarcerated killer still has birthdays, Christmases, sees the sun rise and set, can look through the visiting room panel and hear his mother say she loves him and can repeat those words to her"?

On the other hand, the vast majority of murders do not warrant the death penalty, so how can you justify granting some families relief and denying it to others?

True, capital punishment makes an unequivocal moral statement - for ultimate evil, there must be ultimate punishment - yet numerous examples of wrongful or undeserved death sentences show there can be no guarantee of fairness.

"There will always be cases that cry out to me for ultimate punishment," Turow writes. "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 of the undeserving."

The death penalty survives, Turow says, because of "the chronic timidity of politicians" and "waffling" by the U.S. Supreme Court, which struck down federal and state capital punishment laws in 1972 only to reinstate them under certain conditions four years later.

In his famous dissent to a 1994 high court decision reaffirming the death penalty, Justice Harry Blackmun, frustrated by years of trying to write rational rules for state-sanctioned execution, fumed, "From this day forward, I no longer will tinker with the machinery of death."

Turow saves his personal decision on capital punishment to the last words of the narrative. Readers may agree with him or not, but no one will come away thinking that the biblical admonition, "an eye for an eye, a tooth for a tooth," can be accepted at face value in a civilized society.

Brazaitis, formerly a Plain Dealer senior editor, is a Washington columnist.
Contact Tom Brazaitis at:tbrazaitis@starpower.net, 202-638-1366
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