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Lives in the Balance

Gary Ridgway has admitted to 48 murders in the state of Washington, more than any other serial killer in US history. In his guilty plea, Ridgway told the court that he wanted "to kill as many women as I thought were prostitutes as I possibly could." He said he left their bodies in "clusters" and that he enjoyed driving by the sites afterward.

It is hard to imagine a more heinous series of crimes, and yet the former truck driver will escape execution. A plea agreement reached in November in which Ridgway agreed to help prosecutors recover the still-missing remains of some victims, sets his sentence as life in prison. Ridgway's adjudication cast a shadow on the death penalty, raising questions about the fairness of its application. After all, if a man who has admitted to more murders than any other serial killer in history is not deserving of death, then who is?

That's just one of the questions that Scott Turow's powerful new book, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty, attempts to grapple with as Turow works through his own ambivalence about capital punishment in the United States. Turow, the author of seven novels, including Presumed Innocent and Reversible Errors, and a practicing attorney, served on the Illinois Capital Punishment Commission appointed by then-Gov. George Ryan after Ryan became concerned that the growing number of people exonerated after being sentenced to death cast doubt on the entire criminal justice system.

That experience, along with his defense of several death row inmates, caused Turow to finally take a position on an issue that he had been wavering on for years. Basically, Turow had considered himself a "death penalty agnostic," unable to take sides. He had seen how the system could fail by either convicting and sentencing to death the innocent or meting out different sentences for similar crimes. On the other hand, he "could not call putting John Wayne Gacy to death an injustice."

"Every time I thought I was prepared to stake out a position, something would drive me back in the other direction," he writes. During his journey from agnostic to heretic, Turow was forced to wrestle with his own divided self. Was revenge a strong enough motive to retain the death penalty? Does it provide some level of moral equivalence? Is the penalty in proportion to the crime it punishes? And what of the chances that an innocent man or woman might be sent to death? Is that a price we as a society should be willing to pay?

From the outset, Turow sets himself apart from many who oppose capital punishment, people like me who question the death penalty and state-sponsored killing on moral grounds:

Many of the traditional arguments against capital punishment had little traction with me. 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. The simple principle that says 'if killing is wrong then the state shouldn't do it' has always struck me as just that -- simple, too simple for the complexities of human conduct. Besides, it would also bar certain state violence I accept as a necessity -- war, the use of lethal force by police. Nor was I moved by those who denounce the death penalty as revenge, which pretends that getting even isn't one of the motives for putting criminals in prison. How else to explain the stark conditions of American penitentiaries? On the other hand, I had a hard time defining what good came of capital punishment.

Turow dismisses deterrence as an argument, illustrating how the research on murder rates in states that employ the death penalty is -- and likely always will be -- inconclusive at best. And while victims' families might get some temporary sense of relief from knowing that the person who killed their daughter or husband has also lost his or her life, he argues that public policy must be broader in scope. "Once we make the well-being of victims our central concern and assume that execution will bring them the greatest solace, we have no principled way to grant one family this relief and deny it to another," he writes. Turow says Americans have come to "hide behind victims to some extent," which allows them to more easily rationalize their "own retributive impulses."

Ultimately to Turow, the issue is one of moral proportion. A majority of the American public expects capital punishment to fit the crime and that’s why it continues to support it. There is a visceral need we Americans feel to respond to some of the more heinous violence we have been forced to witness in our history. The perpetrators of the most violent crimes, the most depraved of the depraved, would seem to warrant the most extreme of penalties, an eye for an eye and all that. How does one, after all, punish a John Wayne Gacy, who was convicted of raping and murdering 33 young men in the late 1970s? What about a Timothy McVeigh, who participated in an act of domestic terrorism that took the lives of 168 men, women and children? And what of Jesse Timmendequas, convicted and sentenced to death in 1997 for raping and killing 7-year-old Megan Kanka in New Jersey? As Turow states:

It is essential to recognize that our adherence to the death penalty arises not because it provides proven tangible benefits like deterrence but rather from our belief that capital punishment makes an unequivocal moral statement. That belief, in turn, identifies the challenge. The argument for moral proportion places an enormous burden of precision on the justice system. Every execution must be just. . . . Accordingly, the system has to be unfailingly accurate; it must operate with a fine-tuned sense of what ultimate evil is, and it must identify unerringly who has committed it.

The key for Turow is that there is no way for the system to function at that level. The law is adjudicated by human beings with human failings. The system, therefore, is prone to mistakes and misjudgments, meaning that we will always face the possibility that the innocent and those undeserving of death could find themselves on Death Row awaiting lethal injection.

And yet, in the end, Turow admits he remains attracted to "a death penalty that would be available for the crimes of unimaginable dimensions." But then comes the caveat: "There will always be cases that cry out to me for ultimate punishment. That is not the true issue," he writes. "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 or undeserving."

That, of course, has proven impossible. The death penalty has grown in scope to cover more and more crimes, while the criminal justice system seemingly guarantees that those with enough cash will find a way around it and those with no money will be put to death. Americans can no longer pretend that they can fix what cannot be fixed, that there exists out there somewhere a system of safeguards that will only send the guilty and truly deserving to death. Turow’s ultimate conclusion is the correct one: It is long past time to abolish the death penalty.