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Authors: Scott Turow
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capital punishment rather than oppose it.
For me, thinking about capital punishment has always presented the moral equivalent of Chinese handcuffs. The more insistent one is about the profound spiritual horror of the state taking a life, any life, the graver the crime becomes that occasions the punishment. Murder is a violation of another personâs humanity so absolute that it is literally incomparable. Indeed, our fixation on murder in novels and film suggests our continuing inability to come to grips with it, even imaginatively.
As Iâve noted, the U.S. Supreme Courtâs lexicon, in explaining the unique procedural environment for capital cases, is that âdeath is different.â But murder is different, too. And for this reason Iâve always thought death penalty proponents have a point when they say that it denigrates the profound indignity of murder to punish it in the same fashion as other crimes. These days, you can get life in California for your third felony, even if itâs swiping a few videos from Kmart. Does it vindicate our shared values if the most immoral act imaginable, killing another human being without any justification, is treated the same way? For ultimate evil must there not be ultimate punishment? The issue is not revenge or retribution exactly, so much as moral order.
The death penalty in this context maintains its hold on the American conscience because of its intensely symbolic nature. Values count enormously in our lives. But 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. If we execute the innocent or the undeserving, then we have undermined, not vindicated, our sense of moral proportion and the clear message capital punishment is meant to send. 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.
I arrived on the Commission with personal experience in how poor the capital systemâs aim sometimes is in hitting those targets, not only in Alex Hernandezâs case, but also in that of Christopher Thomas. I began representing Chris in 1996, not long after my role in the Hernandez matter was fully concluded. The story of the lawyer-author who, along with many others, had labored without charge to help free Hernandez had been popular with the press and even more so along Illinoisâ death row, where literally dozens of the inmates wrote me proposing I work the same magic for them. To be frank, I wasnât sure I wanted to shoulder that kind of burden again. I barely slept the week before I argued Hernandezâs appeal, even though it was inconceivable that his conviction was not going to be set aside. (As it turned out, the Appellate Courtâs first question to the prosecution was, âWhy has the state not confessed error in this case?â I.e., why canât you guys admit you made a mistake?)
More important to me, even if the percentage of innocents on death row is higher than I ever would have imagined during my years as a prosecutor, it remains the fact that the overwhelming majority of those convicted are guilty. If I was going to do this again, I wanted a case that would be less of a crusade and would instead expose me to more of the systemâs routine operation.
One afternoon I had assembled a group of young lawyers in my office to attend a meeting on pro bono death penalty work when, as a pure coincidence, I found a letter in my in-box. It was from Chris Thomas, who said heâd been convicted of first-degree murder and sentenced to death, even though none of the
For me, thinking about capital punishment has always presented the moral equivalent of Chinese handcuffs. The more insistent one is about the profound spiritual horror of the state taking a life, any life, the graver the crime becomes that occasions the punishment. Murder is a violation of another personâs humanity so absolute that it is literally incomparable. Indeed, our fixation on murder in novels and film suggests our continuing inability to come to grips with it, even imaginatively.
As Iâve noted, the U.S. Supreme Courtâs lexicon, in explaining the unique procedural environment for capital cases, is that âdeath is different.â But murder is different, too. And for this reason Iâve always thought death penalty proponents have a point when they say that it denigrates the profound indignity of murder to punish it in the same fashion as other crimes. These days, you can get life in California for your third felony, even if itâs swiping a few videos from Kmart. Does it vindicate our shared values if the most immoral act imaginable, killing another human being without any justification, is treated the same way? For ultimate evil must there not be ultimate punishment? The issue is not revenge or retribution exactly, so much as moral order.
The death penalty in this context maintains its hold on the American conscience because of its intensely symbolic nature. Values count enormously in our lives. But 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. If we execute the innocent or the undeserving, then we have undermined, not vindicated, our sense of moral proportion and the clear message capital punishment is meant to send. 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.
I arrived on the Commission with personal experience in how poor the capital systemâs aim sometimes is in hitting those targets, not only in Alex Hernandezâs case, but also in that of Christopher Thomas. I began representing Chris in 1996, not long after my role in the Hernandez matter was fully concluded. The story of the lawyer-author who, along with many others, had labored without charge to help free Hernandez had been popular with the press and even more so along Illinoisâ death row, where literally dozens of the inmates wrote me proposing I work the same magic for them. To be frank, I wasnât sure I wanted to shoulder that kind of burden again. I barely slept the week before I argued Hernandezâs appeal, even though it was inconceivable that his conviction was not going to be set aside. (As it turned out, the Appellate Courtâs first question to the prosecution was, âWhy has the state not confessed error in this case?â I.e., why canât you guys admit you made a mistake?)
More important to me, even if the percentage of innocents on death row is higher than I ever would have imagined during my years as a prosecutor, it remains the fact that the overwhelming majority of those convicted are guilty. If I was going to do this again, I wanted a case that would be less of a crusade and would instead expose me to more of the systemâs routine operation.
One afternoon I had assembled a group of young lawyers in my office to attend a meeting on pro bono death penalty work when, as a pure coincidence, I found a letter in my in-box. It was from Chris Thomas, who said heâd been convicted of first-degree murder and sentenced to death, even though none of the
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