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Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty

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I have been a fan of Scott Turow's fiction for a number of years. So, when I was asked to read and review his latest work, a nonfiction book dealing with one of the most controversial topics in America today, that of capital punishment, I eagerly anticipated the opportunity to find out what this bestselling author-lawyer had to say on the subject. I was not disappointed. Turow's very short treatise on the "ultimate punishment" (only about 120 pages of actual discussion) immediately brings the controversy into focus and lays out the arguments on both sides of the issue.

Admitting that initially he was an "agnostic" regarding the death penalty, Turow was appointed to serve on the Illinois Commission on Capital Punishment by then-Governor George Ryan, who had declared a moratorium on further executions in Illinois on January 31, 2000, a decision that was heavily criticized by many both in his own state and also nationwide. Ryan's justification for his action was that the Illinois' capital justice system was "fraught with error." Shortly after he issued the moratorium, Governor Ryan put together a fourteen-member Commission to look into the matter of reforming the system. Former prosecutor and now-defense attorney Scott Turow has used his experience serving on the Commission to examine the very serious debate over the death penalty in "Ultimate Punishment."

Turow's examination of capital punishment is not merely theoretical. He has been directly involved in death penalty cases, including successfully representing two different individuals convicted in death-penalty prosecutions. In other words, he can speak from practical experience and not just from the ivory tower of academic debate. Along the way, the reader will get a brief overview of the history of the capital punishment debate in America as well as insights into the pros and cons that have divided those in favor of the death penalty and those opposed to it. To his credit, I found Turow to be profoundly fair in his analysis of both sides of the argument.

One senses in this book that for the author this has been a very personal quest for wisdom regarding the matter of capital punishment. One can sense a continuing wrestling with the issue over a lengthy period of time. This book seems to be no "rush to judgment" on the part of Scott Turow. His writing at times is very introspective and at points, one might say, it is a clinical study in self-analysis involving very private ethical conflicts over a matter of supreme importance. He discusses the ordinary elements in the debate -- conviction of the innocent, deterrence, recidivism, and redemption -- but he also pays attention to the victims and their concerns, and how these concerns should be addressed in the calculus of the debate.

The death penalty as a form of punishment is not a subject one should take lightly. For decades, I have publicly debated the issue, written about it, and agonized over my position regarding it. Ultimately, I decided that capital punishment as a punitive practice should be discarded by society, not because it was cruel and unusual, and not because it didn't really deter, but simply because, since the right to life as a natural right is not derived from the State, the State had no right to take a human life. While Turow does not address the natural right argument in his book, he does discuss one aspect of the controversy to which I had not in the past given serious thought, namely the matter of "moral proportion" or "moral order." If nothing else, I thank him for bringing this matter to my attention for further thought.

After the Commission finished its task of investigation and discussion, Turow says in the final pages of the text, "when...called upon...to offer a definitive judgment on the death penalty, a number of my fellow commissioners revised their positions. But I appear to have finally come to rest on the issue. Today, I would still do as I did when...asked whether Illinois should retain capital punishment." How did novelist-lawyer Scott Turow vote on the issue? Well, you'll just have to read the book to find out. I'm not going to tell you.

At the end of the book, Turow includes a copy of the Preamble to the Report of the Illinois Governor's Commission on Capital Punishment, issued in April of 2002, with the suggested recommendations of the Commission. If capital punishment is to remain the policy of the day, then the recommendations made by the Commission demand everyone's attention, no matter what state they reside in, simply because the ultimate punishment, if it is to be fairly and rationally applied, needs to meet the highest standards of justice possible. Also, for those who want to go beyond Turow's brief discussion of the subject, the book includes thirty-eight pages of notes with citations to legal cases and text references, many of them available on the Internet.

In summary, this is a book to be recommended to all Americans because the issue is timely and very important. Turow has made a significant contribution to the subject of criminal justice and he is to be commended on his sober and impartial presentation.

I am not the type to offer a verbose review. Suffice it to say that this is an exceptional work of non-fiction that offers arguably the most balanced view to date of the U.S. system of capital punishment. I am a reformed death penalty proponent who went through a period of Turow-esque "agnosticism" before settling firmly on the side of opposition. I am no longer ambivalent. The death penalty should be abolished--period. Though Turow's book had no effect on my change, it did help solidify my current stance. This book should be required reading in any course of study dealing with the criminal justice system, and I do plan to use it in the future in the college criminal justice courses that I teach, along with Scheck, Neufeld, and Dwyer's "Actual Innocence." Perhaps the powers that be will eventually wake up and smell the stench of injustice . . . but I'm not holding my breath. . . .

Rendered with his fictional writing flair, Turow has tackled a subject matter that literarily deals with life and death. In this short though thorough essay, the novelist reflects on the many arguments surrounding the death penalty. In March 2000, a Moratorium on executions was declared by the then Governor of Illinois, George Ryan. Turow, along with many distinguished lawyers and academics, after two years of deliberation, submitted their recommendations. As a result of these findings, Ryan made international news by commuting the sentences of 167 persons left on death row. (This made headline news in Australia as the death penalty here was abolished over forty years ago) It should go without saying that this was a bold move by the Governor and potential political suicide. However he was at the end of his tenure and decided to make a choice and act on that choice. This book summarizes the many aspects of the Moratorium's deliberations, which makes fascinating reading.

Before the Moratorium, Turow admits that he was a "Death Penalty Agnostic". In other words, the man was a fence sitter, refusing to make a stand either way. However, after two years on the committee, and by the end of the essay, if asked whether Illinois should retain Capital Punishment, his answer is a certain, no. After reading the many reasons for and against the debate, I found it understandable why he fell off the fence. That the system is fallible and the fact that, for the most part, we seem to be hard wired for revenge, it has been all too easy, in our zealousness for justice or retribution, to execute innocent people. This has occurred far too many times for any government to be comfortable executing its citizens. But of course, as Turow plainly points out, this issue is a complex one, which begs to be further unpacked, potently analysed, in order to make it law, either way, across the boards.

From my reading, the actual recommendations from the committee are reasonable and fair. For example, ensuring the videotaping of all questioning of a capital suspect conducted on a police facility; that the eligibility criteria for the death penalty is narrowed to five points; that the death penalty is not available when a conviction is based only on the testimony of a single eyewitness. (p. 122) The Moratorium did not want the death penalty abolished entirely, however, these recommendations are designed to ensure an innocent defendant stands a lesser chance of wrongful execution.

Turow writes great novels about the law. In this case, he has approached a subject that absolutely requires further debate. And he has done it with honesty and enthusiasm with a novelist's flair and elegance. Good reading.

Scott Turow shows us the illogicality of the death penalty by telling of his own experiences as both a prosecutor and as a member of a task force assembled to inform the governor of Illinois on death penalty policy. Contrary to what many people may think, the book does not condemn the death penalty for moral reasons but on the basis of the ambiguity with which it is exercised in America. It would be too absolutist to say every American should read this book, so I will limit it only to those Americans who feel the death penalty has a place in our society and legal system. I doubt they will come away so staunchly in support of capital punishment and all that it entails.

Heard ULTIMATE PUNISHMENT, written and read by novelist Scott
Turow . . . it is a sobering, nonfiction account of Turow's service on the Illinois commission that investigated the administration of the death penalty and influenced Governor George Ryan's unprecedented commutation of the sentences of 164 death row inmates on his last day in office.

I remember in 2003 when I read about the above how I wondered,
"What gives?" . . . although not a strong supporter of the death
penalty (then), I still believed that it did serve a useful purpose in certain instances--and it was a definite deterrent to future crimes of a heinous nature.

Now, after reading Turow's latest effort, I'm not at all sure . . . I've become convinced that there are serious flaws in the criminal justice system . . . furthermore, I realize now that too many innocent people have been wrongly convicted of murder with race or lack of income often being the only reason this happens.

The author provides many examples, supporting his analysis
of the issue . . . this one really struck home: [Chris Thomas is]
"condemned to die because he is poor and belligerent, while
the likes of the Menendez brothers, who shotgunned their
parents for their millions, or the Unabomber . . . get life."

Turow takes his skills as a story teller and lawyer and fuses them to make clear and convincing arguments against the death penalty, both moral and practial. I'd recommend this book to people that already have some legal knowledge.

Calling himself a "death penalty agnostic," Turow takes a moderate position on the death penalty. It's a refreshing read inspired by Turow's participation in the post-moratorium, Illinois death penalty commission. Turow lays out an analysis of some very important considerations. While he never really takes a position, he examines the issues from all angles, from a very good discussion of victim rights to a very good discussion of alternate incapacitation of criminals. He candidly admits that this is a book based on his experiences and not necessarily on scholarly study. Overall, I would recommend the book to anyone interested in the topic, with the caveat that you don't limit your reading on the topic to this book.
As far as Turow goes, I'm not even a big fan of his non-fiction work.
Happy Reading

In January of 2003, Illinois Governor George Ryan commuted the death sentences of every resident of death row in his state. As a result, 167 prisoners were spared from possible execution by lethal injection. The decision, made during the last week of Ryan's term as governor, was the culminating event in a four-year journey through the labyrinth-like issue that is capital punishment. Ryan, a strong proponent of the death penalty in 1999, became an equally strong proponent for its abolition in the span of four years. Along the way he converted many others to his viewpoint. When told by an accomplished writer such as Scott Turow, the story of that conversion has the ring of a classic and suspenseful novel.

Turow's ULTIMATE PUNISHMENT: A Lawyers Reflection on Dealing with the Death Penalty is the author's personal reflection on his service on Ryan's Commission, created to examine the Illinois Death Penalty Law. Upon election to Governor in 1999, Ryan faced a capital punishment process in Illinois that had run amuck. Like many states, Illinois had reinstated the death penalty in the late 1970s. During the 22 years that the law had been in force, 12 men had been put to death in the state. In that same time period, 13 men had been released from death row because their innocence and wrongful convictions had been established. Governor Ryan became convinced that serious flaws existed in a criminal justice system that convicted innocent people. In January of 2000 he took two important actions. First, he imposed a moratorium on further executions in his state. Then, he established a commission of lawyers, criminal justice experts and others to examine the Illinois law and recommend procedures that would fix a fatally flawed system. Turow was a member of the commission.

Although most readers are aware of Turow's work as a writer of courtroom fiction, many may not know that he continues to toil as a practicing attorney. Turow's career as an attorney began as a federal prosecutor in Chicago. During his legal career he appeared in court as both a supporter and opponent of capital punishment. At the time of his appointment to the Ryan Commission he considered himself a "death penalty agnostic."

ULTIMATE PUNISHMENT is not a lengthy study of capital punishment in America. As public opinion on the issue has careened wildly from opposition in the 1960s to strong support in the 1980s and 1990s and now serious doubt in the 21st century, there have been many exhaustive treatises on the issue. Turow seeks to examine the issue from a very narrow, less legalistic perspective. Accepting that there are circumstances when the death penalty is appropriate, he ponders whether the criminal justice system can decide those cases correctly and still make certain that the innocent or otherwise undeserving remain protected. After serious introspection and consideration, Turow's answer is no. Because of the serious manner by which he confronts the question, his answer is entitled to substantial weight.

Turow has documented his position with a plethora of footnotes and supporting material. ULTIMATE PUNISHMENT is therefore not only thought-provoking writing but also a potentially valuable reference source for anyone interested in this subject. America has not yet resolved the criminal justice system dilemma of capital punishment. As the debate intensifies, the viewpoint of men like Turow will be of great value to those who view the debate on capital punishment as an important comment not only on the criminal justice system but on our society as well.

--- Reviewed by Stuart Shiffman

While more of a hard-cover pamphlet or essay than a book, Scott Turow's "Ultimate Punishment" is a good look at the key issues involving capital punishment in the United States. The book is drawn from Turow's experience on a commission created in 2000 to review capital punishment in Illinois, a state that clearly had problems and inconsistencies in its use of the death penalty. This commission indirectly lead to Gov. Ryan staying the excecutions of 167 prisoners on death row in 2003. The book's brevity serves Turow well, in that he doesn't get bogged down in certain narrow arguments (particularly concerning statistics related to deterrence) relevant to the debate. Further, there is no moral grand standing. He takes the concerns of both sides in earnest, but eventually comes to believe that the death penalty should cease to exist. He writes and argues clearly and convincingly for his position, I think a great number of Americans will agree with him. Turow believes that eventually the United States will do away with capital punishment. His book marks a further step in that direction.

Scott Turow was one of 14 members of a Commission named by the then Governor of Illinois, George Ryan to study and make recommendations on the state's death penalty law. This book is a result of that study. Turow discusses the usual arguments for and against this ultimate penalty. Some of his findings conclusions are expected; others were surprising, at least to me. The usual conclusions are here-- the vast majority of individuals convicted of crimes are guilty. Whether you get the death penalty or not depends on where you live. You are much more likely to get the death penalty in rural areas than in large urban areas. To quote Turow, other factors are ". . . race, gender, geography, who the lawyers and jurors are, and the sheer serendipity of circumstances. . ." Some people are guilty of the crime of having the wrong defense lawyers, and, of course, of being poor. Turow discusses the case of Chris Thomas, a death row inmate, who had been defended by two private attorneys under contract with the local public defender's office that paid them $30,000 per year to defend 103 cases, one of which had to be a capital case. The two attorneys worked together on Thomas' case. One of them had never had any role in a death penalty case; the other had been standby counsel for a defendant, already under a death sentence in Ohio, who had represented himself. The attorneys therefore mounted a six hundred dollar defense for their client. I had always thought that black people are more likely to get the death penalty than whites. Not so, according to Turow; black people just get convicted more. In Illinois 70% of all persons convicted and sentence for first-degree murder are black; their victims have been 60% black. Once convicted, however, white murderers are sentenced to death at a rate two and one half times that for black murderers. Turow's conclusion is that white people tend to kill other whites and that "choosing a white victim--turns out to be the controlling variable." Turow also points out though that because wealth, power and status for the most part still is in the hands of white people, that race of course is a factor.

Some of Turow's chapters are "Convicting the Innocent","Bad Faith", "The Victims","Deterrence", "Redemption", "Will They Murder Again." I was blown away to learn that some death penalty advocates can live with the notion of occasionally executing the innocent and make the comparison of childhood inoculations and driving an automobile. The overall good outweighs the risks. Turow disagrees with this logic, saying that the prospect of executing someone who is "blameless cases a special pall over the death penalty." Turow discusses with great compassion the plight of victims' families and loved ones. "What made the deepest impression on me was my eventual recognition that losing a loved one to a murder is unlike any other blow delivered in our often-cruel lives." He concludes, however, that the expressed desires of survivors should not be permitted in deciding who gets the death penalty.

Turow, who described himself as a "death penalty agnostic" when he began this study ultimately became a believer against the death penalty although he respects the judgment of the greater number of U. S. citizens who believe the death penalty should be given for the most horrific of crimes. Turow's conversion certainly came not for religious reasons. Unlike Sister Helen Prejean, he maintains if his job called for it, he could "push the botton" if the crime were heinous enough. Even though Turow comes down ultimately against the death penalty, he says "I admit I am still attracted to a death penalty that would be available for the crimes of unimaginable dimensions. . . The pivotal question. . . is whether a system of justice can be constructed that reaches over the rare, right cases, without also occasionally condemning the innocent or the undeserving." It is Turow's belief that the answer to that question is "no."

As you would expect from someone who is also a novelist, Turow writes with a great deal of flair in this insightful, well-reasoned book. Whether it will change anyone's opinion, who's to say? Everybody has opinions on abortion, gun control, gay marriage, the death penalty, etc. although people cannot express any logical reason their their views. Regardless of whether this book changes the way you think about the death penalty, you will come away from it better informed and should have an opinion you can back up with facts.