Massachusetts Citizens Against the Death Penalty

Reviewed by James P. Rooney

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

by Scott Turow

Scott Turow, the author of Presumed Innocent and numerous other legal thrillers, has written a small book on a big subject, the death penalty. There are of course numerous other books on the death penalty, most of them are written by people who began with a firm conviction for or against capital punishment and who seek to convince the reader to share that conviction. But Turow’s book is different, and more effective, because he came to the subject without having a decided position.

After Illinois Governor George Ryan imposed a moratorium on executions in the state, he established a commission to consider what to do about the death penalty in Illinois and asked Turow to sit on it. Turow admits that at the time he was a death penalty agnostic. Not that he hadn’t thought about it. When he served as a federal prosecutor, he could have been asked to seek a death sentence. He had been willing to do so, given what he knew of capital cases from a gruesome murder that one of his colleagues prosecuted. But he had also seen the down side of a capital punishment, having represented a man on death row who was demonstrably innocent – another man had confessed to the crime and provided details only the killer would have known – but whom the state still wished to execute despite the other man’s confession.

This unusually broad perspective on capital punishment gives Turow a rare visceral feel for the arguments of both sides. He doesn’t simply acknowledge that one could think that a person who had killed numerous times even after being imprisoned should be executed or merely acknowledge that the injustice suffered by his innocent client on death row might lead one to think the death penalty is unjust. He feels all these things himself. It is his process of sorting through these feelings during the two years he served on Governor Ryan ’s commission that is the subject of his book.

Though described as a lawyer’s reflections on the death penalty, the book is written for the general public, not for just for lawyers. While capital punishment, as practiced in Illinois and elsewhere in this country, is a complicated legal morass, he eschews the obtuse details of its workings to focus on the big picture. If you can follow Turow’s fiction, you can follow this book. Peppered through with stories of particular crimes, the victims they left in their wake, and the police, prosecutors, defense counsel, and judges who saw the cases through the legal system, Turow takes on the major principal arguments for capital punishment. One by one, he examines whether the death penalty is justified to deter others from killing or the murderer from doing it again, to bring closure to the families of murder victims, or to meet the ultimate crime with the ultimate punishment. Gently, almost imperceptibly, he lays each argument to rest.

But like his fiction, he leaves you hanging, not as to “who done it,” but as to where he ultimately comes out on the death penalty. By the end, it comes as no surprise that he now opposes it. His reasoning offers a possible way to move the death penalty debate forward. He asks that we stop looking at individual cases in isolation, but do as he was forced to do on the commission and look at capital punishment as a whole. Not only do individual cases lead to potentially polar opposite conclusions – justification of a system that executed mass murderer John Wayne Gacy and revulsion against it when it nearly executed Turow’s innocent client – but focusing on them fails to consider whether the system as a whole is just. Much as Turow obviously loves the law, he concedes that no legal system can function flawlessly. What that will inevitably mean is that one form or another of injustice will creep into the administration of the death penalty – seemingly identical cases will end up with one defendant on death row and the other not, a multiple murderer will get life while a garden variety murderer will get death, one family will see the person who killed their loved one executed and the other not – and this will lead to a disrespect for the law.

In the end, Ultimate Punishment is the antithesis of the typical death penalty polemic. It is humane throughout, respectful of the views of all sides, and mindful that the wound murders cause society must somehow be healed. Turow thinks law alone cannot heal that wound. Recognizing that “[o]ur horror and revulsion [of murder] undermine our capacity to reason,” he asserts that “[o]nly the attachments we have to each other, the antipodal experience of what goes on in the moment a murderer kills” can make us whole.

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