Death Is Different, Part 1

The Open Mind
Host: Richard D. Heffner
Guest: Scott Turow
Title: “Death is different …
VTR: 7/21/03

I’m Richard Heffner, your host on The Open Mind. And our program today deals once again with what surely is one of the most perplexing and compelling questions of our times and particularly, peculiarly of our own nation.

Though it is anathema, considered beyond the pale in so many other nations of the world, may we … should we continue to take the lives of those an obviously faulted American criminal justice system has judged to have taken the lives of others.

As a very young man my guest today thought not. Later as a Federal prosecutor, he thought otherwise. Like so many of us he has been of different minds. But as an extraordinarily readable and popular novelist, Scott Turow’s thoughts and words about the law have undoubtedly had great influence in the making of public opinion, as with “Reversible Errors”, his most recent work of fiction, whose very title sums up the fearful realization of so many of us that death is different. And that execution in error cannot be reversed.

Well, now Farrar Strauss and Grioux is publishing Scott Turow’s sensitive and thoughtful “Ultimate Punishment” a lawyer’s reflections on dealing with the death penalty. Stemming not only from my guests practice of the law and his many works of fiction about it, but mostly from his service on the distinguished Commission on Capital Punishment appointed by former Illinois Governor George Ryan, who declared a moratorium on that state’s executions when it became unavoidably clear that as a punishment, not only is death different, but that it has often been meted out in error. Error that might not be, perhaps at times has not been, reversed in time.

Indeed, I want to begin today by asking my guest to develop further that very last sentence of his January 2003 New York Times commentary on the fact that before he left office a few days earlier, Illinois Governor George Ryan had emptied the State’s Death Row by pardoning four condemned men and commuting the sentences of the remaining 167 prisoners.

Wrote Scott Turow, “At the end of the day perhaps the best argument against capital punishment may be that it is an issue beyond the limited capacity of government to get things right.” That’s a strange thing for a stranger like myself to the subject to consider. Develop that.

TUROW: Well, I, I really think that that’s true. And the more I’ve thought about it, the more, the more attracted I am to my own observation. I think that there are certain acts so monstrous, so far beyond the pale of what we expect in dealing with one another, that it’s almost impossible to deal with them in a reasoning way.

And those, of course, are the crimes that are most likely … or certainly most appropriately punished by a capital sentence. And, I, I really see the law constantly failing as it tries to wrestle with these extreme cases. And I, I also think that there’s an element in which the law holds out a promise, by saying “We will deliver an ultimate justice in this case”, that it simply can’t, can’t meet. There’s no … you know murder is an act that instills in everyone who comes close to it … horrible anxieties and the law is not going to be the sole element to restore us from those fears and sense of disruption that murder, murder imparts.

So I, I really think it … as I say, it … one line of ultimate punishment … you know the death penalty and murder in particular take us to the land’s end of the law.

HEFFNER: They take us to what you call a kind of Hobbsian interpretation of the nature of human nature.

TUROW: MmmHmm. MmmHmm.

HEFFNER: What does that do to you? You say you’ve made a journey …

TUROW: [Sigh]

HEFFNER: … to a Hobbsian point of view.

TUROW: Well, you know, I, I had a very long educational path. I went to graduate school in creative writing after college at Amherst and then ultimately back after teaching for a few years, I went back to Harvard Law School. But I have to say that perhaps the most consequential education of all were the eight years I spent in the US Attorney’s Office in Chicago, where I had to come to grips with the fact that the sort of cheerful Aquarian faith of somebody who had come of age in the sixties was not an accurate observation about who all human beings are. Many human beings want to do good for other people. But when you are a prosecutor you are forced to confront the element that resides, and I think, to some measure in all of us, the elements of selfishness, greed, violence, hatred and you see that, that you know that there’s a lot … a lot that the cheerful Aquarian view does not take into account.

HEFFNER: But why doesn’t that lead you, automatically, to a point of view that says “Kill the bastards …

TUROW: I think …

HEFFNER: … they are bastards.

TUROW: I, I think it does lead very quickly in that direction. And not in a, not in a sort of angry way, but in a resigned way that, you know, I do think that very few of the people whom we regard as monsters … just, you know, came out of the wrapper that way. The psychopathology, or the childhood histories, and usually both … are enough to break your heart. But you’re left with a maimed human being, who often will kill again if given the chance. And certainly when you’re a prosecutor your first duty, like a police officer’s, is to protect the public. And the best way to protect the public is to get rid of bad people and if they won’t stop doing bad things, get rid of them. Ahmm, you know, by not simply incarcerating them, but by, you know, killing them, if you have to.

HEFFNER: And pray tell, where are you now on this question of capital punishment?

TUROW: I, I … you know, I really … first of all I think I’m in a position where many Americans are in the sense that I understand the visceral attraction of both the abolitionists and the pro-death penalty arguments. Both of them really reach me and stir me. My problem is that when … I had these two years on the Ryan Commission to think hard and to analyze and when I went through the various purposes of the death penalty as they have been elaborated, none of them seemed to me enough to justify capital punishment except the moral argument that for ultimate evil there has to be ultimate punishment. That …

HEFFNER: That’s a considerable exception, isn’t it? To say “except for that argument.”

TUROW: Right. But, but, you know, when you get to that point you are saying several things. One you’re saying that the effect of this punishment is really not pragmatic, it’s not … it’s not a deterrent, it’s not … it doesn’t save money. We’re doing it to make a moral statement. It’s a symbol of our values. And the problem, once you go down that road is that it requires the law to sift, with a fineness that I do not think it can. If you’re trying to make a moral statement with capital punishment, than you have to identify, flawlessly, what ultimate evil is and who committed it.

And if you fail to do that, if you start executing the innocent or the undeserving, you have undermined the symbolic statement that you’re supposed to be making. Instead of a rigorous, finely tuned moral sense, you have a clanking, inaccurate apparatus that does not deliver the clear moral message you intend. And I think that’s very much what the situation is. We are inaccurate in all kinds of ways in applying the death penalty. The serious question is can it be made … can the justice system be made so much better that that observation of mine is no longer pertinent. And I think the answer is “no”. I think that there is something in the nature of these cases, as we said at the beginning of our discussion, just now …that resists that kind of careful deliberation and accuracy.

HEFFNER: What are the elements that create that resistance to careful deliberation and accuracy?

TUROW: Well …

HEFFNER: Meanness of spirit?

TUROW: Fear and anxiety, first of all. I mean these crimes are frightening crimes. You know when, as is the case … in a case that I worked on for many years, a ten-year old school child has been snatched from her home in broad daylight and Mom comes home from work, having left the child alone only for a couple of hours, finds her gone. And then, when the body is discovered and the autopsy performed, you realize that this blameless child died the most degraded and tortured death. That paralyzes a community.

It is every parent’s worst fear. And, you know, you don’t just want to execute the killer, you’d like to tear him limb from limb and make sure he suffers in half the degree that this little, that this little girl did. The urge for retribution in that situation is so powerful though, that, as in the case I’m describing, you barely pause to look at the evidence. “He’s accused, let’s go get him.” And it really is a lynch mob mentality and it takes over because people want to say, “It can’t happen again. Something so horrible won’t happen again, we’ve caught this guy, we’re going to get rid of him, we’re going to extinguish his life. We don’t have to worry about that any more.”

HEFFNER: But listen to what you’re saying … that people say this, people want this, people … may I say … need this. And you would say they may not have it, they may not have that final, ultimate …

TUROW: Assurance?

HEFFNER: … sense.

TUROW: Yes. I think that it’s …that goes back …ironically my … what I learned as a prosecutor goes to undermine that argument. Evil is persistent. And, you know, we will always have to deal with it, and so the urge to, you know, sort of “stamp it out” by killing, you know, the perpetrator of the horrible crime is an … it’s an errant impulse. It’s a wrathful impulse … I’m not somebody who thinks revenge is foreign to our concepts of justice. But if, if what we’re trying to do is sort of restore our sense of equilibrium by saying, you know, “it’s not going to happen again”, that, that’s not true, it will happen again.

HEFFNER: But you see, you say restore our sense of equilibrium by being able to say, “it’s not going to happen again” …

TUROW: MmmHmm.

HEFFNER: … and then you add that can’t be, it is going to happen again.

TUROW: It is going to happen again.

HEFFNER: But suppose you say, we need to have that sense of equilibrium, not coming from the sense that it’s not going to happen again … we know damn well that it will happen again …

TUROW: Right.

HEFFNER: But we need that revenge. Society. Individuals. Need that sense of having achieved revenge.

TUROW: Right. And if you …

HEFFNER: …you still reject that?

TUROW: Well, I would … anybody who thinks that life in prison without parole is equivalent to a walk in the part ought to go visit the penitentarities where that sentence is served. You know, I always laugh at the people who say, “you know I’m against the death penalty because I don’t believe in revenge” … as if, as if life in prison is anything other than an extreme act of vengeance. And an appropriate one. An appropriate one. I mean there, there’s … it sticks in the craw of people to see prisoners in country club settings.

Now, I have never seen a prisoner in a country club setting, but I can understand why people are bothered by the concept. Certainly where, in the state penitentiaries where sentences of life in prison without parole are served, you are not in a country club setting. You are instead caged in the company of literally the worst people in your society. Many of them with profound psychological problems. Many of them deceptive, many of them violent by nature.

It’s an environment where you’re never completely secure, where you’re cut off from family and, of course, generally speaking, you know, commerce with people of the opposite sex. It’s, it’s a terrible life. So if you want … I’m not saying, don’t take some measure of revenge, but realize that what exists now gives you that … gives you a large portion of that.

HEFFNER: Well, I was fascinated in the new book, your new book, “Ultimate Punishment”, you describe a visit to that jail where this horrendous murderer was being kept … what do you call the jail again?

TUROW: Tams … the super-max facility in Illinois.

HEFFNER: Right. Super-max is right. And I wondered whether that wasn’t itself the ultimate punishment.

TUROW: Well, some people think so. And, you know, the super-max facilities where … just to explain what that is … prisoners are held in isolation from other human beings. They have no flesh to flesh contact with other human beings … ever. They’re single celled, they’re always observed. They get, you know, 20 minutes, half an hour, an hour outside every day and five showers a week. And otherwise they’re in this pre-formed concrete block with, you know, the punch plate on the front of it.

HEFFNER: For the rest of their natural lives.

TUROW: Well, in some cases, yeah. I mean nobody has ever said that a prisoner has to stay in a super-max facility if he demonstrates that he can conform his conduct to the rules of a more open facility than they can be returned there. But you know damn well, looking at some of the men who are there … I talk about Henry Brisban, in “Ultimate Punishment”, who’s, you know, sort of the poster boy for the death penalty in Illinois in the minds of many. He’s not going back to … I don’t think you’re ever going to see him in a regular population again, a general population facility, unless super-max confinement is declared cruel and unusual itself.

But this is what I mean by the kind of hard-nosed realities that you eventually come to accept as a prosecutor. If you don’t want to have a death penalty and this is sort of addressed to my brethren in the liberal community … if you don’t want to have a death penalty, then you have got to accept the fact that there are going to have to be very harsh conditions of confinement imposed on those few prisoners whose experience teaches are inclined to murder again …demonstrably inclined to murder again.

And, I mean, you’ve got to accept that. If you don’t want to have super-maxes then the argument, I think, for killing recidivist killers becomes overwhelming. If you won’t establish conditions of confinement that are rigorous enough to give you a pretty high level of assurance that these people aren’t going to kill again, then you’re going to have to accept capital punishment. Because it’s … I don’t think it’s moral to force on other inmates, on guards, on nurses, on doctors, on teachers who come into the institution, on the guy who comes in to repair the vending machines … the risk that this person is going to kill again when you know, by, by experience that, that there’s a fair likelihood that that’ll happen.

HEFFNER: You know, I thought I knew that Scott Turow was against capital punishment.

TUROW: I am. I am.

HEFFNER: It doesn’t sound that way.

TUROW: I … I … as I said … I am … I really understand the arguments of both sides. And I … I don’t spend a lot of time talking about the indignity of killing another human being. Although I will tell you that standing in the death chamber at TAMS, which is where the execution chamber in Illinois is located, I was envisioning what would happen … that one of the men that I had just seen, including, you know, a recidivist killer who in point of fact is almost addled …that, you know, that that person who is now beyond, really any need for active restraint, is going to be brought in here and laid on this gurney in this hospital-like setting … and extinguished. It’s revolting. And even the people who are involved in, in that process who ostensibly believe in it do not come away from it unmarked.

HEFFNER: Well, you seem to say that many, many, many people in the criminal justice system, perhaps all, do not come away unmarked.

TUROW: I believe that that’s true. I think that … it, it just … dealing with extreme behavior sort of drives you into various corners.

HEFFNER: Then what do we do? Since we have to deal with extreme behavior?

TUROW: Well, it’s, it’s funny. You know we have … Ed Meese, who was Ronald Reagan’s Attorney General … believed in career prosecutors. And some of the relief that used to take place, at least in the Federal system, was that people were expected to leave. The income levels, the promotional opportunities were set up so that people served as a prosecutor for a while and left. And either they became civil litigators … they exited the criminal justice system with that education behind them. Or they switched to the other side and became defense lawyers, where you see, you know, you just see how harsh everything you used to do can be. And it’s just always an eye opener to those prosecutors who leave and then two or three years along find themselves defending somebody who they think is not deserving of any of the harsh treatment that they get.

So what I’m saying is, you know, changing chairs is one way to relieve the sort of combative and soul-transforming aspects of, of the criminal justice system. But, as I said, we now exist with a model from the Reagan years that I think is assumed more and more, not only in Federal systems, but even in states systems, that prosecutors will stay there for the rest of their lives.

And, all you do is see more and more horrible behavior. You deal with a system that is set up not to incarcerate merely on suspicion, but only on proof beyond a reasonable doubt, so you see people whom you are pretty convinced are guilty walk away every day. You get bitter about that because you feel you’re failing in your job to protect the public. And it does sort of drive you into a corner psychologically. The .. a lot of the career prosecutors I know, especially in the state system, they, they really exist in a kind of parallel universe.

They go to work, they’re harsh; they don’t believe in second changes. They scrap to get every person whom the police arrest, you know, the maximum punishment they can. They don’t tarry too much over the quality of the evidence, because they know, overwhelmingly, these people are guilty anyway. And then you go out to lunch with them and they’re light hearted. You know, they’re concerned about your kids and want to tell you about theirs and show you the pictures of their families. And they really are, I think, you know, they believe that, you know, that they are making the world safe from evil and they can then exit the building and live that less threatened life.

HEFFNER: Are they? Making it safer?

TUROW: Yeah. Of course they are. I mean I, I … look I was a prosecutor, I still think it was the best job I could ever have. It was, you know, I really loved the job. I believed in what I was doing, and if you ask me, I think, you know, I was fortunate to be involved in some very significant prosecutions. I think I left my community a better, safer place. And I think that can be said of dozens and dozens of men and women who served with me. So yes, of course, prosecutors do … you know, they, they do work that must be done and they do just, like the police, they do make the world safer.

HEFFNER: You know, I want to ask you about a lot of other things, but mostly about the weakest link, what you would identify as the weakest link in this criminal justice system.

But I need to ask you because our time is over, if you’d stay where you are and do another program.

TUROW: I will.

HEFFNER: Good. Thanks so much for joining me on this one, Scott Turow.

TUROW: My pleasure, Dick.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.