Ultimate Punishment Read online

  The rise of the victims’ rights movement in the 1980s was based on the reality that survivors were often shunted aside in the criminal process, poorly informed, and even forgotten. Yet it is also not coincidental that victims’ rights came into their own in the Reagan era, when there was increasing acceptance of a libertarian market-oriented ideology, which sees security as one of the few acceptable goals of government action. Building on that, the notion seems to be that when the legal system fails to provide security, citizens are entitled to assume the law’s power on their own. Thus victims have sometimes become virtual proprietors of the justice system in capital cases. Yet is it the law, alone, that has failed when a murder takes place? Or is the responsibility a far broader one that reaches to all the institutions in our society—schools, churches, towns, and families? Why make the law the one engine for recompense for survivors?

  To me by far the greatest fallacy in justifying capital punishment with the oft-heard mantra that “the victims deserve it” is that it is, in a favored lawyers’ phrase, an argument that “proves too much”—an argument that, when extended, defeats itself. 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. From each victim’s perspective, his loss, her anger, and the comfort each victim may draw from seeing the killer die are the same whether her loved one perished at the hands of the Beltway Sniper or died in an impulsive shooting in the course of a liquor-store holdup. The victims-first approach allows us no meaningful basis to distinguish among murders.

  Yet in a state like Illinois, 49 times out of 50, a death sentence is not imposed for a first-degree homicide. Are we saying that justice has not been done in 98 percent of cases? Not according to the Supreme Court, which has established constitutional requirements that presuppose that the death penalty will be imposed on a select basis. The Court requires legislatures to create exacting guidelines about the factual circumstances under which capital punishment may even be considered, followed by a scrupulous weighing of the aggravating and mitigating factors that characterize a particular crime and defendant. And in this formulation, no matter how liberal the victim-impact rules, the expressed desires of survivors for the death penalty have no permissible role. Indeed, when we allow victims to “own” the process, we are defying that framework.

  This leads me to think that we hide behind victims to some extent, identifying with their just wrath as a more comfortable expression of our own retributive impulses. Prosecutors, in particular, use the victims’ desires as a fig leaf for their own judgments. When the system works as it is supposed to, however, we subordinate the survivors’ wishes to other elements in our calculus of justice to determine what’s best for all of us.

  Nor is this wrong, in my view. While the magnitude of loss is by far the greatest for the bereaved, the community as a whole has been deprived of the victim’s potential. And when we punish, we do so in the name of all of us. The unique role of the jury in expressing the will of the community is the seeming reason that American law has exalted the jury’s role in capital matters, where, as in no other criminal case, it is empowered to pronounce sentence. (In acceding to this arrangement, the courts have also relieved judges of having to wield the law’s most uncomfortable responsibility on many occasions.) And we don’t decide what the community’s interests are merely by asking victims how they feel. We know how they feel: full of grief and rage. The law ought not prolong or complicate their suffering as it tends to do—but part of that is because prosecutors and legislators make empty promises of swift and sure justice, when they know that in capital cases our jurisprudence requires saturation certainty, and thus prolonged litigation, before an execution takes place. The legal system surely owes victims an outcome that is just by common lights, so they feel no obligation to take matters into their own hands, as was portrayed in the film In the Bedroom. And the Commission’s report pointed out that we can do a far better job in providing compassionate services for victims. Cops swarm the scene, but nobody tells the family how to get a death certificate.

  Yet capital punishment defines far too much about our society and us as its citizens for us to condemn defendants to death solely for the sake of victims whose loss will never be fully erased. In a democracy, no minority, even those whose tragedies scour our hearts, should be empowered to speak for us all. Allowing survivors to rule the death penalty process makes no more sense than it would to allow only the families of the dead in the World Trade Center attack to determine what will be rebuilt on the site. At the end of the day, if we are to subscribe to the death penalty, it must benefit the rest of us, as well.

  9

  DETERRENCE

  DURING THE THIRD PRESIDENTIAL DEBATE in 2000, Jim Lehrer asked both candidates whether they believed the death penalty was a deterrent.

  “I do,” George W. Bush answered, without disagreement from Al Gore. “It’s the only reason to be for it.”

  Mr. Bush, so far as I can tell, was wrong on both scores. There are a number of compelling rationales for capital punishment. And deterrence, upon examination, doesn’t appear to be one of them.

  When I started my Commission work, I felt that if it could be established that a death sentence, as opposed to life imprisonment, actually deters other people from committing murders, it would have to weigh heavily in any candid assessment of the subject. As a result, I became an unbearable noodge to the Commission’s gifted research director, Jean Templeton, who is both a lawyer and a sociologist by training, as I sought her assistance in wading through the learning in this area.

  At one point, I even persuaded Jean to undertake a very informal statistical cross-comparison between Illinois and surrounding states. We ended up measuring Illinois against Michigan, and Missouri against Wisconsin, death penalty states versus non-death penalty states, pairs that had similar urban density, racial makeup, and income levels. The murder rates were higher in the death penalty jurisdictions. Indeed, Texas, which has performed more than a third of the executions in the United States since 1976, has a murder rate well above the national average. On the other hand, in the last decade, not only has the consolidated murder rate in states without the death penalty remained consistently lower than in the states that have had executions but the gap has grown wider. As a result, some sociologists have suggested that executions actually inspire murder, a so-called brutalization effect, although proof of this point is as generally unavailing as that regarding deterrence, for many of the same reasons.

  Statistical cross-comparisons between states are inevitably subject to dispute. For example, many of the states that don’t have the death penalty didn’t have high murder rates to start; thus when murder rates drop, as they have since 1993, there might be a natural tendency for rates in the low states to drop faster. And many statistics can be argued both ways. New York reenacted its death penalty in September 1995, after the number of murders in the state had already gone into steep decline. On the other hand, New York’s rates have remained low versus other jurisdictions. Is this owing to the death penalty? Proponents usually find the clearest deterrent effect from executions, and there’s yet to be one in New York.

  Admittedly, you can go dizzy trying to make sense of the numbers and variables, but rigorous study is still not on the side of deterrence. For example, William Bailey and Ruth Peterson, scholars who had yet to close the book on deterrence, nonetheless conceded in 1994: “Deterrence and capital punishment studies have yielded a fairly consistent pattern of non-deterrence.” In 1996, Michael Radelet and Ronald Akers published a study in which they asked acknowledged experts—sixty-seven of the current and former presidents of three professional criminology organizations—whether the existing research supported a deterrence justification for capital punishment, without regard to their personal beliefs. Eighty percent said it did not. A 1995 poll by Peter D. Hart Research Associates of 386 police chiefs across the n
ation found that although the vast majority of them supported the death penalty for philosophical reasons, 67 percent felt it was inaccurate to say that the death penalty significantly reduces the number of homicides.

  The principal academic support for deterrence has come from free-market economists, who believe that all social choices are the work of rational decision-makers responding to incentives. The economists, accordingly, have a professional interest in proving that the incrementally more severe punishment represented by the death penalty functions to prevent murder. Led by the pioneering work of Isaac Ehrlich in the mid-1970s, these scholars have developed formulas for regression analyses the length of New Jersey, quantifying every conceivable variable. The Nixon administration relied on Ehrlich’s results in successfully asking the U.S. Supreme Court to reauthorize capital punishment in 1976. Yet Ehrlich and his followers have been stingingly criticized for methodological and conceptual shortcomings by other scholars, and more recent studies haven’t seemed to answer objections. A 2001 paper found a deterrent effect, but the formulas employed also showed that murders are more prevalent in rural areas than in cities, a result that flies in the face of experience.

  Nor does the econometric framework fully address fundamental objections to the psychological model being employed. My own impression, based on experience but little social science, is that murder is not a crime committed by those closely attuned to the real-world effects of their behavior. It’s characteristic of the criminal offenders I’ve represented over the years, especially the young and the poor, that many seem unable even to conceive of the future. Instead, killers appear to me to act out a range of narcissistic and infantile impulses—rage, perverted self-loathing, or a grandiose conviction they’ll never be caught—in which consequences have no role. Defenders of Ehrlich and his followers adhere to the numbers. If the data bear them out, they contend—for example, by showing a decline in murders in the wake of executions—their assumptions must be correct.

  At the end of the day, the best I could say was this: If the death penalty is a deterrent, that fact is not visible to the naked eye. When you are asking citizens to capitulate to their government’s right to kill them, you’d better be able to show them something they can understand in their own terms. Econometric models and regression analyses cannot possibly contribute much to the debate.

  There is, of course, another economic argument made in behalf of the death penalty: it saves public funds, because the state does not have to provide lifetime support to an incarcerated killer. But in this, like so many other things, lawyers have a huge impact on costs.

  In the United States in 2000, the average period between conviction and execution was eleven and a half years, with lawyers and courts spewing out briefs and decisions all that time. Public funds pay for almost all of this, since capital offenses are most often committed by the poor whose defenses are usually maintained at the cost of the state. There is a lot to pay for. Two lawyers at trial, one on appeal, another for the post-conviction proceedings, another for the habeas. And there must be prosecutors to oppose them, cops and other investigators to put the case in shape for trial, judges to hear the matter, probation officers, mitigation experts, usually a couple of shrinks, court reporters, and transcripts. And none of this considers the costs of incarceration while the convicted defendant is awaiting execution. Those on death row in Illinois and a number of other states are most often held in single cells, since a man with nothing to lose doesn’t make an especially good roommate when you aggravate him. Given all those costs, researchers seem to agree that imposing the death penalty is more expensive than leaving a killer alive. A new study published in 2003, which was conducted by the gubernatorial commission in Indiana, concluded that in present values, the costs in death penalty cases exceed the total price of life without parole by more than a third.

  Yet cost, I decided ultimately, is basically a red herring. Certainly cost savings don’t justify capital punishment. But they do not provide a compelling argument against it, either, in most states. Capital prosecutions are relatively rare. There have been roughly ten to fifteen new death sentences in Illinois every year. Even if we imagine that the costs in those cases exceed those in a non-capital case by a million or even two million dollars, the most grandiose number used by death penalty opponents, the amount saved by abolition is small in terms of a $52.5 billion state budget. The money spent on the death penalty may have high symbolic value, but curtailing that expenditure is certainly not enough to give us a tax cut or better schools.

  After two years of reading studies, I decided I wasn’t going to find any definitive answers to the merits—or failings—of the death penalty in the realm of social science.

  10

  MORAL PROPORTION: ULTIMATE PUNISHMENT FOR ULTIMATE EVIL

  ON THE COMMISSION, we spent little time in philosophical debates. We were warm with one another and our discussions wandered at times, but we were busy people gathered for a serious purpose and we had no illusions we could change each other’s minds. Yet to the extent that incidental exchanges occasionally got to the heart of the issue, those who favored capital punishment (and that included some of us who, at other moments, were against it, too) tended to make one argument again and again: Sometimes a crime is so horrible that killing its perpetrator is the only correct response. When everything is said and done, I suspect that the argument for what I refer to as “moral proportion” remains the principal reason why more Americans continue to support 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 person’s 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 I’ve noted, the U.S. Supreme Court’s lexicon, in explaining the unique procedural environment for capital cases, is that “death is different.” But murder is different, too. And for this reason I’ve 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 it’s 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 system’s aim sometimes is in hitting those targets, not only in Alex Hernandez’s 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 Illinois’ de
ath row, where literally dozens of the inmates wrote me proposing I work the same magic for them. To be frank, I wasn’t sure I wanted to shoulder that kind of burden again. I barely slept the week before I argued Hernandez’s appeal, even though it was inconceivable that his conviction was not going to be set aside. (As it turned out, the Appellate Court’s first question to the prosecution was, “Why has the state not confessed error in this case?” I.e., why can’t 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 system’s 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 he’d been convicted of first-degree murder and sentenced to death, even though none of the eyewitnesses to the crime had identified him. In a scene out of Reversal of Fortune, a number of the young lawyers immediately wanted to take the case. The old prosecutor in me preached caution. Several weeks later, the associates, including Brett Hart, who is now my partner, had investigated and found the letter was true—in a sense. None of the eyewitnesses had identified Thomas. However, his two accomplices had turned over on him, and with this encouragement, Chris had confessed three different times, the last occasion on videotape.

  On the night of October 25, 1994, Thomas, twenty-one at the time, and his two pals had run out of gas. Everybody’s stories were roughly the same. All stoned, they hatched a plan to roll somebody for money. Rafael Gasgonia, a thirty-nine-year-old Filipino immigrant, was unfortunate enough to leave the photo shop where he was employed and step out behind the strip mall for a smoke. The three grabbed Gasgonia, pulling him away from the door. Thomas held a gun on him to subdue him, but another struggle broke out and Chris fired once, instantly killing Gasgonia.