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

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.