Washington Post

by George F. Will

Of cap­i­tal pun­ish­ment, Massachusetts Gov. Mitt Romney says: ​“It makes rea­son stare.” Indeed it does.

Romney, speak­ing by tele­phone from Boston, says he wants to influ­ence the think­ing of poten­tial killers. He means cap­i­tal pun­ish­ment can deter — can ​“save a life or two.” That is one rea­son he wants to remove Massachusetts from the list of 12 states with­out capital punishment.

A sec­ond rea­son is that he believes there are crimes so heinous that only cap­i­tal pun­ish­ment can express — and by express­ing, rein­force — soci­ety’s pro­por­tion­ate revul­sion. A third rea­son is Stephen ​“The Rifleman” Flemmi. This month in Boston he plead­ed guilty to fed­er­al rack­e­teer­ing charges in con­nec­tion with his role in 10 mur­ders. He plead­ed to avoid the threat of death penal­ty charges in Florida and Oklahoma. ​“I would hate,” Romney says, ​“to lose the abil­i­ty to get Mr. Flemmi to turn state’s evidence.”

Romney has appoint­ed an 11-mem­ber Council on Capital Punishment. The legal and foren­sic experts’ task is to devise a statute that will meet the ​“high­est evi­den­tiary stan­dards.” He and his pan­el may con­clude that all stan­dards are porous enough to allow unac­cept­able uncer­tain­ties to pass through, and that evi­den­tiary stan­dards are hard­ly the only prob­lem with capital punishment.

So con­clud­ed Scott Turow, the lawyer and nov­el­ist, after his ser­vice on the Illinois com­mis­sion exam­in­ing that state’s admin­is­tra­tion of the death penal­ty. That expe­ri­ence trans­formed him from ​“a death penal­ty agnos­tic” into an oppo­nent, a process he recounts in a slen­der new book ​“Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty.”

He cites sev­er­al hor­ri­fy­ing case his­to­ries, includ­ing one of an inno­cent man con­vict­ed and sen­tenced to death twice. In the span the com­mis­sion stud­ied, one-third of the times Illinois stip­u­lat­ed the death sen­tence, the per­sons sen­tenced were sub­se­quent­ly either proved inno­cent or found, on sec­ond con­sid­er­a­tion, guilty of the offense but not deserv­ing exe­cu­tion. This was the con­text in which then-Gov. George Ryan this year com­mut­ed the sen­tences of all 167 Illinois pris­on­ers sen­tenced to death.

Turow cites chill­ing instances to remind read­ers that eye­wit­ness tes­ti­mo­ny can be much less than the ​“evi­den­tiary gold stan­dard” it is sup­posed to be. Furthermore, because of the psy­cho­log­i­cal tan­gles in the minds of some accused per­sons, and because of the lever­age pros­e­cu­tors have over the accused, there are excep­tions to the sup­posed iron law that peo­ple will not con­fess to a crime they have not committed.

And some of the very crimes for which Romney wants cap­i­tal pun­ish­ment reserved — the espe­cial­ly heinous — are the ones that, Turow says, ​“are unique­ly prone to error.” Community pas­sions around such cas­es put law enforce­ment, and espe­cial­ly elect­ed state’s attor­neys, under extreme pres­sure to quick­ly find and con­vict a cul­prit. These pas­sions trig­ger what Turow calls ​“the propen­si­ty of juries to turn the bur­den of proof against defen­dants accused of monstrous crimes.”

A prop­er­ly, mean­ing nar­row­ly, drawn cap­i­tal pun­ish­ment statute is nec­es­sar­i­ly prob­lem­at­ic. Restricting that penal­ty to a few offens­es guar­an­tees that it will rarely be inflict­ed. Furthermore, the thick fab­ric of pro­ce­dur­al pro­tec­tions that courts have woven around cap­i­tal pun­ish­ment guar­an­tees the elapse of, on aver­age, more than a decade between a con­vic­tion and an exe­cu­tion, and has gen­er­at­ed con­sid­er­able uncer­tain­ty about who among those con­vict­ed of the few cap­i­tal offens­es will be executed.

Yet a pun­ish­men­t’s deter­rent pow­er depends not only on the pun­ish­men­t’s sever­i­ty but also on the swift­ness and prob­a­bil­i­ty of its appli­ca­tion. Turow says that even in Wyoming, which has the nation’s high­est death-sen­tenc­ing rate, few­er than 6 per­cent of homi­cides result in a death sentence.

Romney is right that DNA evi­dence, which oppo­nents of cap­i­tal pun­ish­ment have used to free some inno­cent per­sons improp­er­ly con­vict­ed, can but­tress cap­i­tal pun­ish­ment by estab­lish­ing guilt unas­sail­ably. However, DNA evi­dence is not deci­sive — does not pro­vide incon­tro­vert­ible proof — in most capital cases.

A per­son­’s views of cap­i­tal pun­ish­ment often turn, Turow believes, on the per­son­’s views of ​“the per­fectibil­i­ty of human beings and the dura­bil­i­ty of evil.” But imper­fec­tions and temp­ta­tions to evil are not con­fined to crim­i­nals; they taint all human sys­tems. And as for mak­ing a poten­tial killer’s ​“rea­son stare,” Turow says dry­ly: ​“Murder is not a crime com­mit­ted by those close­ly attuned to the real-world effects of their behavior.”

Turow expects that the Supreme Court will even­tu­al­ly ​“con­clude that cap­i­tal pun­ish­ment and the promise of due process of law are incom­pat­i­ble.” Be that as it may, if Romney, a rea­son­able man, reads Turow’s essay, he will have an even more round­ed appre­ci­a­tion of how the ulti­mate pun­ish­ment makes rea­son not mere­ly stare but ulti­mate­ly turn away.

georgewill@​washpost.​com

Copyright © 2003, The Washington Post