Wall Street Journal

By SCOTT TUROW

Capital pun­ish­ment has been one of the most noto­ri­ous train wrecks of American pol­i­tics. The Supreme Court declared it uncon­sti­tu­tion­al in 1972, but the result­ing pub­lic furor led the court to reverse itself in 1976. Although polls con­tin­ue to show major­i­ty sup­port for cap­i­tal pun­ish­ment, oppo­si­tion is fierce, espe­cial­ly from reli­gious lead­ers and human­i­tar­i­an orga­ni­za­tions who denounce it as a moral affront.

Meanwhile, the oper­a­tion of the cap­i­tal pun­ish­ment sys­tem remains under attack. According to the Death Penalty Information Center, the 100th inno­cent per­son was released ear­li­er this year from death row, rais­ing ques­tions about how many inno­cents have already been exe­cut­ed, while the sur­viv­ing fam­i­ly mem­bers of mur­der vic­tims often find the wait from tri­al to exe­cu­tion, aver­ag­ing 11.5 years in 2000, an insult­ing pro­trac­tion of their grieving.

These pat­terns came under intense scruti­ny in Illinois in March 2000 after the 13th exon­er­a­tion of a death row inmate in that state. Gov. George Ryan declared a mora­to­ri­am on fur­ther exe­cu­tions and appoint­ed a com­mis­sion to deter­mine what reforms, if any, would ensure that the cap­i­tal pun­ish­ment sys­tem was just and accu­rate. I served as one of the 14 mem­bers of the com­mis­sion, which deliv­ered its report last week. I believe some aspects of our expe­ri­ence may help make the nation­al debate less heat­ed and more focused.

Our report con­tained 85 spe­cif­ic rec­om­men­da­tions direct­ed to every stage of the crim­i­nal process, from police inves­ti­ga­tion through clemen­cy pro­ceed­ings. Included were pro­pos­als for a statewide pan­el to review local pros­e­cu­tors’ deci­sions to seek the death penal­ty; ban­ning cap­i­tal pun­ish­ment for the men­tal­ly retard­ed; sig­nif­i­cant­ly reduc­ing the num­ber of fac­tu­al cir­cum­stances ren­der­ing a mur­der­er eli­gi­ble for cap­i­tal pun­ish­ment; con­trol­ling the use of jail­house infor­mants at tri­al; and allow­ing tri­al judges to reverse a jury’s deci­sion to impose death. (An idea dis­tinct from Monday’s Supreme Court argu­ment about whether only a jury may find death jus­ti­fied in the first place).

Before the argu­ments about the wis­dom of spe­cif­ic rec­om­men­da­tions gath­er steam in Illinois and else­where, I want­ed to focus on one impor­tant aspect of the report that may be over­looked. More than 85% of the rec­om­men­da­tions we made were unanimous.

This was no small achieve­ment, giv­en the diver­si­ty of opin­ion in the group. The gov­er­nor appoint­ed, among oth­ers, a for­mer U.S. sen­a­tor, the gen­er­al coun­sel to the Chicago Police Department, the cur­rent head of the Illinois State Attorneys orga­ni­za­tion, the pub­lic defend­er in Chicago, a past pres­i­dent of the local bar asso­ci­a­tion and the son of a mur­der vic­tim. Among us, there were fierce oppo­nents of cap­i­tal pun­ish­ment and stout defend­ers, but we worked for two years in a spir­it of ami­ty and conciliation.

Looking over the rec­om­men­da­tions, there were three assump­tions that lim­it­ed the con­tentious­ness of our delib­er­a­tions and might, for that rea­son, be guide­posts in the death-penal­ty debate. First, respect for the polit­i­cal process. Second, respect for the legit­i­mate needs of the sur­viv­ing loved ones of mur­der vic­tims. And third, recog­ni­tion that the sys­tem requires reform.

Because nine of the 14 mem­bers of the com­mis­sion were present or for­mer pros­e­cu­tors, abo­li­tion­ists crit­i­cized the choic­es, assum­ing there was a pro-death-penal­ty major­i­ty. At the end of two years, after our rec­om­men­da­tions were for­mu­lat­ed, we called the ques­tion of whether the death penal­ty should be repealed. By then, at least, a major­i­ty of us favored abolition.

But repeal was not one of our rec­om­men­da­tions. That is because it remains clear that the major­i­ty of Illinois cit­i­zens and leg­is­la­tors favor cap­i­tal pun­ish­ment. As a body, we accept­ed that the Supreme Court’s deci­sions make cap­i­tal pun­ish­ment a polit­i­cal ques­tion, mean­ing it is prop­er­ly left to the cit­i­zen­ry. By denounc­ing cap­i­tal pun­ish­ment as bar­bar­ic, oppo­nents have engaged in a frontal attack on the moral char­ac­ter of those who favor it. Not sur­pris­ing­ly, this end­less game of yes-you-are, no-I’m-not has bogged down public discussion.

Accepting the polit­i­cal nature of the ques­tion means the argu­ment should be refo­cused as one about pol­i­cy, not moral­i­ty, requir­ing detailed infor­ma­tion about how the sys­tem oper­ates and not just a gut-check. As a nation we need to decide if the costs of cap­i­tal pun­ish­ment — the stag­ger­ing finan­cial toll of lit­i­ga­tion, the con­sump­tion of lim­it­ed court resources, the dis­par­i­ties in the sys­tem’s results, and the endur­ing risk of exe­cut­ing the inno­cent — are worth the pow­er­ful denun­ci­a­tion of ulti­mate evil that cap­i­tal pun­ish­ment is meant to trumpet.

Second, we remained con­scious through­out of the prop­er role of the sur­viv­ing loved ones of mur­der vic­tims. In the last decades of the 20th cen­tu­ry, cap­i­tal jurispru­dence went through a sea change in its atti­tudes toward sur­vivors. As late as 1987, the Supreme Court found it uncon­sti­tu­tion­al to offer evi­dence in a cap­i­tal sen­tenc­ing of the impact of a mur­der on sur­vivors, deem­ing it irrel­e­vant to the only prop­er issue, the blame­wor­thi­ness of the defen­dant. Yet the ris­ing tide of the vic­tims’ rights move­ment changed that. In most juris­dic­tions, loved ones are enti­tled to be heard dur­ing the death-penal­ty hear­ing, and pros­e­cu­tors fre­quent­ly pay close atten­tion to their desires. Often one defen­dant lives and anoth­er dies for vir­tu­al­ly iden­ti­cal crimes sim­ply because of the wish­es of survivors.

We met often with sur­viv­ing fam­i­ly mem­bers in hopes of deter­min­ing their views of the death penal­ty and what they want­ed from the process, includ­ing their search for emo­tion­al clo­sure. We found that sur­vivors need enhanced sup­port ser­vices and reli­able com­mu­ni­ca­tion about devel­op­ments in a case. Compassionate ser­vices, rather than a deter­mi­na­tive role in the penal­ty process, may be a bet­ter answer for sur­vivors as well as for the system.

Finally, whether we sup­port­ed or opposed the death penal­ty, we were all able to agree that the cap­i­tal pun­ish­ment sys­tem as it stood was in need of dra­mat­ic reform. Gov. Ryan, a long-time death penal­ty pro­po­nent, set a coura­geous exam­ple by tak­ing the polit­i­cal­ly dan­ger­ous step of halt­ing exe­cu­tions in the face of mount­ing evi­dence of mistakes.

Too often, those who favor cap­i­tal pun­ish­ment in prin­ci­ple have wed­ded them­selves to present prac­tices. In Illinois, 65% of death penal­ty cas­es have been reversed, either because of errors in sen­tenc­ing, or less often, in deter­min­ing guilt. Dueling stud­ies pub­lished last year put the nation­al rate at some­where between 43% and 68%. While those num­bers reflect com­mend­able scruti­ny by review­ing courts, they also bespeak a sys­tem which, fac­ing the inflam­ma­to­ry nature of most cap­i­tal mur­ders, fails with dis­may­ing fre­quen­cy to pro­duce legal­ly accept­able results. As Tom Sullivan, a co-chair of our Commission, said in hand­ing our report to the gov­er­nor, ​“repair or repeal” of the cap­i­tal pun­ish­ment sys­tem are the only prin­ci­pled choic­es. It is time we arrived at nation­al resolve about that. 

Mr. Turow is a lawyer and novelist.