Scott Turow's Death Row Turnarounds

The best-selling author and lawyer explains why he went from opposing capital punishment to supporting it to once again being against it

By Thane Peterson

Author Scott Turow, 54, has led something of a charmed life. His first book, One L, a novel based on his first year at Harvard Law School, quickly became a bestseller in 1977. After that -- at first, while working as a lawyer and prosecutor -- he wrote a half dozen legal dramas, including Presumed Innocent, The Burden of Proof, and Reversible Errors. All have been hugely successful.

Turow, could have simply quit practicing law and settled into a comfortable suburban life on Chicago's North Shore, where he and his family live. Instead, while continuing to write, he started doing mostly pro bono legal work. Over the last decade, he has worked without charge on the cases of a number of condemned criminals, one of whom was freed after 11 years in prison.

More recently, Turow served as a member of the death-penalty reform commission created by George Ryan, the conservative Republican governor of Illinois who came to believe that his state's capital-punishment system was badly flawed. After 13 condemned prisoners in Illinois were proved innocent and released, Ryan called a moratorium on all executions. Then, last January, he created a furor when, on his last day in office, he commuted the death sentences of all 167 prisoners on the state's death row.

Turow's latest book, Ultimate Punishment (Farrar, Straus & Giroux, $18), is a compact look at the death penalty and how he came to oppose it. Turow has been both a prosecutor and defense lawyer, so his views on capital punishment are the result of agonizing over the subject from both sides of the bench. Recently, I spoke with him by phone about his latest book and his views on capital punishment. Here are edited excerpts of our conversation:

Q: Please describe how you came to your current opinions about capital punishment.

A:

I always say that I don't criticize anybody's position on the death penalty because I've held all of them. I started out as a sort of '60s flower child who thought it was barbaric. Eventually, I wandered into law school and became a prosecutor and could well understand [the rationale for the death penalty].

I then became a defense lawyer and saw the system go wrong, saw innocent people convicted and sentenced to death, and people who were certainly guilty, but who had not committed crimes as grave as the punishment. Then, being appointed Governor George Ryan's commission to reform [the death penalty system] gave me an opportunity to contemplate it systematically.

I concluded that I had been asking myself the wrong question all along. I used to ask myself, are there cases out there where I recognize the emotional and moral [need for] execution? For me, the answer was, "Sometimes, yes." [But] the right question is, given that there are such cases, can we devise a legal system that will reach those cases, and only those cases, without sweeping in the undeserving? As much as I answer the first question yes, I answer the second question no. That led me to say that when push comes to shove, I'm against capital punishment.

Q: Yet you say in your book that you would not hesitate to pull the switch on a convicted mass murder and torturer like John Wayne Gacy.

A:

If that was the community decision, I wouldn't have any moral compunctions about it... I would, in those cases, do it with the same mixture of resignation and sadness that [the prison wardens I have met have done it]. There's some real horror and conflict that goes into this, but I would do it. I don't believe I'm a better person [than prison wardens] or that this is something good people wouldn't do.

Q: What did it feel like to meet Henry Brisbon, the mass murderer who is serving a 1,000- to 3,000-year sentence at the Tamms Correctional Center, the super-maximum security prison in Illinois, where the worst offenders are kept?

A:

It was pretty strange.

Q: Were you actually in physical contact with him?

A:

Nobody is in physical contact with him.

Q: So, he's kind of like Hannibal Lecter?

A:

Yes. In Tamms, no physical contact with prisoners is allowed, but you can talk to him through the punch plate in the front door of his cell. He's a smart guy, very clever, very well-read. He had read a lot about the Illinois death penalty commission, as a matter of fact.

It's disquieting. You look at him and he's a pretty ordinary-looking, normal human being. He's not very big. But I know that the prisoners who have lived with him are really scared of him. One of the more interesting things I've [discovered] is that there are prisoners who actually really scare other prisoners. Even killers recognize that some people are sort of programmed to do mayhem. By Thane Peterson

Q: Is a life sentence in Tamms a severe punishment?

A:

I don't think anybody would want to live that way. Plenty of people involved in prisoners'-rights issues believe this is cruel and unusual punishment. I part company with them. I'm sorry, but you can't have it all. You can't say there's going to be no death penalty and then say we can't have severe conditions of confinement.

Q: Will the death penalty be an issue in the 2004 Presidential campaign?

A:

I'm almost positive it won't be. Democrats know that their problem is to attract white male [voters]. None of the Democratic candidates is against the death penalty, including Howard Dean, who used to be against it.

Q: Why do you think the U.S. is so pro-death penalty, while most other industrialized democracies consider it barbaric.

A:

One reason is that we have four-to-five times more murders than those countries.

Q: Aren't the two connected somehow?

A:

You think the death penalty and the murder rate are connected?

Q: I think the idea that Americans tolerate high levels of violence...

A:

The idea that we tolerate violence -- yes, but more particularly that we tolerate handguns. Certainly our laws on handguns and our murder rates are inextricably connected. But we're also a far more divided and fractious society.

Q: You nonetheless believe that capital punishment one day will be banned in the U.S.

A:

I think the momentum for capital punishment is slowing, and the momentum against it is increasing. As Americans increasingly recognize the [psychological] maiming that's usually in the background of someone who commits these acts, as they become more sophisticated about the law and its limitations, as they become more aware of how often innocent people are convicted in these cases, [the momentum against it will increase].

Q: You also mention globalization as a factor.

A:

Sooner or later, it's just going to become too embarrassing to sit there and explain to someone in Rome why you think the death penalty is a good idea. We've exported a lot of our culture, but the death penalty is one piece of it that hasn't traveled well. America also is a much more fundamentalist country than we like to acknowledge... Hellfire and damnation, rather than forgiveness, are very much a part of the fabric of American life.

Q: What makes capital crimes so different from other crimes?

A:

Most of these cases involve [crimes] that are not only beyond the capacity but beyond the imagination of many of us. These are often just monstrous crimes where a woman, say, is not just violated sexually but beaten and slashed to pieces. Then you say, "And that guy over there did it!" Very often, you don't have to say anything more. The level of pressure [to convict] in cases where there is a monster among us is enormous.

Q: Why would someone like you, who makes a good living and has a comfortable life, seek out these people…

A:

[Laughs]. You mean, what kind of sick voyeur am I?

Q: No, I'm thinking you're probably idealistic. You've taken on the cases of inmates you thought were innocent or had received too severe a sentence.

A:

By the time Presumed Innocent had been published [in 1987] and The Burden of Proof was on the way, I realized that I was freed of the excuse that I needed to make a living. In terms of the time I spent being a lawyer, [money] was largely beside the point. I just said to myself, "Why not do some of the things you promised yourself when you were 25 years old you would eventually do?"

So, I have. And I'm glad I have. It has worked out well for me and for a number of clients. And it has taught me a lot of things I didn't know.

Peterson is a contributing editor at BusinessWeek Online. Follow his weekly Moveable Feast column, only on BusinessWeek Online

Edited by Douglas Harbrecht

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