Discussing the morality of capital punishment

Few debates are more emotional than a discussion on the morality of capital punishment. Yet the topic is also one that's been subject to marked shifts in public opinion in recent decades. In the 1970s, use of the death penalty in the US seemed on its way out, only to swing sharply back into favor in the 1980s and '90s.

But now, segments of public opinion are undergoing another change, due in part to revelations about innocent defendants on death row.

It was the examination of this phenomenon - the assignment of death sentences to those innocent of the crimes of which they are accused - that caused two writers whose careers began in criminal justice to rethink their own views about the death penalty.

Author Scott Turow worked as a federal prosecutor before writing his first bestselling novel and representing death penalty inmates on appeal.

In his most recent legal assignment, he served on a commission appointed by the governor of Illinois to examine the state's death penalty law.

He reflects on the experience in his new book, "Ultimate Punishment" (Farrar, Straus and Giroux).

Mark Fuhrman, best known as a detective in the O.J. Simpson case, focused on Oklahoma's capital punishment record in "Death and Justice" (William Morrow).

Excerpts of the Monitor's interviews with each author follow.

Q: Even while representing death-row defendants, you wrote that you were agnostic on the death penalty? What did you mean?

ST: I could never make up my mind. I was against it. I was for it. Finally, I decided I didn't know what to think.

Q: How did your work on the Illinois governor's commission change your view on capital punishment?

ST: It allowed me to look at the system as a whole instead of focusing on individual cases. Instead of asking whether the death penalty is just in this case or that case, I had to ask whether the system could administer the death penalty in a way that was fair, just, and accurate. Looking at the entire system was a revelation.

I learned I was looking at the wrong question. The real question is, 'Can you construct a death penalty that only reaches the right cases without bringing in the wrong cases - the cases where people are innocent or undeserving?

The more I came to understand the dynamics of that system, the more I began to realize the answer is no, we'll never do it.

Q: Why not?

ST: We'll never do it because we want something from capital punishment that we don't want from any other crime.

We want the death penalty solely for symbolic purposes to vindicate our own view of what is just. For that reason, there is no margin for error.

It's probably no revelation to say we have innocent people convicted of lesser offenses. Naturally, we find it deplor- able, but we're not going to junk the criminal justice system.

The sad fact that it takes place with the death penalty is more alarming because there is no tangible benefit except for the symbolic importance to the public and victims' families. We can get the same benefits from putting them in prisons for the rest of their lives.

Q: What's the result if a state enacts all the fixes your commission proposed in Illinois?

ST: It will unquestionably give us a better death-penalty system that gives us fewer mistakes and is somewhat less arbitrary.

There's no question the death penalty can be made better - we can assure [that] every defendant has highly competent lawyers, impose standards on the decision to seek the death penalty and layers of review, demand videotaping of full interrogation of homicide suspects, get rid of felony murder.

You can do a host of things we recommended in Illinois. It would definitely improve the application of the death penalty, but we will still convict a certain number of innocent persons, and we have a higher propensity to do that in capital cases. The nature of offense is so awful it tends to make us less rationale.

Q: You suggest the courts will eventually reject the death penalty. Why?

ST: It's a race between the courts and technology. Medical advances may call the rationale for the death penalty into question. If we could reliably make people less violent, then the arguments for executing them is going to begin to fade away. It would make it easier to imprison even the most violent offenders.

Q: How has your attitude toward the death penalty changed since you were a police officer?

MF: I used to believe the death penalty cases were investigated better than anything else. What I found was exactly the opposite. They're not investigated as well as I'd investigate a simple robbery.

Once we've gotten someone on the hook and we believe they've committed the crime, then [prosecutors and police believe] it should be good enough for everybody else.

Q: How likely is it that Oklahoma executed an innocent person?

MF: Very likely. In fact, I think it's so likely that [it explains why] Oklahoma refuses to give relatives of executed inmates the DNA tests so they can find out for sure. What are they afraid of?

Q: What kind of pressure do prosecutors and police face?

MF: It's the ultimate case any attorney will go into court to prosecute or defend. When you seek the death penalty, it means this is the most heinous, atrocious murder committed in your jurisdiction and you must win. It's not 'I hope we win,' it's 'we must win.'

There is no conservative state where your sheriff or prosecutor will get away with saying, 'I'm opposed to the death penalty, and it's simply not right.'

Q: What do detectives do wrong? Will you talk about operating on hunches?

MF: When detectives go to a crime scene, you're certainly going to make conclusions that end up with some beginning theories about the case, but as you collect evidence and interview people and do your work, you can develop new ideas about what happened and you need to be open to that.

If you go to a crime scene and omit all evidence that might disprove that initial theory, you're no longer a detective. You're simply someone who believes someone is guilty.

Q: You focus on a forensic scientist as a source for several false convictions. What's the problem there?

MF: Forensic scientists should be absolutely blind to anything about the investigation. They should not discuss the case. Detectives shouldn't tell them what statements we have, don't tell them anything.

If they work in that vacuum, an incompetent forensic scientist won't be knowingly engaging in a case to get attention, gratify prosecutors or detectives, or gain their own power.

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