Do Two Wrongs Make A Right?

North Carolina just presided over the 1,000™ execution since capital punishment was reinstated in the late 70′s. To commemorate this grim milestone, I’m going to rerun something I posted here a year and a half ago under the title Overturning The Death Penalty.


The death penalty has been overturned twice in this country (that I’m aware of). The first time was the Supreme Court’s decision in Furman v. Georgia in 1972 :

It has been assumed in our decisions that punishment by death is not cruel, unless the manner of execution can be said to be inhuman and barbarous. In re Kemmler. It is also said in our opinions that the proscription of cruel and unusual punishments “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” A like statement was made in Trop v. Dulles, that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions.

It would seem to be incontestable that the death penalty inflicted on one defendant is “unusual” if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.
. . .
The words “cruel and unusual” certainly include penalties [408 U.S. 238, 245] that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is “cruel and unusual” to apply the death penalty – or any other penalty – selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.
. . .
We cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.
. . .
Those who wrote the Eighth Amendment knew what price their forebears had paid for a system based, not on equal justice, but on discrimination. In those days the target was not the blacks or the poor, but the dissenters, those who opposed absolutism in government, who struggled for a parliamentary regime, and who opposed governments’ recurring efforts to foist a particular religion on the people. But the tool of capital punishment was used with vengeance against the opposition and those unpopular with the regime. One cannot read this history without realizing that the desire for equality was reflected in the ban against “cruel and unusual punishments” contained in the Eighth Amendment.
. . .
The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.
. . .
Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on “cruel and unusual” punishments.

And the second time was when Illinois Governor George Ryan passed a death penalty moratorium last year :

Four years ago I was sworn in as the 39th governor of Illinois. That was just four short years ago — that’s when I was a firm believer in the American system of justice and the death penalty. I believed that the ultimate penalty for the taking of a life was administrated in a just and fair manner.

Today — three days before I end my term as governor, I stand before you to explain my frustrations and deep concerns about both the administration and the penalty of death …
. . .
The death penalty has been abolished in 12 states and in none of those states has the homicide rate increased. Now, here’s a good number for you to remember: In Illinois last year, we had about 1,000 murders and only 2 percent were sentenced to death. I want to know, where is the fairness and the equality in that? The death penalty in Illinois is not imposed fairly or uniformly, because of the absence of standards for 102 counties in this state and the state’s attorneys who must decide whether to request a death sentence. Should geography be a factor in determining who gets the death sentence? I don’t think it should. But in Illinois it makes a difference. You are five times more likely to get a death sentence for the first-degree murder in the rural areas of the state than you are here in Cook County. Five times more. Where’s the fairness in that? Where is the fairness in the justice system? Where is the proportionality?

The Most Reverend Desmond Tutu wrote to me this week stating that “to take a life when a life has been lost is revenge. It’s not justice.” He says justice allows for mercy and clemency and compassion. These virtues are not weaknesses.

I never intended to be an activist on this issue, needless to say. But soon after taking office, I watched in surprise and amazement as the freed death row inmate Anthony Porter was released from jail. Anthony Porter was 48 hours away from being wheeled into the execution chamber where the state would kill him.

It would be so antiseptic that most of us wouldn’t have even paused for a second, except that Anthony Porter was innocent. He was innocent for the double murder for which he had been condemned by the state of Illinois to die.

After Mr. Porter’s case there was the report by Chicago Tribune reporters Steve Mills and Ken Armstrong documenting the systemic failures of our capital punishment system. Half of the nearly 300 capital cases in Illinois had been reversed for a new trial or resentencing.
. . .
Thirty-three percent of the death row inmates were represented at trial by an attorney who had later been disbarred or at some point suspended from the practice of law. Of the more than 160 death row inmates, 35 were African-American defendants who had been convicted or condemned to die not by a jury of their peers, but by all-white juries. More than two-thirds of the inmates on death row were African-Americans. Forty-six inmates were convicted on the basis of testimony from jailhouse informants.

I can recall looking at these cases and the information from the Mills/Armstrong series, and I asked myself and my staff: How does that happen? How in God’s name does that happen? In America, how does it happen? I’ve been asking this question for nearly three years, and so far nobody’s answered the question. Even as I stand here today, nobody’s answered the question.

If the arbitrary use of the death penalty was “cruel and unusual” in 1972, how is it any better now? Regardless of whether or not you feel that the death penalty is an appropriate punishment, it seems that the systems isn’t any less flawed now than it was thirty-two years ago.

7 thoughts on “Do Two Wrongs Make A Right?

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  2. I am 100% in favor of the death penalty when it is clear beyond doubt that the offender is guilty, especially in cases of pre-meditated murder by a repeat offender with a history of violence. People like that should be put down like the dogs they are. However, I must stress “clear beyond doubt.” To me that means multiple credible eye-witnesses backed up by incontrovertible forensic evidence and documented history.
    Death is not a cruel sentence, certainly no more cruel than what some of the criminals who deserve it do to their victims. Likewise, I wholeheartedly disagree with Reverend Desmond Tutu – executing a murderer is justice. That it may also be revenge is beside the point.

  3. I am generally against the death penalty for the same reasons. But when I see a case like the one yesterday in Florida I really struggle with what is the right punishment. Joseph Smith was caught on film kidnapping Carlie Brucia; that is a lot of proof. But I don’t think giving Joseph Smith the death penalty is going to curb crimes against children.

  4. Ceres, the death penalty is not and never was meant to act as a deterrent. The argument that it’s use will prevent crimes because people won’t want to be executed (when what we really mean is we want to execute violent murderers) is used in exactly the same way that arguing that reducing speed limits will save lives (when what we really mean is we are trying to conserve gas). We use arguments like that as loftier aims to sanitize our real intentions and make them acceptable to easily-fooled fence-sitters. Execution isn’t about preventing crime, it’s about obtaining justice by killing vile scumbags.
    The man who killed Carlie Brucia is a prime example. He kidnapped, raped, and violently murdered an 11-year-old girl for no reason other than she was an easy target. His act was so filthy, so reprehensible, that his own brother turned him in. Justice would have that man beaten to death for as long as it took him to kill that little girl. Instead, we have to settle for gently putting that murderer to sleep and quietly stopping his heart with a chemical.

  5. I recommend to everyone to see the documentary “Deadline” about the death penalty in general and Governor Ryan’s stay in particular. This to me is not a bright-line issue. There have been 1,000 executions since 1976. There have been 122 exonerations , that is people who were sentenced to die and found completely innoncent of their crimes. Proponents of the death penalty believe that is should be left for the most heinous crimes yet it is imposed on the darkest offenders (41.7% of death row is black and blacks were more likely to receive the death penalty if they murdered a white person than a black person). I am not against the death penalty per se. I am against how the death penalty is imposed.

  6. Justice != revenge.

    Most civilized adults understand that, and can grasp that the primary purpose of the justice system is not to give payback for misdeeds committed.

  7. TO KILL OR NOT TO KILL
    by SCOTT TUROW
    Coming to terms with capital punishment.
    New Yorker:
    Issue of 2003-01-06
    Posted 2002-12-30

    When Joseph Hartzler, a former colleague of mine in the United States attorney’s office in Chicago, was appointed the lead prosecutor in the trial of Timothy McVeigh, the Oklahoma City bomber, he remarked that McVeigh was headed for Hell, no matter what. His job, Hartzler said, was simply to speed up the delivery. That was also the attitude evinced by the prosecutors vying to be first to try the two Beltway sniper suspects. Given the fear and fury the multiple shootings inspired, it wasn’t surprising that polls showed that Americans favored imposing what Attorney General Ashcroft referred to as the “ultimate sanction.” Yet despite the retributive wrath that the public seems quick to visit on particular crimes, or criminals, there has also been, in recent years, growing skepticism about the death-penalty system in general. A significant number of Americans question both the system’s over-all fairness and, given the many cases in which DNA evidence has proved that the wrong person was convicted of a crime, its ability to distinguish the innocent from the guilty.

    Ambivalence about the death penalty is an American tradition.When the Republic was founded, all the states, following English law, imposed capital punishment. But the humanistic impulses that favored democracy led to questions about whether the state should have the right to kill the citizens upon whose consent government was erected. Jefferson was among the earliest advocates of restricting executions. In 1846, Michigan became the first American state to outlaw capital punishment, except in the case of treason, and public opinion has continued to vacillate on the issue. Following the Second World War and the rise and fall of a number of totalitarian governments, Western European nations began abandoning capital punishment, but their example is of limited relevance to us, since our murder rate is roughly four times the rate in Europe. One need only glance at a TV screen to realize that murder remains an American preoccupation, and the concomitant questions of how to deal with it challenge contending strains in our moral thought, pitting Old Testament against New, retribution against forgiveness.

    I was forced to confront my own feelings about the death penalty as one of fourteen members of a commission appointed by Governor George Ryan of Illinois to recommend reforms of the state’s capital-punishment system. In the past twenty-five years, thirteen men who spent time on death row in Illinois have been exonerated, three of them in 1999. Governor Ryan declared a moratorium on executions in January, 2000, and five weeks later announced the formation of our commission. We were a diverse group: two sitting prosecutors; two sitting public defenders; a former Chief Judge of the Federal District Court; a former U.S. senator; three women; four members of racial minorities; prominent Democrats and Republicans. Twelve of us were lawyers, nine with experience as defense attorneys and eleven—including William Martin, who won a capital conviction against the mass murderer Richard Speck, in 1967—with prosecutorial backgrounds. Roberto Ramírez, a Mexican-American immigrant who built a successful janitorial business, knew violent death at first hand. His father was murdered, and his grandfather shot and killed the murderer. Governor Ryan gave us only one instruction. We were to determine what reforms, if any, would make application of the death penalty in Illinois fair, just, and accurate. In March, 2000, during the press conference at which members of the commission were introduced, we were asked who among us opposed capital punishment. Four people raised their hands. I was not one of them.

    For a long time, I referred to myself as a death-penalty agnostic, although in the early seventies, when I was a student, I was reflexively against capital punishment. When I was an assistant U.S. attorney, from 1978 to 1986, there was no federal death penalty. The Supreme Court declared capital-punishment statutes unconstitutional in 1972, and although the Court changed its mind in 1976, the death penalty did not become part of federal law again until 1988. However, Illinois had reinstated capital punishment in the mid-seventies, and occasionally my colleagues became involved in state-court murder prosecutions. In 1984, when my oldest friend in the office, Jeremy Margolis, secured a capital sentence against a two-time murderer named Hector Reuben Sanchez, I congratulated him. I wasn’t sure what I might do as a legislator, but I had come to accept that some people are incorrigibly evil and I knew that I could follow the will of the community in dealing with them, just as I routinely accepted the wisdom of the RICO statute and the mail-fraud and extortion laws it was my job to enforce.

    My first direct encounter with a capital prosecution came in 1991. I was in private practice by then and had published two successful novels, which allowed me to donate much of my time as a lawyer to pro-bono work. One of the cases I was asked to take on was the appeal of Alejandro (Alex) Hernandez, who had been convicted of a notorious kidnapping, rape, and murder. In February, 1983, a ten-year-old girl, Jeanine Nicarico, was abducted from her home in a suburb of Chicago, in DuPage County. Two days later, Jeanine’s corpse, clad only in a nightshirt, was found by hikers in a nearby nature preserve. She had been blindfolded, sexually assaulted several times, and then killed by repeated blows to the head. More than forty law-enforcement officers formed a task force to hunt down the killer, but by early 1984 the case had not been solved, and a heated primary campaign was under way for the job of state’s attorney in DuPage County. A few days before the election, three men—Alex Hernandez, Rolando Cruz, and Stephen Buckley—were indicted.

    The incumbent lost the election anyway, to a local lawyer, Jim Ryan, who took the case to trial in January, 1985. (Ryan later became the attorney general of Illinois, a position he is about to relinquish.) The jury deadlocked on Buckley, but both Hernandez and Cruz were convicted and sentenced to death. There was no physical evidence against either of them—no blood, semen, fingerprints, or other forensic proof. The state’s case consisted solely of each defendant’s statements, a contradictory maze of mutual accusations and demonstrable falsehoods. By the time the case reached me, seven years after the men were arrested, the charges against Buckley had been dropped and the Illinois Supreme Court had reversed the original convictions of Hernandez and Cruz and ordered separate retrials. In 1990, Cruz was condemned to death for a second time. Hernandez’s second trial ended with a hung jury, but at a third trial, in 1991, he was convicted and sentenced to eighty years in prison.

    Hernandez’s attorneys made a straightforward pitch to me: their client, who has an I.Q. of about 75, was innocent. I didn’t believe it. And, even if it was true, I couldn’t envision persuading a court to overturn the conviction a second time. Illinois elects its state-court judges, and this was a celebrated case: “the case that broke Chicago’s heart” was how it was sometimes referred to in the press. Nevertheless, I read the brief that Lawrence Marshall, a professor of law at Northwestern University, had filed in behalf of Cruz, and studied the transcripts of Hernandez’s trials. After that, there was no question in my mind. Alex Hernandez was innocent.

    In June, 1985, another little girl, Melissa Ackerman, had been abducted and murdered in northern Illinois. Like Jeanine Nicarico, she was kidnapped in broad daylight, sexually violated, and killed in a wooded area. A man named Brian Dugan was arrested for the Ackerman murder, and, in the course of negotiating for a life sentence, he admitted that he had raped and killed Jeanine Nicarico as well.

    The Illinois State Police investigated Dugan’s admissions about the Nicarico murder and accumulated a mass of corroborating detail. Dugan was not at work the day the girl disappeared, and a church secretary, working a few blocks from the Nicarico home, recalled a conversation with him. A tire print found where Jeanine’s body was deposited matched the tires that had been on Dugan’s car. He knew many details about the crime that had never been publicly revealed, including information about the interior of the Nicarico home and the blindfold applied to Jeanine.

    Nevertheless, the DuPage County prosecutors refused to accept Dugan’s confession. Even after Cruz’s and Hernandez’s second convictions were overturned in the separate appeals that Larry Marshall and I argued, and notwithstanding a series of DNA tests that excluded Cruz and Hernandez as Jeanine Nicarico’s sexual assailant, while pointing directly at Dugan, the prosecutors pursued the cases. It was only after Cruz was acquitted in a third trial, late in 1995, that both men were finally freed.

    Capital punishment is supposed to be applied only to the most heinous crimes, but it is precisely those cases which, because of the strong feelings of repugnance they evoke, most thoroughly challenge the detached judgment of all participants in the legal process—police, prosecutors, judges, and juries. The innocent are often particularly at risk. Most defendants charged with capital crimes avoid the death penalty by reaching a plea bargain, a process that someone who is innocent is naturally reluctant to submit to. Innocent people tend to insist on a trial, and when they get it the jury does not include anyone who will refuse on principle to impose a death sentence. Such people are barred from juries in capital cases by a Supreme Court decision, Witherspoon v. Illinois, that, some scholars believe, makes the juries more conviction-prone. In Alex Hernandez’s third trial, the evidence against him was so scant that the DuPage County state’s attorney’s office sought an outside legal opinion to determine whether it could get the case over the bare legal threshold required to go to a jury. Hernandez was convicted anyway, although the trial judge refused to impose a death sentence, because of the paucity of evidence.

    A frightened public demanding results in the aftermath of a ghastly crime also places predictable pressures on prosecutors and police, which can sometimes lead to questionable conduct. Confronted with the evidence of Brian Dugan’s guilt, the prosecutors in Hernandez’s second trial had tried to suggest that he and Dugan could have committed the crime together, even though there was no proof that the men knew each other. Throughout the state’s case, the prosecutors emphasized a pair of shoe prints found behind the Nicarico home, where a would-be burglar—i.e., Hernandez—could have looked through a window. Following testimony that Hernandez’s shoe size was about 7, a police expert testified that the shoe prints were “about size 6.” Until he was directly cross-examined, the expert did not mention that he was referring to a woman’s size 6, or that he had identified the tread on one of the prints as coming from a woman’s shoe, a fact he’d shared with the prosecutor, who somehow failed to inform the defense.

    This kind of overreaching by the prosecution occurred frequently. A special grand jury was convened after Cruz and Hernandez were freed. Three former prosecutors and four DuPage County police officers were indicted on various counts, including conspiring to obstruct justice. They were tried and—as is often the case when lawenforcement officers are charged with overzealous execution of their duties—acquitted, although the county subsequently reached a multimillion-dollar settlement in a civil suit brought by Hernandez, Cruz, and their onetime co-defendant, Stephen Buckley. Despite assertions by DuPage County prosecutors that Jeanine Nicarico’s killer deserves to die, Brian Dugan has never been charged with her murder, although Joseph Birkett, the state’s attorney for the county, admitted in November that new DNA tests prove Dugan’s role with “scientific certainty.” In the past, Birkett had celebrated the acquittal of his colleagues on charges of conspiring to obstruct justice and had attacked the special prosecutor who’d brought the charges. He continues to make public statements suggesting that Cruz and Hernandez might be guilty. An ultimately unsuccessful attempt was made to demote the judge who acquitted Cruz, and last year, when the judge resigned from the bench, he had to pay for his own going-away party. In the meantime, the prosecutor who tried to incriminate Alex Hernandez with the print from a woman’s shoe is now Chief Judge in DuPage County.

    If these are the perils of the system, why have a death penalty? Many people would answer that executions deter others from committing murder, but I found no evidence that convinced me. For example, Illinois, which has a death penalty, has a higher murder rate than the neighboring state of Michigan, which has no capital punishment but roughly the same racial makeup, income levels, and population distribution between cities and rural areas. In fact, in the last decade the murder rate in states without the death penalty has remained consistently lower than in the states that have had executions. Surveys of criminologists and police chiefs show that substantial majorities of both groups doubt that the death penalty significantly reduces the number of homicides.

    Another argument—that the death penalty saves money, because it avoids the expense of lifetime incarceration—doesn’t hold up, either, when you factor in the staggering costs of capital litigation. In the United States in 2000, the average period between conviction and execution was eleven and a half years, with lawyers and courts spewing out briefs and decisions all that time.

    The case for capital punishment that seemed strongest to me came from the people who claim the most direct benefit from an execution: the families and friends of murder victims. The commission heard from survivors in public hearings and in private sessions, and I learned a great deal in these meetings. Death brought on by a random element like disease or a tornado is easier for survivors to accept than the loss of a loved one through the conscious will of another human being. It was not clear to me at first what survivors hoped to gain from the death of a murderer, but certain themes emerged. Dora Larson has been a victims’-rights advocate for nearly twenty years. In 1979, her ten-year-old daughter was kidnapped, raped, and strangled by a fifteen-year-old boy who then buried her in a grave he had dug three days earlier. “Our biggest fear is that someday our child’s or loved one’s killer will be released,” she told the commission. “We want these people off the streets so that others might be safe.” A sentence of life without parole should guarantee that the defendant would never repeat his crime, but Mrs. Larson pointed out several ways in which a life sentence poses a far greater emotional burden than an execution. Because her daughter’s killer was under eighteen, he was ineligible for the death penalty. “When I was told life, I thought it was life,” Larson said to us. “Then I get a letter saying our killer has petitioned the governor for release.”

    Victims’ families talk a lot about “closure,” an end to the legal process that will allow them to come to final terms with their grief. Mrs. Larson and others told us that families frequently find the execution of their lost loved one’s killer a meaningful emotional landmark. A number of family members of the victims of the Oklahoma City bombing expressed those sentiments after they watched Timothy McVeigh die. The justice the survivors seek is the one embedded in the concept of restitution: the criminal ought not to end up better off than his victim. But the national victims’-rights movement is so powerful that victims have become virtual proprietors of the capital system, leading to troubling inconsistencies. For instance, DuPage County has long supported the Nicarico family’s adamant wish for a death sentence for Jeanine’s killer, but the virtually identical murder of Melissa Ackerman resulted in a life term with no possibility of parole for Brian Dugan, because Melissa’s parents preferred a quick resolution. It makes no more sense to let victims rule the capital process than it would to decide what will be built on the World Trade Center site solely according to the desires of the survivors of those killed on September 11th. In a democracy, no minority, even people whose losses scour our hearts, should be entitled to speak for us all.

    Governor Ryan’s commission didn’t spend much time on philosophical debates, but those who favored capital punishment tended to make one argument again and again: sometimes a crime is so horrible that killing its perpetrator is the only just response. I’ve always thought death-penalty proponents have a point when they say that it denigrates the profound indignity of murder to punish it in the same fashion as other crimes. These days, you can get life in California for your third felony, even if it’s swiping a few videotapes from a Kmart. Does it vindicate our shared values if the most immoral act imaginable, the unjustified killing of another human being, is treated the same way? The issue is not revenge or retribution, exactly, so much as moral order. When everything is said and done, I suspect that this notion of moral proportion—ultimate punishment for ultimate evil—is the reason most Americans continue to support capital punishment.

    This places an enormous burden of precision on the justice system, however. If we execute the innocent or the undeserving, then we have undermined, not reinforced, our sense of moral proportion. The prosecution of Alex Hernandez demonstrated to me the risks to the innocent. A case I took on later gave me experience with the problematic nature of who among the guilty gets selected for execution. One afternoon, I had assembled a group of young lawyers in my office to discuss pro-bono death-penalty work when, by pure coincidence, I found a letter in my in-box from a man, Christopher Thomas, who said he’d been convicted of first-degree murder and sentenced to death, even though none of the four eyewitnesses to the crime who testified had identified him. We investigated and found that the letter was accurate—in a sense. None of the eyewitnesses had identified Thomas. However, he had two accomplices, both of whom had turned against him, and Thomas had subsequently confessed three different times, the last occasion on videotape.

    According to the various accounts, Chris Thomas—who is black, and was twenty-one at the time of the crime—and his two pals had run out of gas behind a strip mall in Waukegan, Illinois. They were all stoned, and they hatched a plan to roll somebody for money. Rafael Gasgonia, a thirty-nine-year-old Filipino immigrant, was unfortunate enough to step out for a smoke behind the photo shop where he worked as a delivery driver. The three men accosted him. Thomas pointed a gun at his head, and when a struggle broke out Thomas fired once, killing Gasgonia instantly.

    I was drawn to Chris Thomas’s case because I couldn’t understand how a parking-lot stickup gone bad had ended in a death sentence. But after we studied the record, it seemed clear to us that Thomas, like a lot of other defendants, was on death row essentially for the crime of having the wrong lawyers. He had been defended by two attorneys under contract to the Lake County public defender’s office. They were each paid thirty thousand dollars a year to defend a hundred and three cases, about three hundred dollars per case. By contract, one assignment had to be a capital case. The fiscal year was nearly over, and neither of the contract lawyers had done his capital work, so they were assigned to Thomas’s case together. One of them had no experience of any kind in death-penalty cases; the other had once been standby counsel for a man who was defending himself.

    In court, we characterized Thomas’s defense as all you would expect for six hundred dollars. His lawyers seemed to regard the case as a clear loser at trial and, given the impulsive nature of the crime, virtually certain to result in a sentence other than death. They did a scanty investigation of Thomas’s background for the sentencing hearing, an effort that was hindered by the fact that the chief mitigation witness, Thomas’s aunt, who was the closest thing to an enduring parental figure in his life, had herself been prosecuted on a drug charge by one of the lawyers during his years as an assistant state’s attorney. As a result, Thomas’s aunt distrusted the lawyers, and, under her influence, Chris soon did as well. He felt screwed around already, since he had confessed to the crime and expressed remorse, and had been rewarded by being put on trial for his life. At the sentencing hearing, Thomas took the stand and denied that he was guilty, notwithstanding his many prior confessions. The presiding judge, who had never before sentenced anybody to death, gave Thomas the death penalty.

    In Illinois, some of this could not happen now. The Capital Litigation Trust Fund has been established to pay for an adequate defense, and the state Supreme Court created a Capital Litigation trial bar, which requires lawyers who represent someone facing the death penalty to be experienced in capital cases. Nonetheless, looking over the opinions in the roughly two hundred and seventy capital appeals in Illinois, I was struck again and again by the wide variation in the seriousness of the crimes. There were many monstrous offenses, but also a number of garden-variety murders. And the feeling that the system is an unguided ship is only heightened when one examines the first-degree homicides that have resulted in sentences other than death. Thomas was on death row, but others from Lake County—a man who had knocked a friend unconscious and placed him on the tracks in front of an oncoming train, for instance, and a mother who had fed acid to her baby—had escaped it.

    The inevitable disparities between individual cases are often enhanced by social factors, like race, which plays a role that is not always well understood. The commission authorized a study that showed that in Illinois, you are more likely to receive the death penalty if you are white—two and a half times as likely. One possible reason is that in a racially divided society whites tend to associate with, and thus to murder, other whites. And choosing a white victim makes a murderer three and a half times as likely to be punished by a death sentence as if he’d killed someone who was black. (At least in Illinois, blacks and whites who murdered whites were given a death sentence at essentially the same rate, which has not always been true in other places.)

    Geography also matters in Illinois. You are five times as likely to get a death sentence for first-degree murder in a rural area as you are in Cook County, which includes Chicago. Gender seems to count, too. Capital punishment for slaying a woman is imposed at three and half times the rate for murdering a man. When you add in all the uncontrollable variables—who the prosecutor and the defense lawyer are, the nature of the judge and the jury, the characteristics of the victim, the place of the crime—the results reflect anything but a clearly proportionate morality.

    And execution, of course, ends any chance that a defendant will acknowledge the claims of the morality we seek to enforce. More than three years after my colleagues and I read Chris Thomas’s letter, a court in Lake County resentenced him to a hundred years in prison, meaning that, with good behavior, he could be released when he is seventy-one. He wept in court and apologized to the Gasgonia family for what he had done.

    Supporters of capital punishment in Illinois, particularly those in law enforcement, often use Henry Brisbon as their trump card. Get rid of the death penalty, they say, and what do you do about the likes of Henry?

    On the night of June 3, 1973, Brisbon and three “rap partners” (his term) forced several cars off I-57, an interstate highway south of Chicago. Brisbon made a woman in one of the cars disrobe, and then he discharged a shotgun in her vagina. He compelled a young couple to lie down in a field together, instructed them to “make this your last kiss,” and shot both of them in the back. His role in these crimes was uncovered only years later, when he confessed to an inmate working as a law librarian in the penitentiary where he was serving a stretch for rape and armed robbery. Because the I-57 killings occurred shortly after the Supreme Court declared capital punishment unconstitutional, Brisbon was not eligible for the death penalty. He was given a sentence of one thousand to three thousand years in prison, probably the longest term ever imposed in Illinois.

    In October, 1978, eleven months after the sentencing, Brisbon murdered again. He placed a homemade knife to the throat of a guard to subdue him, then went with several inmates to the cell of another prisoner and stabbed him repeatedly. By the time Brisbon was tried again, in early 1982, Illinois had restored capital punishment, and he was sentenced to death. The evidence in his sentencing hearings included proof of yet another murder Brisbon had allegedly committed prior to his imprisonment, when he placed a shotgun against the face of a store clerk and blew him away. He had accumulated more than two hundred disciplinary violations while he was incarcerated, and had played a major role in the violent takeover of Stateville prison, in September, 1979. Predictably, the death sentence did not markedly improve Brisbon’s conduct. In the years since he was first condemned, he has been accused of a number of serious assaults on guards, including a stabbing, and he severely injured another inmate when he threw a thirty-pound weight against his skull.

    Brisbon is now held at the Tamms Correctional Center, a “super-max” facility that houses more than two hundred and fifty men culled from an Illinois prison population of almost forty-five thousand. Generally speaking, Tamms inmates are either gang leaders or men with intractable discipline problems. I wanted to visit Tamms, hoping that it would tell me whether it is possible to incapacitate people like Brisbon, who are clearly prone to murder again if given the opportunity.

    Tamms is situated near the southernmost point of Illinois, farther south than parts of Kentucky. The Mississippi, a wide body of cloacal brown, floods the nearby lowlands, creating a region of green marshes along orange sandstone bluffs. Tamms stands at the foot of one of those stone outcroppings, on a vast, savannalike grassland. The terms of confinement are grim. Inmates are permitted no physical contact with other human beings. Each prisoner is held twenty-three hours a day inside a seven-by-twelve-foot block of preformed concrete that has a single window to the outside, roughly forty-two by eighteen inches, segmented by a lateral steel bar. The cell contains a stainless-steel fixture housing a toilet bowl and a sink and a concrete pallet over which a foam mattress is laid. The front of the cell has a panel of punch-plate steel pierced by a network of half-inch circles, almost like bullet holes, that permit conversation but prevent the kind of mayhem possible when prisoners can get their hands through the bars. Once a day, an inmate’s door is opened by remote control, and he walks down a corridor of cells to an outdoor area, twelve by twenty-eight feet, surrounded by thirteen-foot-high concrete walls, with a roof over half of it for shelter from the elements. For an hour, a prisoner may exercise or just breathe fresh air. Showers are permitted on a similar remote-control basis, for twenty minutes, several times a week.

    In part because the facility is not full, incarceration in Tamms costs about two and a half times as much as the approximately twenty thousand dollars a year that is ordinarily spent on an inmate in Illinois, but the facility has a remarkable record of success in reducing disciplinary infractions and assaults. George Welborn, a tall, lean man with a full head of graying hair, a mustache, and dark, thoughtful eyes, was the warden of Tamms when I visited. I talked to him for much of the day, and toward the end asked if he really believed that he could keep Brisbon from killing again. Welborn, who speaks with a southern-Illinois twang, was an assistant warden at Stateville when Brisbon led the inmate uprising there, and he testified against him in the proceedings that resulted in his death sentence. He took his time with my question, but answered, guardedly, “Yes.”

    I was permitted to meet Brisbon, speaking with him through the punch-plate from the corridor in front of his cell. He is a solidly built African-American man of medium height, somewhat bookish-looking, with heavy glasses. He seemed quick-witted and amiable, and greatly amused by himself. He had read all about the commission, and he displayed a letter in which, many years ago, he had suggested a moratorium on executions. He had some savvy predictions about the political impediments to many potential reforms of the capital system.

    “Henry is a special case,” Welborn said to me later, when we spoke on the phone. “I would be foolish to say I can guarantee he won’t kill anyone again. I can imagine situations, God forbid . . . But the chances are minimized here.” Still, Welborn emphasized, with Brisbon there would never be any guarantees.

    I had another reason for wanting to visit Tamms. Illinois’s execution chamber is now situated there. Unused for more than two years because of Governor Ryan’s moratorium, it remains a solemn spot, with the sterile feel of an operating theatre in a hospital. The execution gurney, where the lethal injection is administered, is covered by a crisp sheet and might even be mistaken for an examining table except for the arm paddles that extend from it and the crisscrossing leather restraints that strike a particularly odd note in the world of Tamms, where virtually everything else is of steel, concrete, or plastic.

    Several years ago, I attended a luncheon where Sister Helen Prejean, the author of “Dead Man Walking,” delivered the keynote address. The daughter of a prominent lawyer, Sister Helen is a powerful orator. Inveighing against the death penalty, she looked at the audience and repeated one of her favorite arguments: “If you really believe in the death penalty, ask yourself if you’re willing to inject the fatal poison.” I thought of Sister Helen when I stood in the death chamber at Tamms. I felt the horror of the coolly contemplated ending of the life of another human being in the name of the law. But if John Wayne Gacy, the mass murderer who tortured and killed thirty-three young men, had been on that gurney, I could, as Sister Helen would have it, have pushed the button. I don’t think the death penalty is the product of an alien morality, and I respect the right of a majority of my fellow-citizens to decide that it ought to be imposed on the most horrific crimes.

    The members of the commission knew that capital punishment would not be abolished in Illinois anytime soon. Accordingly, our formal recommendations, many of which were made unanimously, ran to matters of reform. Principal among them was lowering the risks of convicting the innocent. Several of the thirteen men who had been on death row and were then exonerated had made dubious confessions, which appeared to have been coerced or even invented. We recommended that all interrogations of suspects in capital cases be videotaped. We also proposed altering lineup procedures, since eyewitness testimony has proved to be far less trustworthy than I ever thought while I was a prosecutor. We urged that courts provide pretrial hearings to determine the reliability of jailhouse snitches, who have surfaced often in Illinois’s capital cases, testifying to supposed confessions in exchange for lightened sentences.

    To reduce the seeming randomness with which some defendants appear to end up on death row, we proposed that the twenty eligibility criteria for capital punishment in Illinois be trimmed to five: multiple murders, murder of a police officer or firefighter, murder in a prison, murder aimed at hindering the justice system, and murder involving torture. Murders committed in the course of another felony, the eligibility factor used in Christopher Thomas’s case, would be eliminated. And we urged the creation of a statewide oversight body to attempt to bring more uniformity to the selection of death-penalty cases.

    To insure that the capital system is something other than an endless maze for survivors, we recommended guaranteed sentences of life with no parole when eligible cases don’t result in the death penalty. And we also outlined reforms aimed at expediting the post-conviction review and clemency processes.

    Yet our proposals sidestepped the ultimate question. One fall day, Paul Simon, the former U.S. senator who was one of the commission’s chairs and is a longtime foe of the death penalty, forced us to vote on whether Illinois should have a death penalty at all. The vote was an expression of sentiment, not a formal recommendation. What was our best advice to our fellow-citizens, political realities aside? By a narrow majority, we agreed that capital punishment should not be an option.

    I admit that I am still attracted to a death penalty that would be applied to horrendous crimes, or that would provide absolute certainty that the likes of Henry Brisbon would never again satisfy their cruel appetites. But if death is available as a punishment, the furious heat of grief and rage that these crimes inspire will inevitably short-circuit any capital system. Now and then, we will execute someone who is innocent, while the fundamental equality of each survivor’s loss creates an inevitable emotional momentum to expand the categories for death-penalty eligibility. Like many others who have wrestled with capital punishment, I have changed my mind often, driven back and forth by the errors each position seems to invite. Yet after two years of deliberation, I seem to have finally come to rest. When Paul Simon asked whether Illinois should have a death penalty, I voted no.