Interviews December 2003

Life or Death Decision

In his latest book, Scott Turow talks about how he came to believe that the country's experiment with capital punishment has "failed miserably"
Ultimate Punishment

Ultimate Punishment
[Click the title
to buy this book] by Scott Turow
Farrar, Straus and Giroux
164 pages, $18

Scott Turow has long juggled two careers—that of a novelist and that of a lawyer. He wrote much of his first and best known legal thriller, Presumed Innocent, on the commuter train to and from work during the eight years he spent as an Assistant United States Attorney in Chicago, and he has churned out another blockbuster every third year since joining the firm of Sonnenschein Nath and Rosenthal in 1986. But in his most recent book he has switched to a different genre: nonfiction.

Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty is Turow's highly personal examination of capital punishment, a subject he has had close experience with in both his careers. It is his first nonfiction work in twenty-six years (his only other, One L, is a still-in-print account of his first year at Harvard Law School, which he entered in 1975 after several years of studying and teaching creative writing at Stanford). Turow's most recent novel, last year's Reversible Errors, revolved around a bogus death sentencing. But he consciously avoided making his novel an anti-death-penalty polemic.

He did, however, feel that there was much he needed to say on the topic. For two years, beginning in March 2000, Turow served as one of the fourteen members of Illinois Governor George Ryan's special commission on the death penalty. The commission was charged with reexamining the state's death-penalty statutes after thirteen death sentences had been overturned on appeal and the governor had declared a moratorium on executions. Ryan would later, as he was leaving office in January 2003, commute the death sentences of all 167 prisoners on the state's death row.

Turow brought more than his name to the commission. His pro bono work at Sonnenschein had included getting two death sentences set aside, most notably in the high-profile Nicarico case in Chicago's western suburbs. In that case, Turow's client, Alejandro Hernandez, and another man, Rolando Cruz, were sentenced to death for the kidnapping, rape, and murder of a ten-year-old named Jeanine Nicarico. When another man later confessed to the killing, DuPage county prosecutors for years stubbornly refused to accept the man's statement, even after DNA evidence began pointing to him as the killer and excluding both Cruz and Hernandez. Both Hernandez and Cruz were eventually exonerated, and several former prosecutors and DuPage County police officers were indicted on a number of charges, including conspiracy to obstruct justice.

But despite such in-depth exposure to the issue, Turow still thought of himself as a "death penalty agnostic" when he joined Governor Ryan's commission. "Every time I thought I was prepared to stake out a position," he explains in Ultimate Punishment, "something would drive me back in the other direction." But by the time the commission reported its conclusions in April 2002, Turow had finally reached a personal verdict on the death penalty.

"I appear to have finally come to rest on the issue," Turow writes in the concluding lines of Ultimate Punishment. "Today, I would still do as I did when [former Illinois Senator] Paul Simon asked whether Illinois should retain capital punishment. I voted no."

I spoke with Turow by phone on November 18.

—Bill Beuttler

Scott Turow
Scott Turow   

Your new book, Ultimate Punishment, recounts your involvement with the two-year commission on capital punishment formed by Illinois governor George Ryan. Ryan, of course, is the governor who made national headlines in 2000 by declaring a moratorium on executions in Illinois, and later by commuting the death sentences of all 167 prisoners on Illinois' death row as he was leaving office in January of this year. Could you talk about Ryan's motivations for these actions? Why was he doing all this?

First, just in the interest of complete disclosure, let me explain something before I answer your question, which is that since the time that Ultimate Punishment was written, Governor Ryan's personal lawyer has joined our firm. So Ryan is, in theory, my client. But he has waived any restrictions on my remarks that would result from our relationship, and I don't have any role in representing him.

That said, I thought very highly of the way the governor conducted himself on this particular issue. I think his motive was simply to do the right thing. My sense is that he was deeply troubled by the death penalty, and by the fact that he was consistently unable to rationalize anything in the system. As soon as he thought that there was a particular principle that was supposed to be guiding the application of the death penalty, he would find that it was observed in the breach. He did sign one death warrant, and I think for him it was just a very troubling experience. He was inclined after that to try to see if the system could be improved. But in the absence of any legislative action, he just felt that he needed to clear death row and let the state start again—hopefully with a better capital system. Indeed, that was what the people of Illinois wanted. But I never really saw any evidence that he was playing politics with this. I know—and I know this personally—that he was advised that if there were any political considerations with regard to the commutations that they all ran against his doing this. And he did it anyway, because, as he told his staff, he would not be in the position of playing God.

I would add one other factor I'm aware of that received virtually no public attention, which is that he spent a lot of time with his minister. He really doesn't believe that his private religious beliefs ought to be a matter of public discussion, nor does he try to justify his public decisions on the basis of private beliefs. But I'm sure that that had a role there as well.

Could he have risked the commutations if he weren't already planning on leaving office?

Well, you know, I think virtually everything he did on the death penalty hastened the day that he was going to leave office. But I don't want to pretend that this was his principal problem. It wasn't. His principal problem was a long-running corruption investigation stemming back to his days in the secretary of state's office. But his actions on the death penalty—along with a couple of other issues—cost him the support of the right wing of his party. He's a Republican. Obviously, conservative Republicans didn't agree with what he did.

David Protess and his Northwestern University journalism students helped prove the innocence of several of the thirteen prisoners whose death sentences were overturned early on, leading Ryan to put together his commission on capital punishment. Why did it take a bunch of j-school students to demonstrate that this was such a widespread problem?

I do not want to take anything away from David Protess and his students, who did a magnificent job, a courageous job, and a diligent job. They were of course aided by a very experienced private investigator named Paul Ciolino, and Paul did a lot of the heavy lifting. Furthermore, when I went back in the course of writing Ultimate Punishment to review the record in the Anthony Porter case, where the Northwestern journalism students were of particular effect, I found that Porter's lawyers had been suggesting for years that this other man, Alstory Simon, was guilty. What the journalism students did was take that lead, as it were, and actually nail it down. At the end of the day, it was Ciolino who got Alstory Simon on tape admitting that he had committed these murders. I do think the role of the students and of Paul Ciolino is instructive. Clearly they were able to do something that the lawyers just didn't have the time to do, which was to literally track down Alstory Simon.

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