Ultimate Punishment (5 page)

Yet capital punishment defines far too much about our society and us as its citizens for us to condemn defendants to death solely for the sake of victims whose loss will never be fully erased. In a democracy, no minority, even those whose tragedies scour our hearts, should be empowered to speak for us all. Allowing survivors to rule the death penalty process makes no more sense than it would to allow only the families of the dead in the World Trade Center attack to determine what will be rebuilt on the site. At the end of the day, if we are to subscribe to the death penalty, it must benefit the rest of us, as well.

D
URING THE THIRD PRESIDENTIAL DEBATE
in 2000, Jim Lehrer asked both candidates whether they believed the death penalty was a deterrent.

“I do,” George W. Bush answered, without disagreement from Al Gore. “It's the only reason to be for it.”

Mr. Bush, so far as I can tell, was wrong on both scores. There are a number of compelling rationales for capital punishment. And deterrence, upon examination, doesn't appear to be one of them.

When I started my Commission work, I felt that if it could be established that a death sentence, as opposed to life imprisonment, actually deters other people from committing murders, it would have to weigh heavily in any candid assessment of the subject. As a result, I became an unbearable noodge to the Commission's gifted research director, Jean Templeton, who is both a lawyer and a sociologist by training, as I sought her assistance in wading through the learning in this area.

At one point, I even persuaded Jean to undertake a very informal statistical cross-comparison between Illinois and surrounding states. We ended up measuring Illinois against Michigan, and Missouri against Wisconsin, death penalty states versus non-death penalty states, pairs that had similar urban density, racial makeup, and income levels. The murder rates were higher in the death penalty jurisdictions. Indeed, Texas, which has performed more than a third of the executions in the United States since 1976, has a murder rate well above the national average. On the other hand, in the last decade, not only has the consolidated murder rate in states without the death penalty remained consistently lower than in the states that have had executions but the gap has grown wider. As a result, some sociologists have suggested that executions actually inspire murder, a so-called brutalization effect, although proof of this point is as generally unavailing as that regarding deterrence, for many of the same reasons.

Statistical cross-comparisons between states are inevitably subject to dispute. For example, many of the states that don't have the death penalty didn't have high murder rates to start; thus when murder rates drop, as they have since 1993, there might be a natural tendency for rates in the low states to drop faster. And many statistics can be argued both ways. New York reenacted its death penalty in September 1995, after the number of murders in the state had already gone into steep decline. On the other hand, New York's rates have remained low versus other jurisdictions. Is this owing to the death penalty? Proponents usually find the clearest deterrent effect from executions, and there's yet to be one in New York.

Admittedly, you can go dizzy trying to make sense of the numbers and variables, but rigorous study is still not on the side of deterrence. For example, William Bailey and Ruth Peterson, scholars who had yet to close the book on deterrence, nonetheless conceded in 1994: “Deterrence and capital punishment studies have yielded a fairly consistent pattern of non-deterrence.” In 1996, Michael Radelet and Ronald Akers published a study in which they asked acknowledged experts—sixty-seven of the current and former presidents of three professional criminology organizations—whether the existing research supported a deterrence justification for capital punishment, without regard to their personal beliefs. Eighty percent said it did not. A 1995 poll by Peter D. Hart Research Associates of 386 police chiefs across the nation found that although the vast majority of them supported the death penalty for philosophical reasons, 67 percent felt it was inaccurate to say that the death penalty significantly reduces the number of homicides.

The principal academic support for deterrence has come from free-market economists, who believe that all social choices are the work of rational decision-makers responding to incentives. The economists, accordingly, have a professional interest in proving that the incrementally more severe punishment represented by the death penalty functions to prevent murder. Led by the pioneering work of Isaac Ehrlich in the mid-1970s, these scholars have developed formulas for regression analyses the length of New Jersey, quantifying every conceivable variable. The Nixon administration relied on Ehrlich's results in successfully asking the U.S. Supreme Court to reauthorize capital punishment in 1976. Yet Ehrlich and his followers have been stingingly criticized for methodological and conceptual shortcomings by other scholars, and more recent studies haven't seemed to answer objections. A 2001 paper found a deterrent effect, but the formulas employed also showed that murders are more prevalent in rural areas than in cities, a result that flies in the face of experience.

Nor does the econometric framework fully address fundamental objections to the psychological model being employed. My own impression, based on experience but little social science, is that murder is not a crime committed by those closely attuned to the real-world effects of their behavior. It's characteristic of the criminal offenders I've represented over the years, especially the young and the poor, that many seem unable even to conceive of the future. Instead, killers appear to me to act out a range of narcissistic and infantile impulses—rage, perverted self-loathing, or a grandiose conviction they'll never be caught—in which consequences have no role. Defenders of Ehrlich and his followers adhere to the numbers. If the data bear them out, they contend—for example, by showing a decline in murders in the wake of executions—their assumptions must be correct.

At the end of the day, the best I could say was this: If the death penalty is a deterrent, that fact is not visible to the naked eye. When you are asking citizens to capitulate to their government's right to kill them, you'd better be able to show them something they can understand in their own terms. Econometric models and regression analyses cannot possibly contribute much to the debate.

There is, of course, another economic argument made in behalf of the death penalty: it saves public funds, because the state does not have to provide lifetime support to an incarcerated killer. But in this, like so many other things, lawyers have a huge impact on costs.

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. Public funds pay for almost all of this, since capital offenses are most often committed by the poor whose defenses are usually maintained at the cost of the state. There is a lot to pay for. Two lawyers at trial, one on appeal, another for the post-conviction proceedings, another for the
habeas
. And there must be prosecutors to oppose them, cops and other investigators to put the case in shape for trial, judges to hear the matter, probation officers, mitigation experts, usually a couple of shrinks, court reporters, and transcripts. And none of this considers the costs of incarceration while the convicted defendant is awaiting execution. Those on death row in Illinois and a number of other states are most often held in single cells, since a man with nothing to lose doesn't make an especially good roommate when you aggravate him. Given all those costs, researchers seem to agree that imposing the death penalty is more expensive than leaving a killer alive. A new study published in 2003, which was conducted by the gubernatorial commission in Indiana, concluded that in present values, the costs in death penalty cases exceed the total price of life without parole by more than a third.

Yet cost, I decided ultimately, is basically a red herring. Certainly cost savings don't justify capital punishment. But they do not provide a compelling argument against it, either, in most states. Capital prosecutions are relatively rare. There have been roughly ten to fifteen new death sentences in Illinois every year. Even if we imagine that the costs in those cases exceed those in a non-capital case by a million or even two million dollars, the most grandiose number used by death penalty opponents, the amount saved by abolition is small in terms of a $52.5 billion state budget. The money spent on the death penalty may have high symbolic value, but curtailing that expenditure is certainly not enough to give us a tax cut or better schools.

After two years of reading studies, I decided I wasn't going to find any definitive answers to the merits—or failings—of the death penalty in the realm of social science.

O
N THE COMMISSION
, we spent little time in philosophical debates. We were warm with one another and our discussions wandered at times, but we were busy people gathered for a serious purpose and we had no illusions we could change each other's minds. Yet to the extent that incidental exchanges occasionally got to the heart of the issue, those who favored capital punishment (and that included some of us who, at other moments, were against it, too) tended to make one argument again and again: Sometimes a crime is so horrible that killing its perpetrator is the only correct response. When everything is said and done, I suspect that the argument for what I refer to as “moral proportion” remains the principal reason why more Americans continue to support capital punishment rather than oppose it.

For me, thinking about capital punishment has always presented the moral equivalent of Chinese handcuffs. The more insistent one is about the profound spiritual horror of the state taking a life, any life, the graver the crime becomes that occasions the punishment. Murder is a violation of another person's humanity so absolute that it is literally incomparable. Indeed, our fixation on murder in novels and film suggests our continuing inability to come to grips with it, even imaginatively.

As I've noted, the U.S. Supreme Court's lexicon, in explaining the unique procedural environment for capital cases, is that “death is different.” But murder is different, too. And for this reason 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 videos from Kmart. Does it vindicate our shared values if the most immoral act imaginable, killing another human being without any justification, is treated the same way? For ultimate evil must there not be ultimate punishment? The issue is not revenge or retribution exactly, so much as moral order.

The death penalty in this context maintains its hold on the American conscience because of its intensely symbolic nature. Values count enormously in our lives. But it is essential to recognize that our adherence to the death penalty arises not because it provides proven tangible benefits like deterrence but rather from our belief that capital punishment makes an unequivocal moral statement.

That belief, in turn, identifies the challenge. The argument for moral proportion places an enormous burden of precision on the justice system. Every execution must be just. If we execute the innocent or the undeserving, then we have undermined, not vindicated, our sense of moral proportion and the clear message capital punishment is meant to send. Accordingly, the system has to be unfailingly accurate; it must operate with a fine-tuned sense of what ultimate evil is, and it must identify unerringly who has committed it.

I arrived on the Commission with personal experience in how poor the capital system's aim sometimes is in hitting those targets, not only in Alex Hernandez's case, but also in that of Christopher Thomas. I began representing Chris in 1996, not long after my role in the Hernandez matter was fully concluded. The story of the lawyer-author who, along with many others, had labored without charge to help free Hernandez had been popular with the press and even more so along Illinois' death row, where literally dozens of the inmates wrote me proposing I work the same magic for them. To be frank, I wasn't sure I wanted to shoulder that kind of burden again. I barely slept the week before I argued Hernandez's appeal, even though it was inconceivable that his conviction was not going to be set aside. (As it turned out, the Appellate Court's first question to the prosecution was, “Why has the state not confessed error in this case?” I.e., why can't you guys admit you made a mistake?)

More important to me, even if the percentage of innocents on death row is higher than I ever would have imagined during my years as a prosecutor, it remains the fact that the overwhelming majority of those convicted are guilty. If I was going to do this again, I wanted a case that would be less of a crusade and would instead expose me to more of the system's routine operation.

One afternoon I had assembled a group of young lawyers in my office to attend a meeting on
pro bono
death penalty work when, as a pure coincidence, I found a letter in my in-box. It was from Chris Thomas, who said he'd been convicted of first-degree murder and sentenced to death, even though none of the eyewitnesses to the crime had identified him. In a scene out of
Reversal of Fortune
, a number of the young lawyers immediately wanted to take the case. The old prosecutor in me preached caution. Several weeks later, the associates, including Brett Hart, who is now my partner, had investigated and found the letter was true—in a sense. None of the eyewitnesses had identified Thomas. However, his two accomplices had turned over on him, and with this encouragement, Chris had confessed three different times, the last occasion on videotape.

On the night of October 25, 1994, Thomas, twenty-one at the time, and his two pals had run out of gas. Everybody's stories were roughly the same. All stoned, they hatched a plan to roll somebody for money. Rafael Gasgonia, a thirty-nine-year-old Filipino immigrant, was unfortunate enough to leave the photo shop where he was employed and step out behind the strip mall for a smoke. The three grabbed Gasgonia, pulling him away from the door. Thomas held a gun on him to subdue him, but another struggle broke out and Chris fired once, instantly killing Gasgonia.

From the start I had only one question: How did a parking lot stickup gone bad end up as a capital case? The six other cases from Lake County, where the crime occurred, that had led to a death penalty were far more aggravated. Hector Reuben Sanchez was one. Alton Coleman, a notorious serial murderer, was another. There was also a double murder; a case where the defendant poisoned his parents and his grandmother-in-law; a murder where the defendant first raped the victim, then shot her five times after she reported the crime; and the murder of a sixty-three-year-old woman in which the defendant beat her with a pipe filled with concrete and then stabbed her through the heart. How did this awful but nonetheless more pedestrian killing bring Thomas to the same fate as John Wayne Gacy?

It was never completely clear to me why the Lake County State's Attorney's Office had pressed forward with this as a capital case. To be sure, Chris had a record going back to his days as a juvenile, but the incidents were more in the nature of threatened rather than actual violence—he'd just finished a stretch for discharging a firearm in public, for example. The prosecutors called Chris's crime an execution-style shooting, because the gun had been pressed close to Mr. Gasgonia's forehead, but there was no question that robbery, rather than murder, had been the plan. Perhaps the biggest factors in making the case a capital prosecution were that the state had a lot of evidence—Chris's confession, his accomplices' words, and several persons to whom Chris had admitted the murder—and Chris had nothing to give them. From conversations afterwards, it appeared to me that the State's Attorney's Office had figured they'd plead the case out eventually for a lesser sentence.

Be that as it may, the salient point is that the death penalty statute gave prosecutors the latitude to charge this “typical” murder as a capital offense. In Illinois, when our death penalty statute was passed in 1977, it listed seven factual circumstances under which a murderer would be eligible for capital punishment—killing a police officer or firefighter; killing a correctional officer or inmate; murdering more than one person; murder in the course of an air hijacking; murder of a witness; contract murder; and felony-murder, referring to an intentional murder committed by the defendant in the course of nine different forcible felonies, such as rape or armed robbery. Today there are twenty-one different ways to qualify for capital punishment in Illinois. Basically, whenever public anxieties have mounted, because of either a prominent murder or an enduring problem like gang warfare, the Illinois legislature, eager to respond to the electorate's safety concerns, has added to the list of factual circumstances under which a killer may die. Thus when Arnold Mireles, a community policing volunteer in Chicago, was killed in 1998 because of his confrontation with local landlords, the legislature made the murder of a community policing volunteer a capital offense.

Moreover, one of the original eligibility factors, felony-murder, has ballooned as well. Prosecutors love felony-murder eligibility. For one thing, it provides an avenue to a capital sentence for a violent criminal with a long record whose crime might not otherwise qualify. It allows prosecutors to sentence defendants, rather than offenses. Beyond that, felony-murder is often easier to prove than other qualification factors. The evidence that a defendant was committing an armed robbery is far more clear-cut than whether he was attempting to torture his victim with a pistol-whipping. Thus, a full 60 percent of the prisoners on Illinois' death row had arrived there thanks to felony-murder eligibility, albeit often in the company of more particular criteria.

Yet felony-murder always struck me as a logical mess. Why should a murder in the course of a rape be death-eligible, if the same defendant could rape a woman one day and murder her for laughs the next without facing death? Does timing really make the crime any graver? More important, felony-murder by its nature aims at crimes that started out with another purpose. Aren't long-contemplated murders more aggravated than murders committed on impulse, like Thomas's?

These thoughts had not stopped the Illinois legislature, which had continued adding forcible crimes to the list of felony-murders punishable by death until they numbered sixteen. This statutory breadth vests prosecutors with great discretion about whether to seek the death penalty, and experience seems to teach that uncabined discretion, exercised by 102 different State's Attorneys, will inevitably lead to unfair results.

Chris Thomas was on death row, therefore, because of questionable legislative judgments. But in the legal system, like the rest of life, there is usually more than one reason something goes awry. Thomas, as is true of many others, was also on death row for the crime of having the wrong lawyers. He had been defended by two local private attorneys who had entered into a contract with the Lake County Public Defender's Office that paid them $30,000 per year to defend 103 cases, an average of less than $300 per matter. By contract, one assignment had to be a capital case. Ordinarily, a Deputy Public Defender experienced in capital defense was assigned with the contract lawyer, but the fiscal year was nearly over, and neither of the contract attorneys had done the required capital case, so they were assigned to the matter together. One of them had never had any role in a death penalty case; the other had only been standby counsel when Alton Coleman, already under the Ohio death sentence that led to his execution in 2002, had defended himself.

As I worked with Brett Hart and another of my partners, John Koski, our strategy was to characterize Thomas's defense in court as all you would expect for $600. In light of Chris's confessions, his trial lawyers had seemed to regard the case as a clear loser at trial and, given the impulsive nature of the murder, virtually certain to result in a sentence other than death. They did a spare investigation of Thomas's background for the inevitable sentencing hearing, an effort that was also hindered by the fact that the chief mitigation witness, Thomas's aunt, the closest thing to an enduring parental figure in his life, had herself been prosecuted on a drug charge by one of Chris's lawyers during his years as an Assistant State's Attorney. Chris's aunt distrusted her nephew's attorneys, and under her influence, Thomas soon did as well. He felt screwed around already, since he'd confessed to the crime, expressed remorse, and was rewarded for his contrition by being put on trial for his life. By the time of trial, Thomas was at war with his lawyers. He refused to discuss a guilty plea, and after he was convicted, he took the stand in his sentencing hearing to deny he committed the crime, notwithstanding his many prior confessions. Infuriated, Judge Charles Scott, who'd never sentenced anybody to death before, gave Christopher Thomas the death penalty. So the dominoes fell.

Since the time Chris's case was tried in 1995, the Illinois Supreme Court and the state legislature have taken several steps aimed at guaranteeing a competent defense in a death penalty trial. A Capital Litigation Trust Fund has been established to pay lawyers and experts, and the Illinois Supreme Court has created a Capital Litigation bar, with specific experiential requirements that both prosecutors and defenders must meet before they may try a death case.

Yet those changes do nothing to address the more fundamental problem of how prosecutors choose when to seek the death penalty. Looking over the roughly 270 reported opinions in Illinois capital cases, I was struck again and again by how random it all seemed: there were many monstrous crimes, but also a number of so-called garden-variety murders.

When the U.S. Supreme Court declared the death penalty unconstitutional in 1972 in
Furman
, the prevailing reason among the majority was because there was virtually no logic to who was being selected for execution and who wasn't. Legislatures and courts have spent the quarter century since capital punishment was restored attempting to establish more exacting guidelines and procedures, but the results are still wildly inconsistent. When Alstory Simon pled guilty to the double murder for which Anthony Porter was once nearly executed, Simon was sentenced to thirty-seven years. Chris Thomas was on death row, but other Lake County murderers whose crimes seemed far graver had escaped it, including one man who'd killed four persons; another who'd knocked his friend unconscious, then placed him on the tracks in front of an oncoming train; and a mother who'd fed acid to her baby. Where's the moral proportion in that?