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Jewish World Review Oct. 30, 2003 / 4 Mar-Cheshvan, 5764

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Reason and Death | Of capital punishment, Massachusetts Gov. Mitt Romney says: "It makes reason stare." Indeed it does.

Romney, speaking by telephone from Boston, says he wants to influence the thinking of potential killers. He means capital punishment can deter -- can "save a life or two." That is one reason he wants to remove Massachusetts from the list of 12 states without capital punishment.

A second reason is that he believes there are crimes so heinous that only capital punishment can express -- and by expressing, reinforce -- society's proportionate revulsion. A third reason is Stephen "The Rifleman" Flemmi. This month in Boston he pleaded guilty to federal racketeering charges in connection with his role in 10 murders. He pleaded to avoid the threat of death penalty charges in Florida and Oklahoma. "I would hate," Romney says, "to lose the ability to get Mr. Flemmi to turn state's evidence."

Romney has appointed an 11-member Council on Capital Punishment. The legal and forensic experts' task is to devise a statute that will meet the "highest evidentiary standards." He and his panel may conclude that all standards are porous enough to allow unacceptable uncertainties to pass through, and that evidentiary standards are hardly the only problem with capital punishment.

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So concluded Scott Turow, the lawyer and novelist, after his service on the Illinois commission examining that state's administration of the death penalty. That experience transformed him from "a death penalty agnostic" into an opponent, a process he recounts in a slender new book "Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty."

He cites several horrifying case histories, including one of an innocent man convicted and sentenced to death twice. In the span the commission studied, one-third of the times Illinois stipulated the death sentence, the persons sentenced were subsequently either proved innocent or found, on second consideration, guilty of the offense but not deserving execution. This was the context in which then-Gov. George Ryan this year commuted the sentences of all 167 Illinois prisoners sentenced to death.

Turow cites chilling instances to remind readers that eyewitness testimony can be much less than the "evidentiary gold standard" it is supposed to be. Furthermore, because of the psychological tangles in the minds of some accused persons, and because of the leverage prosecutors have over the accused, there are exceptions to the supposed iron law that people will not confess to a crime they have not committed.

And some of the very crimes for which Romney wants capital punishment reserved -- the especially heinous -- are the ones that, Turow says, "are uniquely prone to error." Community passions around such cases put law enforcement, and especially elected state's attorneys, under extreme pressure to quickly find and convict a culprit. These passions trigger what Turow calls "the propensity of juries to turn the burden of proof against defendants accused of monstrous crimes."

A properly, meaning narrowly, drawn capital punishment statute is necessarily problematic. Restricting that penalty to a few offenses guarantees that it will rarely be inflicted. Furthermore, the thick fabric of procedural protections that courts have woven around capital punishment guarantees the elapse of, on average, more than a decade between a conviction and an execution, and has generated considerable uncertainty about who among those convicted of the few capital offenses will be executed.

Yet a punishment's deterrent power depends not only on the punishment's severity but also on the swiftness and probability of its application. Turow says that even in Wyoming, which has the nation's highest death-sentencing rate, fewer than 6 percent of homicides result in a death sentence.

Romney is right that DNA evidence, which opponents of capital punishment have used to free some innocent persons improperly convicted, can buttress capital punishment by establishing guilt unassailably. However, DNA evidence is not decisive -- does not provide incontrovertible proof -- in most capital cases.

A person's views of capital punishment often turn, Turow believes, on the person's views of "the perfectibility of human beings and the durability of evil." But imperfections and temptations to evil are not confined to criminals; they taint all human systems. And as for making a potential killer's "reason stare," Turow says dryly: "Murder is not a crime committed by those closely attuned to the real-world effects of their behavior."

Turow expects that the Supreme Court will eventually "conclude that capital punishment and the promise of due process of law are incompatible." Be that as it may, if Romney, a reasonable man, reads Turow's essay, he will have an even more rounded appreciation of how the ultimate punishment makes reason not merely stare but ultimately turn away.

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