TO KILL OR NOT TO KILL.(capital punishment)

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 Ramirez, 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, ...