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 which, 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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