Ultimate Punishment by Scott Turow

and infuriating that after all the misery the murderer has wrought, he still experiences many of the small joys of existence, and thus in some measure his life and his family’s is better than the victim’s and theirs.
    â€œYet even if a survivor’s desire for a killer’s death reflects broadly held views of what is just, the actual implementation of those wishes may not be fair. For example, emphasizing the preferences of victims has exaggerated many of the inherent inequities of our capital justice system, often enhancing the randomness of who gets sentenced to death and who does not. The murders of Melissa Ackerman and Jeanine Nicarico were virtually identical crimes, yet Brian Dugan received life imprisonment for the murder of Melissa Ackerman, because the Ackerman family was willing to accept the sure, quick resolution offered by a guilty plea, while the Nicaricos have demanded death for their daughter’s killer. It violates the fundamental notion that like crimes be punished alike to allow life or death to hinge on the emotional needs of the survivors.
    The rise of the victims’ rights movement in the 1980s was based on the reality that survivors were often shunted aside in the criminal process, poorly informed, and even forgotten. Yet it is also not coincidental that victims’ rights came into their own in the Reagan era, when there was increasing acceptance of a libertarian market-oriented ideology, which sees security as one of the few acceptable goals of government action. Building on that, the notion seems to be that when the legal system fails to provide security, citizens are entitled to assume the law’s power on their own. Thus victims have sometimes become virtual proprietors of the justice system in capital cases. Yet is it the law, alone, that has failed when a murder takes place? Or is the responsibility a far broader one that reaches to all the institutions in our society—schools, churches, towns, and families? Why make the law the one engine for recompense for survivors?
    To me by far the greatest fallacy in justifying capital punishment with the oft-heard mantra that “the victims deserve it” is that it is, in a favored lawyers’ phrase, an argument that “proves too much”—an argument that, when extended, defeats itself. Once we make the well-being of victims our central concern and assume that execution will bring them the greatest solace, we have no principled way to grant one family this relief and deny it to another. From each victim’s perspective, his loss, her anger, and the comfort each victim may draw from seeing the killer die are the same whether her loved one perished at the hands of the Beltway Sniper or died in an impulsive shooting in the course of a liquor-store holdup. The victims-first approach allows us no meaningful basis to distinguish among murders.
    Yet in a state like Illinois, 49 times out of 50, a death sentence is not imposed for a first-degree homicide. Are we saying that justice has not been done in 98 percent of cases? Not according to the Supreme Court, which has established constitutional requirements that presuppose that the death penalty will be imposed on a select basis. The Court requires legislatures to create exacting guidelines about the factual circumstances under which capital punishment may even be considered, followed by a scrupulous weighing of the aggravating and mitigating factors that characterize a particular crime and defendant. And in this formulation, no matter how liberal the victim-impact rules, the expressed desires of survivors for the death penalty have no permissible role. Indeed, when we allow victims to “own” the process, we are defying that framework.
    This leads me to think that we hide behind victims to some extent, identifying with their just wrath as a more comfortable expression of our own retributive impulses. Prosecutors, in particular, use the victims’