In the spring of 1993, Morris Gauger and his wife, Ruth Gauger, were bludgeoned and stabbed to death on their family farm near Richmond, Illinois. Their son, forty-year-old Gary Gauger, phoned 911 after he and a friend discovered his father’s body on the floor of the antique motorcycle shop located at the farm. Police became suspicious when they arrived to find an oddly serene Gary Gauger, who calmly tended to his vegetable garden during the investigators’ search for evidence. After discovering the body of Ruth Gauger—but no signs of struggle or attempted robbery—police subjected Gauger to twenty-one hours of intensive questioning. During this interrogation, Gauger later reported, detectives claimed that they had a “stack of evidence” proving that he had committed the murders. It did not occur to Gauger that his accusers might be lying.
Gauger, a pot smoker and reformed alcoholic at the time of the murders, became convinced that he had blacked out—as he did on occasion when he was a heavy drinker—and killed his parents. The interrogators, reportedly trying to jog Gauger’s memory, showed him photos of his mother’s wounds and asked him to hypothetically recreate the murders. Gauger described how he might have easily sneaked up behind his “trusting” mother before striking her head and slashing her throat, and then doing the same to his father. The police accepted Gauger’s statements as a confession. After his trial in October 1993, a jury took three hours to reach a guilty verdict. Judge Henry Cowling sentenced Gauger to death by lethal injection.
Soon after Gauger’s conviction, FBI agents reported that they had overheard members of a motorcycle club discussing questionable details about the Gauger murders. Ginger Gauger, Gary’s sister, then enlisted Northwestern University Law School professor Lawrence Marshall to help with her brother’s appeal. Marshall was able to prove that there was no real evidence against Gauger and that he had been tricked into giving a false confession. Eventually, two motorcyclists were indicted for the murders of Ruth and Morris Gauger, and Gary Gauger’s sentence and conviction were overturned.
Gary Gauger’s case may be astonishing, but it is not unusual. Since the United States Supreme Court reinstated the death penalty in 1976, at least five hundred people have been executed. Between 1976 and 1999, seventy-five death-row inmates have been released after new information revealed that they had been wrongfully convicted. Thus, for every seven executions, one condemned inmate has been exonerated. “If you had to go to a hospital for a lifeand- death operation and found that the hospital misdiagnosed [one out of seven] cases, you’d run,” commented lawyer Barry Scheck, one of the speakers at a 1998 conference on wrongful death-penalty convictions held at Northwestern University Law School. “It’s an intolerable level of error, regardless of your views on the death penalty.”
Americans’ overwhelming support of capital punishment, death penalty critics maintain, is based on the assumption that only people who are guilty of premeditated murder are being executed. However, for various reasons, innocent people can end up on death row. Faulty eyewitness identifications, false testimony—often presented by “jailhouse snitches” seeking to get reduced sentences, badly handled evidence, and inept legal representation can lead to wrongful convictions. In Gary Gauger’s case, police elicited a false confession by being deceptive during interrogation. Such investigative trickery is legal because it may help to capture wily criminals. But an innocent person who trusts the police can end up as the accused in a murder case. “My parents had just been murdered and [the police] were the good guys,” says Gauger. “I know it sounds naïve now, but when they told me they wouldn’t lie to me, I believed them.”
According to death penalty opponents, the wrongly convicted are often “outsiders”: racial minorities, people with mild mental retardation, the mentally ill, or nonconformists. During Gauger’s murder trial, for example, prosecutors painted Gauger as a drug-using eccentric and ex-commune dweller who could have easily “turned” on his parents. The death penalty has often been denounced for being unfairly applied to minorities; compounding this problem, critics point out, are the recently imposed restrictions on the death-penalty appeals process. In an effort to keep condemned prisoners from using repeated appeals simply to postpone their executions, Congress passed the 1996 Anti- Terrorism and Effective Death Penalty Act, which limits convicts to one appeal in most cases. Some legal experts maintain that the law increases the chances that innocent people will be executed because it reduces opportunities for exonerating evidence to arise. In 1997, partly in response to the 1996 congressional legislation, the American Bar Association called for a voluntary moratorium on executions “unless and until greater fairness and due process prevail in death penalty implementation.” Opponents of capital punishment, furthermore, contend that the unfair and arbitrary manner in which the death penalty is administered warrants its abolition.
Supporters of the death penalty, on the other hand, are often skeptical about the innocence of death-row inmates whose convictions have been overturned. They are concerned that exonerations of the “wrongly convicted” may be based on irrelevant legal technicalities rather than solid evidence that proves innocence. In response to the 1998 colloquium on the wrongly convicted held at Northwestern University Law School, Diane Clements, president of the vic- tims’ rights group Justice for All, stated that “of the seventy-five exonerated prisoners that they highlighted at the conference, even the conference organizers said they could not prove innocence. Along with everybody else in the United States, Justice for All does not want to see innocents wrongly convicted. But were these people really innocent?”
Other defenders of capital punishment maintain that today’s improved investigative techniques, such as DNA testing, are making it less likely that people will be wrongly executed. For instance, former death-row inmates Dennis Williams and Verneal Jimerson, who had both been convicted of the 1978 murder of an Illinois couple, were exonerated after recent DNA tests revealed that neither could have been involved in the crime. Some death penalty advocates argue that the case of Williams and Jimerson and other similar exonerations indicate that the criminal justice system actually works quite effectively. Moreover, these advocates contend, sentences for murder err toward leniency rather than the other way around. Susan Smith, for example, who was convicted of drowning her two children in 1994, was sentenced to life in prison. “Unabomber” Theodore Kaczynski, who had mailed letter bombs that killed three and injured twenty-two, was also sentenced to life in prison. Murderers’ lives are usually spared when there is a possibility that they are mentally incompetent, death penalty supporters point out.
Many capital punishment advocates believe, furthermore, that the possibility of executing the innocent does not justify the abolition of the death penalty. Even if a few innocent lives are taken, they argue, the deterrent effects of the death penalty are worth it. As Detroit lawyer Stephen Markman puts it, “the death penalty serves to protect a vastly greater number of innocent lives than are likely to be lost through its erroneous application . . . a society would be guilty of a suicidal failure of nerve if it were to forgo the use of an appropriate and deserved punishment simply because it is not humanly possible to eliminate the risk of mistake entirely.” Public opinion reflects Markman’s contention: A June 1995 Gallup poll showed that 57 percent of Americans would still favor the death penalty even if one out of one hundred of those executed were undeniably innocent.
Although public support for capital punishment remains strong, concern about the possibility of wrongful executions is reflected in the writings of criminologists, lawmakers, and theologians. Capital Punishment: Current Controversies explores this topic as well as arguments concerning the ethics, fairness, and deterrent effects of the death penalty. Its various authors provide a compelling examination of the enduring issues surrounding the death sentence.