Testimony of Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center to the Illinois House of Representatives addressing innocence and

HISTORIC ILLINOIS HEARINGS ADDRESS INNOCENCE AND THE DEATH PENALTY

Following a series of celebrated releases of innocent defendants from its death row, Illinois's House of Representatives held hearings to address the state's system of capital punishment on September 15 & 16, 1999. Among those who testified were Sister Helen Prejean, author of Dead Man Walking; Mike Farrell, actor and human rights activist; Renny Cushing, Director of Murder Victims Families for Reconciliation; Bryan Stevenson, Director of Equal Justice Initiative; Professor Lawrence Marshall, Northwestern University School of Law; Richard Dieter, Executive Director of Death Penalty Information Center

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Illinois House of Representatives

Testimony of Richard C. Dieter, Esq. Executive Director,
Death Penalty Information Center Washington, DC

September 15, 1999

Good afternoon. My name is Richard Dieter. I am an attorney and the Executive Director of the Death Penalty Information Center in Washington, DC, a position I have held since 1992.

I want to thank the members of this committee for your recognition of the importance of this issue and for affording myself and others the opportunity of offering a variety of perspectives on how the death penalty is being administered around the country.

The Death Penalty Information Center is a non-profit organization which seeks to educate the public about the practice of capital punishment through objective information and analysis. We are funded primarily through foundation grants. In our analysis of the death penalty, we examine questions of fairness and the possibility of mistake, and in this we have been critical of the death penalty. Nevertheless, the Death Penalty Information Center does not have a position on the death penalty per se.

When it comes to the issue of innocent defendants being sentenced to death, I believe we have a special expertise to offer. In 1993, Representative Don Edwards, who was then Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, asked us to prepare a report on the dangers of executing innocent people. Our analysis of this issue included a discussion of 48 cases in the prior twenty years where people had been freed from death row after evidence demonstrated their innocence.

That report was released as a Staff Report of the Subcommittee and the list of cases became a basis for an ongoing concern about innocence and the death penalty. The Subcommittee released an updated version of this report in 1994 and we released a further update in 1997. Our 1997 Report contained a total of 69 cases where innocent people had been released from death row. By the time of the national conference on innocence held here in Chicago in November of last year, that number had risen to 74 cases, and today it stands at 82.

Clearly, the risks of executing innocent people that this large and growing number of cases represents, and the terrible costs to the lives of these 82 people, call for some radical changes in our system of justice. I commend the members of this committee and the Illinois House of Representatives for the courage to address this issue head-on. The problem is not one which is unique to Illinois. (In fact, more innocent people have been released from Florida's death row than from Illinois's.) And I have no doubt that many more such innocent people remain on death row today -- some in states that provide little or no representation for post-conviction review, or which resist releasing innocent inmates, even when the evidence of mistake is overwhelming.

What can be done? On one level, this is a simple problem: if life imprisonment were substituted for the death penalty, there would be zero danger of executing the innocent. But I'm aware that this committee needs to hear concrete suggestions for changing the system without necessarily abandoning the death penalty. I will leave to those more familiar with the intricacies of Illinois's laws and procedures to suggest where practical changes could be made to ameliorate this problem. I would like to propose some broader areas of change:

Racial Bias
The issue of racial bias in the death penalty system is a different one than the issue of innocence. But they overlap. Ten out of the twelve people who have been released from Illinois's death row are members of a minority. Most are African-American. That doesn't prove racial bias, but it should raise concerns. Illinois's death row is made up of approximately 156 individuals, 97 of whom are black -- that's 62% in a state where the black population is less than 15%. Again, those figures do not prove any racial bias, but such a glaring disproportion is evidence that something is wrong at some level of society. If race is playing a role in who is sentenced to death, then it can also be playing a role in who is wrongly convicted. In any case, no one should be satisfied with racial bias in death sentencing, even if everyone charged is guilty.

Around the country, there is overwhelming statistical evidence that race does play a significant role in the death penalty. The U.S. General Accounting Office was asked by Congress to review the race data that had been collected in the U.S. by 1990 and found that: the "race of [the] victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those murdering blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques."1

Award-winning researcher David Baldus of the University of Iowa Law School recently made a more recent review of death penalty race studies data in the U.S. for the American Bar Association. He found relevant race data in 29 of the death penalty states. In 90% (26/29) of these states, there was evidence of race-of-victim disparities (i.e., under otherwise similar circumstances, a defendant was more likely to receive a death sentence if the victim was white than if the victim was black) -- and that included studies in Illinois.2 Unfortunately, the Illinois's studies are somewhat dated and new research needs to be conducted.

Another recent study found that nearly 98% of the country's district attorneys responsible for the decision to seek the death penalty are white. Only 1% are black. In Illinois, at the time of this study in 1998, 100% of Illinois chief prosecutors were white -- there was not a single black or Hispanic among the 102 people who decide who is to face the death penalty in this state.3

In 1990 and again in 1994, the U.S. House of Representatives passed a bill called the Racial Justice Act. It simply allowed those facing execution to challenge their sentences on the basis of patterns of racial disparities, just as such data are used in housing or employment discrimination suits. However, the bill was defeated in the Senate. Just this past year, a similar bill became law in Kentucky, the first state to adopt it. A Racial Justice Act would not end the death penalty. But it would limit it in a way that would make it fairer and more accurate.

Mental Retardation

Allowing those afflicted with mental retardation to be subject to the death penalty also results in a less reliable death sentencing process. Defendants with mental retardation are more likely to be inappropriately compliant with the police, less able to assist in their own defense, behave at trial in ways that the jury may misconstrue as flippant, unremorseful, or even dangerous. In 1987, the U.S. Supreme Court looked at the question of mental retardation and the death penalty. At that time, they found only one state, Georgia, that forbid the execution of the retarded. Today, 12 states and the federal government exclude those with mental retardation from the death penalty, with more states likely to follow. Illinois is not yet among those states.

Lingering Doubt

I would like to suggest one other change which would limit the death penalty in Illinois. One of the problems with capital punishment in the United States is that there is vast discretion among nearly 2,000 district attorneys to seek the death penalty. The result can only be described as arbitrary and unpredictable. We have the largest death row in our history and probably the largest in the world -- and it is getting larger. Such a method of punishment is incredibly burdensome to the taxpayers, the criminal justice system, and the judicial system. Illinois is a good example. In 25 years, Illinois has had 12 executions and 156 people remain on death row. At that rate, it would take 300 years to execute just those on death row today. Even assuming Illinois executed 2 people per year, which is it's more recent pace, it would still take 75 years to empty death row, provided no one else was sentenced to death.

One limitation on this process would be to try to eliminate from death sentence consideration those cases where there is some doubt about the person's guilt. When states reinstated the death penalty after the Supreme Court's Furman decision in 1972, they looked to the Model Penal Code for language which might be acceptable to the Supreme Court. They largely followed the proposed statutes in the Model Code, except for one recommendation: an instruction on lingering doubt in death cases. The American Law Institute, the writers of the Code, suggested the following instruction. When a defendant is found guilty of murder, the Court shall impose a non-death sentence if it is satisfied that:

(f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt.4

The American Law Institute explained the need for such a provision in its Commentary to this subsection:

[This section] is an accommodation to the irrevocability of the capital sanction. Where doubt of guilt remains, the opportunity to reverse a conviction on the basis of new evidence must be preserved, and a sentence of death is obviously inconsistent with that goal.5

Unfortunately, although many states employed a list of aggravating and mitigating circumstances for capital cases similar to the Model Penal Code's suggestions, no state or federal jurisdiction has adopted this protection against the execution of the innocent. In light of the heightened danger of error in capital cases, it is vital to at least amend existing statutes in line with the Model Code's recommendations. An additional revision would be needed to allow appellate courts to take similar action when evidence of innocence does not emerge until well after the trial.

Besides the critically important goal of saving innocent lives, such legislative changes could quickly eliminate from the lengthy death penalty appeals process some of the most troubling and time-consuming cases, i.e., those approaching execution with a legitimate claim of innocence. This would save the criminal justice system both time and money.

Conclusion
I would like to close with one additional observation: Reform of the death penalty may be a futile task. Some of the best legal minds of our era have concluded, after close observation, that the death penalty is irredeemable within our constitutional framework and should simply be ended. This was not only the conclusion of Justice Thurgood Marshall (who actually represented people facing execution) and Justice William Brennan, but of Justice Lewis Powell and Justice Harry Blackmun, both of whom supported the constitutionality of the death penalty in the key Supreme Court decisions of 1972 and 1976.

Certainly, there is no way that reform can completely eliminate the possibility of executing the innocent. But that is not to say that further reform should not be tried. The rest of the world is becoming increasingly critical of the U.S.'s use of the death penalty. Pope John Paul II and the U.S. Catholic Bishops, the United Nations Commission on Human Rights, the American Bar Association, the major human rights and civil rights organizations, the religious leaders of most of the major denominations in the U.S., family members of murder victims, and many, many others are saying that at least a moratorium should be placed on executions until this system can be more closely examined. It would be foolhardy for us not to make some positive response.

Thank you. I would be happy to answer any questions from members of the committee.

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1. U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990), at 5.

2. D. Baldus, et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell Law Rev. 1638, 1661 (1998).

3. See J. Pokorak, Probing the Capital Prosecutor's Perspective: Race of the Discretionary Actors, 83 Cornell Law Rev. 1811 (1998).

4. See Model Penal Code (Proposed Official Draft 1962), American Law Institute, at section 210.6(1) (emphasis added).

5. Id., commentary (1980).

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