New York Times
By SCOTT TUROW
CHICAGO — Before he left office on Monday, Gov. George Ryan of Illinois, a longtime supporter of capital punishment, emptied the state’s death row by pardoning four condemned men and commuting the sentences of the remaining 167 prisoners. Some are calling this an act of tremendous bravery, while prosecutors and the families of victims claim justice was thwarted. Many others believe he should have acted in the most questionable cases without providing leniency to some of the state’s most brutal and unrepentant murderers.
Personally, I think the former governor did not have an easy or clear way out, and I would defend him for that reason. Yet, as a member of the governor’s commission that issued a report on death-penalty reform that led to lawyers filing the clemency claims for virtually all of these prisoners, I am concerned about what we have wrought. The stability and reliability of the law as an institution are brought into question when the work of many years by the police, prosecutors, judges and juries — as well as the implied promise to victims’ families — is overturned because of the actions of a single individual, no matter how well intended or even necessary.
This issue — the risk of undermining Americans’ faith in the legal process — is perhaps the most overlooked aspect of the death-penalty debate. And, paradoxically, it may be the most compelling reason for those who now favor the death penalty to reconsider their position.
Governor Ryan found himself in an all-too-familiar position. Despite clear problems in the capital system, the public passion to see the worst crimes subjected to the most severe punishment makes legislators fearful of intervening, forcing executive officials or the courts to step in. Prosecutors have a natural unwillingness to undo their own work. Those with clemency powers have to steer between playing God and incurring public wrath. And the courts have given us three decades of conflicting decisions and shifting legal grounds on the issue.
Since 1972, the United States Supreme Court has declared capital punishment unconstitutional, then restored it but subjected it to an endless variety of shifting procedural standards. Last year, the court declared that executing the mentally retarded constituted cruel and unusual punishment. It also deemed unconstitutional capital systems that allowed judges to impose death sentences after guilty verdicts by juries.
These two rulings brought countless death sentences across the country, including in Illinois, into doubt. And things here were already confused enough: historically in Illinois nearly a third of the people first sentenced to death have had the sentences reversed and reduced. More pointedly, including the four men pardoned by the governor this week, the state has sent 17 men to death row who were later exonerated.
In short, Governor Ryan was hardly upending a stable system producing predictable results.
Rather, the 14-member commission on which I served found persistent problems: false confessions that had been coerced or dubiously reported by the police; mistaken eyewitness identifications; murderers who portrayed innocent people as accomplices; jailhouse informants who became witnesses in exchange for the kinds of favors that clearly tempted lies; and a statutory structure that provided an obvious pathway to arbitrariness in deciding who was to die.
We made 85 substantive proposals for reform, including requiring the police to videotape the full interrogation of murder suspects, reducing the number of circumstances making defendants eligible for the death penalty and establishing a statewide commission to review any case in which a local prosecutor wanted to seek a death sentence.
These proposals were greeted respectfully, although hardly with universal acclaim. Still, the state prosecutors’ organization, the two candidates hoping to succeed Governor Ryan, the state’s major newspapers and a host of legislators joined in the call for substantial reforms.
Yet none have been passed because of political wrangling and the chronic timidity of officials when it comes time to take positions that can later be labeled as soft on crime. When I testified last summer before the State Senate judiciary committee in favor of reducing the scope of the death penalty statute, one member confessed on the record how dangerous a yea vote might be in the hands of future political opponents.
Moreover, the failure to reform the system also left unanswered the question of how to deal with past cases. No one — not the legislature, the prosecutors, the candidates, or even the commission on which I served — offered any alternative to Governor Ryan. He either had to accept the results of a system everyone agreed needed to be fixed or exercise the clemency powers the state constitution imposed on him.
And, because a scrupulous review of the death row cases was likely to require the governor to act in some cases, it left him in the position of having to decide whether he was obliged to reduce all the state’s death sentences. Knowing the details of so many of these cases, I could see how difficult it was to draw the line.
Again and again, the cases that seem to present the most compelling facts favoring execution prove, under scrutiny, to contain elements raising doubts. Probably the most dangerous man in the Illinois penitentiary system is a twice-convicted murderer, believed to have killed at least five people. He has compiled a record of repeated serious assaults on inmates and guards with a startling variety of deadly weapons. But his death sentence was based on the testimony of two eyewitnesses who now claim they implicated him falsely because of pressure from prosecutors.
Another man who murdered two police officers had been in mental institutions for more than 20 years and may well have been incompetent at the time he plead guilty. And there were also several horrible murders where one defendant was sentenced to die, while prosecutors or juries allowed a highly culpable co-defendant to live in prison. In the end, the governor says he could find no principled way to pick and choose.
What happened in Illinois is a cautionary lesson. Inaction by legislatures forces more and more of the responsibility for creating remedies into the hands of government executives or the courts. The solutions they arrive at are often unpopular, and the principles that guide them prove subject to constant change because of the irreconcilable tension between individualized decision-making and the constitutional demand that we impose this ultimate sanction on a consistent and reasoned basis.
At the end of the day, perhaps the best argument against capital punishment may be that it is an issue beyond the limited capacity of government to get things right.
*Scott Turow is the author, most recently, of “Reversible Errors.”
