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.”