Chicago Tribune

EDITORIAL

Nearly 1 year ago, Gov. George Ryan took a hard look at capital punishment in Illinois and was deeply unnerved by what he saw. His decision last January to declare an indefinite moratorium on the death penalty stands as one of the most courageous acts taken by an Illinois governor, in part because Ryan spent his political career ardently supporting capital punishment.

The moratorium followed a startling series of death row exonerations, most significantly the 1999 release of Anthony Porter, a man who had come within 48 hours of execution for a crime he did not commit. It followed the probings of a Northwestern University teacher, his students and a private investigator who won Porter his freedom. Tribune investigations of deep fissures in Illinois’ criminal justice system, the governor acknowledges, helped crystallize his thinking. He formed a special commission to scrutinize the system and recommend reforms. A separate Illinois Supreme Court committee recently issued its own recommendations. It is up to the legislature, the courts and the police to see that they become law and common practice.

Ryan’s wake-up call blared far beyond Illinois’ borders. Congress now is debating passage of its own safeguards. Public support for executions has tipped downward, the more that folks learn about inequities and errors plaguing a system whose mistakes can never be reversed. In the 37 other states that allow the death penalty, more than two dozen counties and cities have adopted resolutions that call on their states to halt executions. These are symbolic gestures, but still are indicative of shifting attitudes.

5 other states—Nebraska, Arizona, North Carolina, Maryland and Indiana —have initiated reviews; New Hampshire lawmakers voted earlier this year to abolish the state’s death penalty before the move was blocked by gubernatorial veto. Even Texas, where lethal injections occur at assembly-line pace, isweighing proposed reforms.

And for good reason. If the state plans to take a life, it had better be absolutely certain of the convicted person’s guilt. The problems that obstruct that clear a finding run deep, and lurk in every nook and cranny of the legal system. 6 people are especially familiar with them: Murray Blue, Ronald Alvine, Darryl Simms, Hector Nieves, Cecil Sutherland, Willie Thompkins. These are names of men whose death sentences were reversed or remanded during the last 12 months because of errors committed in sending them to death row. Their cases help mark a shameful watershed: More than 1/2 of the nearly 300 people sent to death row in Illinois since 1977 have had their cases reversed on appeal because of mistakes, misconduct, or because they were proven innocent.

Their ordeals showcase the range of problems running through our criminal justice system. Confessions wrought by police torture. Improper decisions by judges. Innocence proven by DNA testing. Prosecutors knowingly using perjured testimony. Inept defense attorneys. Convictions dependent on the notoriously unreliable testimony of jailhouse snitches.

Then there is this, by now familiar, statistic: Since reinstating the death penalty in 1977, Illinois has cleared 13 inmates from death row. It has executed 12.

Just when everybody thought the death penalty was yesterday’s debate, Ryan’s declaration slapped it back onto the national marquee. And suddenly a one-time pharmacist from Kankakee now finds himself the darling of a resuscitated anti-death penalty movement, speaking at Harvard Law School and accepting awards around the country.

Ryan has made a long philosophical journey since his spokesman Dave Urbanek declared two years ago that Porter’s release showed “the system works.” These days, Ryan suggests the system may be beyond fixing.

That is a question that will be answered in the coming months.

A number of reforms already have been put in place since the start of the moratorium. The state established a special fund to provide more money to both public defenders and prosecutors for hiring more attorneys and investigators, and to pay for more thorough investigations. It’s still not enough for defenders to level the playing field. All potential death penalty prosecutions in Cook County now must be reviewed and approved by State’s Atty. Richard Devine, a procedure top prosecutors in his office credit with reducing the number of death penalty prosecutions by roughly 25 %.

Other potential fixes demand prompt action.

A bipartisan committee led by Republican state Rep. Jim Durkin studied the problem for a year and has crafted reasonable, responsible trial reforms. They should be adopted in full during the spring legislative session. These measures include requiring pre-trial screening of all jailhouse informant
testimony, automatic new trials in cases where prosecutors knowingly withhold evidence useful to the defense, and pre-trial depositions of certain witnesses. A permanent special committee should be established to study wrongful convictions to understand where the system fails and to help correct institutional errors.

Still other measures deserve special attention:

Limit eligibility for the death penalty. When the Illinois legislature voted in 1977 to reinstate the death penalty, it outlined a handful of specific circumstances— called “aggravating factors”— that would make a defendant eligible for the ultimate punishment. Murdering a police officer, firefighter or prison guard. Murdering in the course of a hijacking or while committing another felony. Murdering 2 or more people. Murdering for hire. These were narrow, yes-no conditions that limited arbitrariness on the part of state’s attorneys who decided when to ask for the death penalty.

Since then, though, state lawmakers have expanded the number of aggravating factors to 20—a ludicrously high number, more than any other state but Delaware and California, with 22 each —and enough to render meaningless the notion that executions in Illinois are reserved only for the most heinous criminals. Thanks to politicians eager to burnish their tough-on-crime images, every sensational headline provides another qualifier for the death penalty. Example: Killing a is this, by now familiar, statistic: Since reinstating the deatan alderman, a community policing volunteer or a disabled person now merits the death penalty. The point is not that these victims’ lives would be less valuable than their killers’. It is, instead, that some of the added factors are so general—such as if the murder is “cold, calculated and premeditated”—as to throw the class of eligible cases wide open. And that, in turn, invites with a neon sign the kind of arbitrariness that the original list of aggravating factors was intended to surmount. Today, one prosecutor’s death penalty case is another’s life sentence. True reform would take Illinois back to the original, less ambiguous conditions.

Videotape interrogations and confessions. Kankakee County sheriff’s deputies have been videotaping since 1994, and now can’t imagine doing it any other way. Illinois has seen too many examples of false confessions resulting from brutal beatings. Videotaping felony suspects’ entire interrogations and confessions helps prosecutors as much as defense counsel, cuts down on frivolous motions to suppress illegal confessions, compels faster pleas and protects police from brutality claims. The relatively minor investment in video equipment pays off significantly down the road.

Stop executing mentally retarded inmates. The great irony of Anthony Porter’s exoneration is that had he not the perverse good luck of a low IQ, he may well have been dead today. Porter won a last-minute stay to undergo a mental competency hearing, which allowed time to hunt down witnesses and obtain a videotaped confession from the real killer. Mentally retarded individuals are especially susceptible to making false confessions, and are as incapable of exercising full adult responsibility as they are of helping with their legal defense.

Establish competency standards. Incompetence on the part of overburdened, under-resourced public defenders in capital cases is a pathetic, persistent refrain. Minimum standards and special training for defense lawyers who handle capital cases are desperately needed. Same goes for
judges, who wield enormous power at all stages of death penalty cases; allowing a jurist who usually hears DUIs to preside over a capital case is like asking a foot doctor to perform brain surgery.

The death penalty, properly administered, should be reserved only for society’s most heinous, most well-defended and most unambiguously selected criminals. But to get to the day when moral certainty can be assured, there is much work to be done.

In 1976, this page stated: “True, innocent people have been jailed—but neither judges nor juries are inclined to impose the death penalty unless there is far less than a reasonable doubt of their guilt.”

It is time to make certain that is true.