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.