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).