Wall Street Journal
By SCOTT TUROW
Capital punishment has been one of the most notorious train wrecks of American politics. The Supreme Court declared it unconstitutional in 1972, but the resulting public furor led the court to reverse itself in 1976. Although polls continue to show majority support for capital punishment, opposition is fierce, especially from religious leaders and humanitarian organizations who denounce it as a moral affront.
Meanwhile, the operation of the capital punishment system remains under attack. According to the Death Penalty Information Center, the 100th innocent person was released earlier this year from death row, raising questions about how many innocents have already been executed, while the surviving family members of murder victims often find the wait from trial to execution, averaging 11.5 years in 2000, an insulting protraction of their grieving.
These patterns came under intense scrutiny in Illinois in March 2000 after the 13th exoneration of a death row inmate in that state. Gov. George Ryan declared a moratoriam on further executions and appointed a commission to determine what reforms, if any, would ensure that the capital punishment system was just and accurate. I served as one of the 14 members of the commission, which delivered its report last week. I believe some aspects of our experience may help make the national debate less heated and more focused.
Our report contained 85 specific recommendations directed to every stage of the criminal process, from police investigation through clemency proceedings. Included were proposals for a statewide panel to review local prosecutors’ decisions to seek the death penalty; banning capital punishment for the mentally retarded; significantly reducing the number of factual circumstances rendering a murderer eligible for capital punishment; controlling the use of jailhouse informants at trial; and allowing trial judges to reverse a jury’s decision to impose death. (An idea distinct from Monday’s Supreme Court argument about whether only a jury may find death justified in the first place).
Before the arguments about the wisdom of specific recommendations gather steam in Illinois and elsewhere, I wanted to focus on one important aspect of the report that may be overlooked. More than 85% of the recommendations we made were unanimous.
This was no small achievement, given the diversity of opinion in the group. The governor appointed, among others, a former U.S. senator, the general counsel to the Chicago Police Department, the current head of the Illinois State Attorneys organization, the public defender in Chicago, a past president of the local bar association and the son of a murder victim. Among us, there were fierce opponents of capital punishment and stout defenders, but we worked for two years in a spirit of amity and conciliation.
Looking over the recommendations, there were three assumptions that limited the contentiousness of our deliberations and might, for that reason, be guideposts in the death-penalty debate. First, respect for the political process. Second, respect for the legitimate needs of the surviving loved ones of murder victims. And third, recognition that the system requires reform.
Because nine of the 14 members of the commission were present or former prosecutors, abolitionists criticized the choices, assuming there was a pro-death-penalty majority. At the end of two years, after our recommendations were formulated, we called the question of whether the death penalty should be repealed. By then, at least, a majority of us favored abolition.
But repeal was not one of our recommendations. That is because it remains clear that the majority of Illinois citizens and legislators favor capital punishment. As a body, we accepted that the Supreme Court’s decisions make capital punishment a political question, meaning it is properly left to the citizenry. By denouncing capital punishment as barbaric, opponents have engaged in a frontal attack on the moral character of those who favor it. Not surprisingly, this endless game of yes-you-are, no-I’m-not has bogged down public discussion.
Accepting the political nature of the question means the argument should be refocused as one about policy, not morality, requiring detailed information about how the system operates and not just a gut-check. As a nation we need to decide if the costs of capital punishment — the staggering financial toll of litigation, the consumption of limited court resources, the disparities in the system’s results, and the enduring risk of executing the innocent — are worth the powerful denunciation of ultimate evil that capital punishment is meant to trumpet.
Second, we remained conscious throughout of the proper role of the surviving loved ones of murder victims. In the last decades of the 20th century, capital jurisprudence went through a sea change in its attitudes toward survivors. As late as 1987, the Supreme Court found it unconstitutional to offer evidence in a capital sentencing of the impact of a murder on survivors, deeming it irrelevant to the only proper issue, the blameworthiness of the defendant. Yet the rising tide of the victims’ rights movement changed that. In most jurisdictions, loved ones are entitled to be heard during the death-penalty hearing, and prosecutors frequently pay close attention to their desires. Often one defendant lives and another dies for virtually identical crimes simply because of the wishes of survivors.
We met often with surviving family members in hopes of determining their views of the death penalty and what they wanted from the process, including their search for emotional closure. We found that survivors need enhanced support services and reliable communication about developments in a case. Compassionate services, rather than a determinative role in the penalty process, may be a better answer for survivors as well as for the system.
Finally, whether we supported or opposed the death penalty, we were all able to agree that the capital punishment system as it stood was in need of dramatic reform. Gov. Ryan, a long-time death penalty proponent, set a courageous example by taking the politically dangerous step of halting executions in the face of mounting evidence of mistakes.
Too often, those who favor capital punishment in principle have wedded themselves to present practices. In Illinois, 65% of death penalty cases have been reversed, either because of errors in sentencing, or less often, in determining guilt. Dueling studies published last year put the national rate at somewhere between 43% and 68%. While those numbers reflect commendable scrutiny by reviewing courts, they also bespeak a system which, facing the inflammatory nature of most capital murders, fails with dismaying frequency to produce legally acceptable results. As Tom Sullivan, a co-chair of our Commission, said in handing our report to the governor, “repair or repeal” of the capital punishment system are the only principled choices. It is time we arrived at national resolve about that.
Mr. Turow is a lawyer and novelist.
