Debating Death

Too often in Illinois, police and prosecutors have seemed hell-bent on convictions - not justice - when it comes to serious crimes. "Too often" is once if it means the death penalty, but at least 13 times the state has sent somebody to death row who was later discovered to be innocent.

Now the state is in an ideal position to reform its death-penalty system. Will it?

On April 15, the Commission on Capital Punishment appointed by Governor George Ryan released its final report after more than two years of work. The document includes more than 80 recommendations to improve the process of the death penalty, which hasn't been used in Illinois since Ryan instituted a moratorium in early 2000.

Key suggestions of the report include restricting eligibility for the death penalty (in terms of both crimes and mental capacity), videotaping interrogations, providing for review of statements by "in-custody informants" and alleged accomplices, and establishing a forensic-science lab independent of law-enforcement agencies. (See sidebar for a summary of recommendations.)

At its heart, the commission's work seeks to reduce the possibility of error in death-penalty cases. Its recommendations - taken as a whole - represent what could be considered model due process, ensuring accountability, openness, and competency at all levels of the criminal-justice system.

No other state has taken such a wide-ranging, thorough look at the problems of capital punishment. The report is nuanced, clear-headed, comprehensive, and frank, acknowledging that there was disagreement among the 15-member commission but more frequently expressing a unanimous view. "This is the definitive roadmap for capital-punishment reform nationally," said Edwin Colfax, executive director of the Illinois Death Penalty Education Project.

The process recommended by the commission accounts for both the severity of the crime and the weight of the evidence; in situations in which the prosecution's case is strong enough to get a conviction but still relatively flimsy, there would be safeguards to ensure that the death penalty is not imposed.

But as informative and sensible as the report is, it has one major fault: It does not have politics and elections in mind. The commission doesn't offer an easy or simple legislative course; there's no silver bullet in the report. Its dozens of carefully phrased recommendations must be looked at as a whole, because if capital-punishment reform is approached piecemeal, it will not create a system that is significantly more just than the one that sent 13 innocent men to death row.

"We can't even think of lifting the moratorium until all these problems are substantially addressed," Colfax cautioned. "If we're going to have a death penalty ... we have to make sure we don't execute an innocent person."

Political Reality

The Commission on Capital Punishment was appointed by Governor George Ryan in 2000, less than two months after he imposed a moratorium on executions in Illinois. That decision came after death-row inmate Anthony Porter was freed less than 48 hours before his scheduled execution. Porter was the 13th person released from Illinois' death row since the state re-started the death penalty in 1977.

Ryan's office is not offering any sense of where the governor stands on the report or its recommendations. "He's still reviewing it," spokesperson Karen Fincutter said last week. She said the governor has established no timeline for completing his deliberations.

But the report is winning praise from critics of the current death-penalty system and has garnered attention around the world.

Peter Kivisto is a death-penalty opponent on moral grounds and is the Richard A. Swanson Professor of Social Thought at Augustana College. He said the report is a step in the right direction even though he dislikes its premise: "Figuring out ways to 'fix' the death penalty always makes me nervous," he said. "Reform" of the death penalty, he said, is simply a pause between killing. Yet by narrowing the scope of capital punishment, the commission's recommendations would significantly reduce the number of people sentenced to death in Illinois.

The report "successfully identifies all the problems" in the death-penalty system, Colfax said. "In general, the approach is solid."

In addition, many of the reforms are common-sense initiatives. "A lot of these measures are not going to be that controversial," Colfax said.

Some of the major recommendations have already been proposed in the legislature in one form or another. One bill in the House would allow for the videotaping of interrogations, and Colfax noted that "a couple of unlikely suspects" are supporting the measure, including Republican gubernatorial nominee Jim Ryan and GOP attorney-general candidate Joseph Birkett. Another bill would establish lineup procedures similar to those suggested in the commission report.

While these bills already exist in the legislature, they've run into a roadblock in the Senate, where President James "Pate" Philip has kept such reforms - and all legislative matters not to his liking - bottled up.

And Colfax acknowledged that police departments won't go along with some of the proposals. "Nobody likes to be put under greater scrutiny," he said.

Similarly, some state's attorneys - including Rock Island County's Marshall Douglas - are objecting to a recommendation in which a state panel would review local decisions to seek capital punishment. The state should not usurp local control, they argue, and the recommendation might not be constitutional.

Constitutional questions aside, such objections are short-sighted. While the reforms suggested by the commission would result in fewer death sentences (and perhaps lower case-closure rates) and put new burdens on police and prosecutors, the end result would be higher confidence in the criminal-justice system because of fewer wrongful convictions, fewer overturned cases, and less doubt about circumstances under which evidence and confessions were secured.

Probably the biggest area of contention, though, will be the recommendation in the commission report to reduce the number of factors that trigger death-penalty eligibility from 20 to five. The change with the largest effect would be the criterion that makes people eligible for capital punishment if they kill a person during the commission of another felony. This is the most commonly used factor that prosecutors cite when asking for the death penalty; for example, if a store clerk is shot and dies during an armed robbery, the perpetrator is eligible for capital punishment.

Although this wouldn't abolish the death penalty, it would severely curtail its application, and that doesn't sit well with politicians, most of whom support the death penalty. "Nobody ever wants to be perceived as soft on crime," Kivisto said.

And here is just one example of a situation in which idealistic death-penalty reform collides with the political machine. Backers of systemic death-penalty reform will need to work hard if there is to be any chance that what comes out of the legislative process resembles what went in.

State Representative Joel Brunsvold (D-Rock Island) sits on the House Judiciary Committee, which will be holding hearings this summer on the death-penalty issue. Brunsvold would only address the report generally, but it's clear legislators will be taking a carving knife to the report. "Some of it's doable, some of it's not doable politically," he said.

The first item up for surgery is likely the reduction of factors that make a person eligible for the death penalty. Brunsvold said he thinks it might be possible to pass a reduction to a dozen or so factors, but he doesn't believe it's possible to fully implement the recommendation. (In addition, both the Republican and Democratic nominees for attorney general want to maintain the death penalty in a number of situations targeted by the commission.)

In some ways, though, that recommendation can be viewed as secondary. The commission's suggestions are designed primarily to ensure that innocent people aren't executed, and the scope of death-penalty-eligible situations is largely a question of constitutional law that will probably be decided by the Supreme Court eventually. (When it struck down the death penalty in 1972, the court determined that the application of the death penalty was arbitrary; the commission argues that because there are so many factors that make crimes death-penalty eligible, the current application is also arbitrary.)

Yet some people argue there's an important moral question tucked in the issue of death-penalty eligibility. While nobody would disagree that the innocent should not be executed, Kivisto said that there are degrees of severity in crime. There are many people on death row, Kivisto said, who are guilty of the crimes for which they were convicted, but reasonable people will disagree whether those crimes merit the death penalty. Narrowly restricting death-penalty eligibility is the best way to ensure that people in those gray areas don't end up on death row.

These are important, contentious questions of both morality and law that should be thoroughly debated and considered. But in the end, the holes in Illinois' death-penalty process can't be patched if the goal is a system with integrity. It needs to be re-built.

The legislature cannot approach the death penalty by approving recommendations it likes and discarding the rest. It needs to consider how all the commission's suggestions contribute to a system-wide approach. As Colfax said, "The temptation to enact a few token high-profile reforms should be resisted."

The report of the governor's Commission on Capital Punishment is available in .pdf here.

Death Penalty Focus is an anti-death-penalty organization whose Web site is located here.

The Illinois Death Penalty Education Project has its Web site here.

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