Rep. Jack Davis wanted to add one more capital crime. Too many children were being killed, he said, and their murderers should pay with their lives.
The Beecher Republican was trying to convince the Illinois House the time had come to expand the scope of the death penalty statute they had enacted a few years earlier. Child killers, he argued, deserve the same fate as cop killers and contract murderers and the five other types of offenders the legislature had identified as terrible enough to deserve this state’s ultimate punishment.
“If you invoked the death penalty for these people, then you certainly should invoke the death penalty as a deterrent factor — and, yes, society demands some vengeance — for those people who have murdered children under the age of 16, and those people who have murdered those children after a history of abusing that child or torturing that child or feeding that child whiskey or drugs to the ultimate demise of that child,” he told his colleagues.
Davis evidently was persuasive. The House voted 124 to 30 in favor of his measure. The Senate and the governor agreed. And Illinois added death penalty eligibility factor No. 8.
That was 1981. Since Davis won his case against child killers, state officials have added 12 other kinds of murder to the eligibility list, bringing the total to 20. Murdering a schoolteacher or shooting and killing someone from a vehicle, for example, can now qualify a defendant for death. So can killing a community policing volunteer or killing somebody in a “cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design.” Along the way, lawmakers also fiddled with the language that spells out each eligibility factor. For instance, they narrowed Davis’ amendment so that it would apply only in cases where the victim is younger than 12. And they expanded the enumerated felonies that, when committed together with murder, can qualify a defendant for death.
But now the entire list of death-qualifying circumstances is at the center of a widening debate that could come to a head this fall. That’s when lawmakers, who are pressing to add yet another type of murder to the statute, will consider Gov. George Ryan’s veto of the legislation they approved last spring. Ryan, who called a moratorium on state executions in January 2000 after 13 men on Death Row were exonerated, says the list of eligibility factors may already be too long.
At the same time, a special commission, poised to recommend changes in the state’s death penalty system, has been reviewing that list with an eye to possible refinements. And the Illinois Supreme Court could consider whether the broadening scope of the statute has rendered it unconstitutional on its face.
To be eligible for a death sentence in Illinois, a defendant must be convicted of first degree murder and meet at least one of the eligibility, or “aggravating,” factors. If a judge or jury finds the defendant eligible for death, then a sentencing authority must weigh aggravating factors against any number of so-called “mitigating” factors, such as when a defendant has no significant history of criminal activity. If there are no sufficient mitigating factors, then the court must sentence the defendant to death.
This framework — like those in other states — was designed to comply with the U.S. Supreme Court’s decision in Furman v. Georgia and that decision’s progeny. The 1972 decision in Furman held that capital punishment, as it was administered in Georgia and Texas, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth amendments because it could be arbitrarily applied. That decision effectively invalidated the death penalty. Subsequent decisions have held that a state’s sentencing scheme must narrow the class of people eligible for the death penalty. The statutes also must give judges and juries clear guidelines for determining an appropriate sentence.
Illinois’ current death penalty law was enacted in 1977. In its original form, it provided seven eligibility factors, circumstances in a murder that the legislature deemed heinous enough to deserve death, including killing a police officer, killing under contract and killing in the course of a felony.
Lawmakers now have agreed that gang-related killings are heinous enough, too. And when they return to Springfield next month, they could disregard the governor’s objections on that point.
Last spring, the legislature voted overwhelmingly to add factor No. 21 — when the offender commits murder “in furtherance of the activities of an organized gang.” The measure’s sponsor, Rep. Susana Mendoza, says it was prompted by a gang-related murder in her district, and that it would deter future gang-related violence. The Chicago Democrat promises to attempt to override the governor’s veto. To do that, she would need support from three-fifths of the members in each chamber — 36 in the Senate and 71 in the House.
The governor, who voted for the death penalty when he was in the legislature 25 years ago, has since raised concerns about the administration of that system. When he called the moratorium, he said he feared an innocent person could be executed. At the same time, he formed the commission to review the system and said he wouldn’t sign off on more executions until the panel returned with recommendations for change. In vetoing Mendoza’s measure, he said that while it represents a “well-meaning effort to address serious gang activity,” it is “misdirected in light of existing laws, constitutional concerns and our past history of erroneously sentencing individuals to death.”
In his written explanation to lawmakers, Ryan argued the existing death penalty statute covers most serious gang activity that results in murder. Murders committed during various drug offenses, for example, are punishable by death. So is murder while committing one of several felony offenses and killing a police officer. Further, Ryan complained that the scope of the proposed language pertaining to gang activities is too broad and that it could discriminate against racial and ethnic minorities.
And he had another concern. “Moreover, as we continue to almost annually add eligibility factors to our death penalty statute, we introduce more arbitrariness and discretion and edge ever closer to our previous capital punishment system that was effectively held unconstitutional by the United States Supreme Court in 1972,” he wrote. “Over the last year, I have heard from prosecutors, judges and defense attorneys who have suggested we already have far too many eligibility factors under our existing capital punishment statute.”
If lawmakers stick by the votes they cast last spring, Mendoza will prevail. Her measure passed with 44 votes in the Senate and 77 in the House. “I’m looking forward to my colleagues standing by their vote on that,” she says.
Still, the governor could get some extra ammunition as early as this month, when his commission is expected to release its recommendations for reforming the death penalty system. Panel members, including former federal Judge Frank McGarr, the commission’s chair, former U.S. Sen. Paul Simon and former U.S. Attorney Thomas Sullivan, have studied several aspects of the capital punishment law, not just the aggravating factors. Nonetheless, eligibility for the death sentence has been a subject of intense scrutiny and debate within the commission.
The state’s high court could weigh in on the matter, too. The justices are considering at least two cases in which Death Row inmates argue that having so many eligibility factors has rendered the death penalty statute unconstitutional on its face. Essentially, the defendants maintain that, while each aggravating factor separately may narrow the class of people who are eligible for death, collectively they encompass the circumstances of most conceivable murders, making the statute as a whole unconstitutional. They argue the statute has become so broad that the intent of the law, to limit the cases where death may be imposed, has been negated. “The situation is now that there are so many exceptions to the rule that they have swamped the rule,” says Charles Hoffman, an assistant appellate defender challenging the law on behalf of Death Row inmate Raul Ceja.
After the 13 men were found to have been wrongfully convicted and sentenced to death in this state, all three branches of government took steps to reform the system. The governor called the moratorium and formed his commission. The legislature set aside about $14 million per year to help cover capital litigation expenses for poor defendants. And the high court implemented a series of safeguards, including requiring most attorneys handling capital cases to meet minimum standards.
But now, Illinois officials not only must wrestle with so-called prosecutorial misconduct, ineffective assistance of defense counsel and a host of other problems associated with the administration of capital punishment, they might have to consider whether the legislature has gone too far in its attempts to punish the worst offenders.
Of course, there are political considerations. It’s no secret that by voting for aggravating factors, lawmakers help build their tough-on-crime images. Even the legislator who sponsored the first additional aggravating factor admits as much. “A lot of that was press and showmanship,” Davis says about all of the factors that have been added. “It was for the folks back home at election time.”
Indeed, lawmakers apparently are more interested than prosecutors in the list of death-qualifying crimes. The majority of the statute’s 20 aggravating factors have not been used widely, if at all, to make defendants eligible for death.
Reported decisions by the Illinois Supreme Court, to which defendants sentenced to death can automatically appeal their cases, have referred to only nine of the factors, says Bernard Murray, chief of the criminal prosecutions bureau at the Cook County state’s attorney’s office. Those reported factors include six of the original seven, as well as killing a child, premeditated murder and murder involving torture, he says. The remaining 11 — all but two added since 1990 — have not been reported. Killing someone during a hijacking, which took effect in 1977, and killing someone during any one of various drug offenses, which took effect in 1990, have not been reported.
And an analysis circulated within the gubernatorial death penalty commission indicates that prosecutors have overwhelmingly favored two aggravating factors. The analysis, which covered 261 capital cases, found aggravating factors were used 391 times to make defendants eligible for death (defendants can meet more than one factor). And of those 391 instances, prosecutors used committing a murder in the course of a felony 44 percent of the time, and committing two or more murders 36 percent of the time.
“[The eligibility factors] are all well-intended,” says Peoria County State’s Attorney Kevin Lyons, “but when it comes to practically applying them, they are for the most part set on the shelf by prosecutors.”
Meanwhile, outside the courtroom, leading prosecutors question whether the death penalty statute is too broad. “Anything we can do to narrow the scope and raise the bar and make sure [the system] is more fair and accurate, I would support,” Republican Attorney General Jim Ryan, a candidate for governor, told the Chicago Sun-Times in August. “We have to be certain that the person that ultimately is executed is guilty and had full access to the courts. ‘Narrowing the scope’ means to make sure that we’re only executing the worst of the worst.”
More specifically, the attorney general would like to see fewer aggravating factors, according to spokesman Dan Curry, because Ryan believes that more factors can lead to more people being sent to Death Row. “One of the ways that we can increase the fairness and accuracy of the system is to subject fewer people to the death penalty system,” he says.
But while the comprehensiveness of the death-qualifying list has created constitutional concerns, the number of aggravating circumstances doesn’t appear to have coincided with more people on Death Row. Still, Curry says, the issue does deserve closer study. Cook County State’s Attorney Richard Devine, who for a time considered running for governor on the Democratic ticket, also “believes there may be too many qualifying factors for the death penalty, and that we should examine that number,” says Marcy O’Boyle, his spokeswoman.
The political climate surrounding the death penalty may be softening. As recently as a few years ago, it was not popular to talk about reforming the system in any way. In fact, such talk could spell trouble for anyone seeking elected office. Still, this reform-minded mood has yet to take hold in the legislature. Many lawmakers are happy to vote for additional aggravating factors; it’s likely they would be reluctant to scale back the existing law.
That law, with its death-qualifying factors, is governed largely by Furman, the decision that struck down death penalty statutes across the country as constituting cruel and unusual punishment. The principles set forth were refined in subsequent decisions. The five justices who formed the majority in Furman, detailing their reasoning in separate opinions, said the death penalty had been implemented in an “arbitrary and capricious” manner, had been “wantonly and freakishly” imposed and had been applied selectively to minorities.
Following that decision, states reconstructed their death penalty statutes in an effort to comply with the principles the justices set forth. Those statutes then made their way back up to the court and, in 1976, the justices ruled in Gregg v. Georgia that that state had managed to craft a death penalty law that met the constitutional test. Concerns expressed in Furman that the death penalty not be imposed in an “arbitrary or capricious manner,” as three justices wrote, were met by a statute that gives a judge or jury adequate information to impose punishment. The justices said a bifurcated sentencing hearing, such as the one later implemented in Illinois, is preferable. The Georgia statute also met the test, they wrote, because it required the sentencing authority to consider the crime’s circumstances and the defendant’s character before recommending sentencing.
In decisions that followed, the court reiterated that under Furman and Gregg, “an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”
The nascent argument in this state is that Illinois’ statute cannot be permitted under those decisions because it no longer truly limits the circumstances under which convicted murderers can face the death penalty.
“Indeed, the high number of aggravating factors so greatly expands the class of death-eligible defendants that it is difficult to imagine a first degree murder defendant who does not qualify under at least one, if not several, factors,” wrote Kathryn Saltmarsh, an assistant appellate defender who represents Death Row inmate Mark Ballard, in her brief to the state Supreme Court.
Neither the state nor the federal high court has specifically considered whether a state’s death penalty statute can be rendered unconstitutional because there are too many aggravating factors, according to attorneys handling the two Illinois Supreme Court cases.
For their part, prosecutors are in court defending the constitutionality of this state’s law. They argue the aggravating factors and the statute in general sufficiently narrow the class of people eligible for death. The parameters of the law’s application, they say, are clearly defined.
Assistant Attorney General David Iskowich, responding to arguments in the Ballard case, wrote that there are two classes of people — those under 18 years of age and those convicted of second degree murder — that statutorily cannot be eligible for the death penalty in Illinois. And he notes that several factors, such as murdering an emergency medical technician, would only apply in specific circumstances. “Ballard’s blanket statement that there are ‘too many’ capital eligibility factors is preposterous when a reading of the statutory factors shows that each provision is narrowly tailored to fit a specific set of facts or circumstances and, as such, each genuinely narrows the class of persons who can be eligible for capital punishment.”
Further, Iskowich points out that Illinois law requires the capital sentencing hearing to occur in two phases: the eligibility phase and the aggravation/mitigation phase, where the sentencing authority must decide whether the defendant should be sentenced to death. During that second phase, the state can invoke statutory aggravating factors or other circumstances not provided for by law.
Likewise, the defendant can offer both statutory and nonstatutory mitigating factors. That opportunity for the sentencing authority to consider the unique circumstances of each case, Iskowich argues, puts the law in line with the Eighth Amendment’s requirement that each case be individ-ually assessed. Curry, the attorney general’s spokesman, says there’s no conflict between the attorney general’s statutory obligation to defend state law in court and his attempt to exert influence on the legislative process to reshape that law.
For her part, Mendoza, the legislator who is sponsoring the proposal to add gang-related murders to the eligibility list, argues lawmakers have adequately scrutinized each of the additional factors and says she’s comfortable with the death penalty statute as a whole. “You’re always going to have arguments,” she says. “I think if you have five eligibility factors, you’re going to have people arguing it’s unconstitutional for one reason of another.”
And Sen. Carl Hawkinson, a Galesburg Republican and chairman of the Senate Judiciary Committee who is regarded as one of the top legal minds in the legislature, says, “I think those elements that have been enacted have been carefully considered and the argument that the number of them would render [the statute] unconstitutional is probably not a sound argument.”
Certainly, this isn’t the first time defense attorneys have challenged the statute. They are constantly trying different strategies for dismantling it. In fact, this state’s first post-Furman death penalty law was struck down as unconstitutional. That law required that a three-judge panel be convened to decide whether to sentence to death a defendant convicted of murder. The state Supreme Court ruled in 1975 that the provision intruded on a circuit court’s jurisdiction.
The state’s next death penalty statute, implemented in 1977, has survived, though the Illinois Supreme Court once came within a single vote of striking it down.
In 1979, the high court considered whether the death penalty statute violated the state Constitution’s separation of powers provision because the prosecutor has unfettered discretion to seek a special capital sentencing hearing after a defendant is found guilty of first degree murder.
In a typical criminal case, the judge decides the sentence after conviction, within statutory guidelines. But in a capital case, the prosecutor has sole discretion to ask for the special hearing, where a judge or jury must decide whether to sentence the defendant to death. The prosecutor, therefore, can preclude the imposition of a death sentence by not requesting such a hearing and, it was argued, is therefore unconstitutionally participating in the sentencing process.
But the high court disagreed. The majority wrote that prosecutors generally enjoy “wide discretion in both the initiation and the management of criminal litigation.” They rejected the separation of powers argument and a separate argument that letting the prosecutor decide whether to seek the sentencing hearing would lead to “arbitrary and capricious” action.
That decision was the closest the justices have come to striking down the current law. Three of the court’s seven justices disagreed with the majority opinion and said they would have invalidated the statute. But two years later, after Justice Seymour Simon joined the court, the dissenters declined to join their new colleague and strike down the law. Instead, when Simon adopted their argument in a 1981 decision, the three justices voted to uphold the law by adhering to stare decisis — the doctrine of precedent, which requires courts to follow earlier judicial decisions when the same points arise.
Even more recently, condemned inmate Donald Bull challenged the law after nine Death Row inmates had their convictions reversed and sentences vacated. He argued in 1998 that the law was flawed because of “the inevitability that innocent persons will be wrongly convicted of capital crimes and executed.”
The state high court responded that the American criminal justice system is not perfect, but it provides “maximum protection” against mistakes. The General Assembly and the court, the majority noted, had built additional safeguards into the system to protect defendants. The issue before the court, according to the majority, was whether Illinois law should provide the death penalty as punishment. And that, the justices concluded, was a question for the legislature.
Nevertheless, Justice Moses Harrison II, now chief justice, dissented from that opinion with words that helped make him, like the governor, a darling of the anti-capital punishment community. “If these [nine] men dodged the executioner, it was only because of luck and the dedication of the attorneys, reporters, family members and volunteers who labored to win their release,” he wrote. “They survived despite the criminal justice system, not because of it.”
Now the high court has a fresh opportunity to revisit the constitutionality of the state’s death penalty statute. The legislature has a shot at expanding the class of people eligible for death. And the lame duck governor, who has held up the death penalty process for nearly two years, can have a final word on the administration of this state’s ultimate punishment.
lllinois’ eligibility list
To be eligible for the death penalty in Illinois, a defendant must be convicted of first degree murder and meet at least one of 20 so-called “aggravating” factors. When this state reinstated the ultimate punishment in 1977, it provided seven such statutory factors. Since then, the legislature has added 13.
During the spring session, lawmakers voted to add one more — committing murder “in furtherance of the activities of an organized gang”— but Gov. George Ryan vetoed that measure and lawmakers are expected to reconsider it during their fall session, which begins in November.
Under the state’s capital punishment law, once a defendant is found eligible for death, a judge or jury must weigh aggravating and mitigating factors. If the sentencing authority concludes there are no mitigating factors sufficient to preclude the imposition of the death sentence, then the court must sentence the defendant to death.
Here’s an edited list of this state’s aggravating factors.
1. The victim was a police officer or firefighter and was killed in the course of duty, to prevent the performance of duty, or in retaliation for performing his or her duty.
Effective 1977.
2. The victim was employed by an institution or facility of the state Department of Corrections, or any similar local correctional agency, and was killed in the course of duty. Or the victim was an inmate at such an institution or facility.
Effective 1977.
3. The defendant, in connection with the deaths of two or more people, was convicted of first degree murder under Illinois law, another state’s law or federal law, regardless of whether the deaths were the result of the same or several acts.
Effective 1977.
4. The murdered individual was killed as a result of a hijacking of an airplane, train, ship, bus or other public conveyance.
Effective 1977.
5. The defendant committed a murder pursuant to a contract, agreement or understanding by which he or she was to receive money or anything of value in return for committing the murder, or the defendant procured another to commit the murder for money or anything of value.
Effective 1977.
6. The defendant murdered the victim in the course of one or more enumerated felony offenses. The defendant must have actually killed or injured the victim, and the defendant must have “acted with the intent to kill or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another.” The felonies include armed robbery, armed violence, robbery, predatory criminal sexual assault of a child, aggravated criminal sexual assault, aggravated kidnapping, aggravated vehicular hijacking, forcible detention, arson, aggravated arson, aggravated stalking, burglary, residential burglary, home invasion, calculated criminal drug conspiracy and street gang criminal drug conspiracy.
Effective 1977.
7. The defendant murdered the victim to prevent him or her from testifying in a criminal prosecution or giving material assistance to the state. Or the defendant murdered the victim because he or she was a witness in a prosecution or gave material assistance to the state.
Effective 1977.
8. The victim was under 12 years of age and the death resulted from “exceptionally brutal or heinous behavior indicative of wanton cruelty.”
Effective 1982.
9. The murder was committed in a “cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design.”
Effective 1989.
10. The defendant, while committing one of several drug offenses, or while engaged in a conspiracy or solicitation to commit such offense, murdered the victim or commanded the murder.
Effective 1990.
11. The defendant, while incarcerated, and while committing a felony or while engaged in a conspiracy or solicitation to commit such an offense, intentionally killed the victim or commanded the murder.
Effective 1992.
12. The victim was an emergency medical technician, paramedic, ambulance driver, or another medical assistance official, employed by a municipality or other governmental unit and was killed in the course of duty.
Effective 1993.
13. The defendant was a drug kingpin — the head of a criminal drug conspiracy — and caused or commanded the victim’s murder.
Effective 1994.
14. The murder was intentional and involved the use of torture.
Effective 1994.
15. The defendant shot the victim from a motor vehicle.
Effective 1995.
16. The victim was 60 years of age or older and the death resulted from “exceptionally brutal or heinous behavior indicative of wanton cruelty.”
Effective 1998.
17. The victim was physically or mentally disabled and the defendant knew or should have known that.
Effective 1998.
18. The victim was a community policing volunteer and the defendant murdered the victim to prevent him or her from engaging in that activity.
Effective 1999.
19. The victim had an order of protection pending against the
defendant.
Effective 1999.
20. The victim was a teacher or other person employed in any school and the victim was on school grounds or nearby.
Effective 2001.
Illinois Issues, October 2001
