There’s the ideal. There’s reality. Then there’s politics.
When Gov. George Ryan two years ago put a hold on Illinois executions and formed a commission to consider improvements in capital punishment, he inspired visions of perfection. The public, which had been juggling images of innocent people clogging Death Row, was suddenly contemplating a regenerated, error-free death penalty.
The moratorium, imposed when 13 condemned men were found to be wrongly convicted, was heralded around the world as Ryan focused attention on such concerns as overzealous prosecutors, incompetent defense counsel and dependence on notor- iously unreliable eyewitness testimony.
Last month, Maryland’s governor called a moratorium of his own. Another 15 states have considered, but not imposed, such a halt.
In a television documentary on the nation’s death penalty woes filmed shortly after he called the moratorium, Ryan told producer Bill Kurtis that the public demands “fairness and accur-acy” in capital punishment. “I don’t have to say this — it goes without saying — but if we’re going to have a system, it’s got to be perfect,” Ryan said. “Can we have a system that is? I don’t know at this point.”
Perfection — no chance of error in the administration of justice — would be ideal. But reality is that it can’t be perfect because it depends on the work of human beings. All of the players in the criminal justice system can perform their parts to the best of their abilities, but there still will exist a chance, however minute, that an innocent person will be sentenced to death.
“You have to concede the possibility of error because there is no such thing as an errorless human event,” says Frank McGarr, a former federal judge and chair of the governor’s commission. “But it is a risk so minimal that, like every risk you take in society every day, you just live with it. You don’t know when you leave the house that you’re going to get to work, but you leave the house anyway.”
Perfection in capital punishment, as with other elements of criminal justice, is impossible to achieve. But there are measures that can minimize the chance for error.
This month, the General Assembly is scheduled to open hearings on reform proposals delivered by the governor’s commission. After completing a top-to-bottom study, the commission in April made 85 recommendations for change in the administration of the death penalty.
It concluded that “no system, given human nature and frailties, could ever be devised or construed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.” At the same time, the collective recommendations “would, if implemented, answer the governor’s call to enhance significantly the fairness, justice and accuracy of capital punishment in Illinois,” the commission said.
But this is where the horse-trading starts. Unlike the commission members, legislators have political considerations to weigh. And despite the commission’s wish to get all of its proposals written into law, lawmakers appear unlikely to adopt some of the boldest ideas. Since they received the commission’s report two months ago, they have given the recommendations a lukewarm reception.
Under one proposal, police would be required to videotape custodial interrogations of suspected murderers. Another proposal would create a board to review prospective capital cases. State’s attorneys would need to get that board’s permission to seek death in a murder case. The commission would do away with 15 of the 20 statutory factors used to qualify defendants for the death penalty, including murder in the course of a felony, one of the most popular. The commission also would require the Illinois Supreme Court to ensure each death sentence is proportionate to the crime.
But prosecutors, who carry substantial weight in the GOP-controlled state Senate, complain that requiring police to videotape interrogations would prove too burdensome. As for repealing eligibility factors to narrow the reach of the death penalty statute, lawmakers in both chambers say the factors, especially felony murder, were passed for good reasons and should be kept.
Lawmakers certainly have their own ideas about what’s necessary to improve capital punishment. And unlike the commission’s members, they must respond to certain constituencies. With the November general election looming, some legislators this spring were reluctant to cast votes that could be construed as pro-defendant or anti-law enforcement.
Ryan did push the General Assembly to take up the commission’s recommendations this spring. He tried to capitalize on any political momentum resulting from release of the report — the culmination of two years of study and, for lawmakers, suspense.
Lawmakers, however, decided to put off consideration. Noting the commission studied capital punishment for more than two years, Senate President James “Pate” Philip, a Wood Dale Republican, says there wasn’t ample time at the end of session. “We’re not going to rush into it, but we’re going to have some hearings on it,” he says. “We want some input from the state’s attorneys and judges.”
But any political momentum gener- ated by the recommendations and the legislation could fade over time, especially as lawmakers spend the summer collecting input from such special interests as prosecutors and dissecting the report’s individual proposals. That could translate into diluted death penalty reform, a troubling prospect for those who contend the system needs comprehensive repair.
“I don’t say that all 80 pages of it have to be enacted,” says McGarr, the commission chair, “but all the principle things we recommended are part of a very carefully constructed reform system. And if you leave any of them out, you leave a flaw in the system.”
Actually, there already are safeguards in place to strengthen the administration of justice relative to capital punishment. The standard for conviction in a death penalty case is the same as in noncapital cases — proof beyond a reasonable doubt — but capital cases in Illinois automatically are subjected to additional review by the state and federal supreme courts.
Further, the state Supreme Court last year implemented a series of new rules, including one that requires prosecutors to meet certain experience requirements before handling a capital case. In another effort to restore integrity to the system, the legislature two years ago created a trust fund to help pay for such death penalty trial expenses as retaining a forensic expert. This law was designed to alleviate the disparate quality of funding in death penalty cases.
Still, the gubernatorial commission’s report was the most anticipated of any death penalty reform effort. It contains the greatest analysis of capital punishment in Illinois and the most ambitious proposals. That puts the future of the death penalty before the legislature. Now the burden is on lawmakers to repair the system the governor calls “flawed”; they must decide whether to fashion a law in the image of the governor’s ideal.
“I think what you want is a system that does its very best to avoid errors, especially in capital cases,” says House Speaker Michael Madigan, a Chicago Democrat. “You’re not talking about minor matters; you’re talking about capital cases where a person’s life is on the line. So you want the system and the administration of the system to be as well done as humanly possible.”
Senate President Philip adds: “There is no perfect system; there’s always going to be a flaw. When you think you’ve got it fixed, things happen. But we ought to dot the I’s and cross the T’s. We ought to use DNA. We ought to use all those safeguards to make sure that person is guilty.”
Sen. Kirk Dillard, a Hinsdale Republican who sponsored the governor’s legislative package this spring, says the proposals could be voted on in the November veto session. “I would look for the governor [who leaves office in January] to really push us because he desperately wants to sign legislation during his term on the topic of the death penalty,” he says.
Perfection in capital punishment, as with other elements of criminal justice, is impossible to achieve.
Meanwhile, the governor says he’ll keep the moratorium in place until the legislature acts on the commission’s report. At the same time, he says he might commute to life in prison the sentences of some or all of the 160 people on Death Row. The commission’s proposed measures would not be retroactive, so inmates already on Death Row would not benefit.
Ryan says he would not use the threat of commutations to leverage lawmakers into passing his commission’s reforms. “I’m not running for any office; I’ve got nothing to do politically,” he says. “I’m talking about saving some innocent guy’s life who may be executed for a crime he didn’t commit.”
Clearly, Ryan is conflicted about the imperfect nature of the death penalty system. He wants perfection: “Why wouldn’t I want a perfect system? We’re talking about people living and dying.” But he hints he won’t get it: “If they put in a system that I think is good or without error, then we ought to give it a try for a while.”
He’s not the only one to struggle with this. In 1998, Chief Justice Moses Harrison of the Illinois Supreme Court wrote in a dissent that the death penalty law is unconstitutional because, he contends, an innocent person inevitably will be executed. A majority of the court disagreed, saying the Death Row inmate who raised the argument was simply attacking the American criminal justice system. “Indeed, in a sense, defendant’s protest is unanswerable,” Justice Charles Freeman wrote for the court. “Have mistakes been made? Will mistakes be made? Certainly.”
Lawmakers, of course, won’t say they are comfortable with the possibility that an innocent person could be executed. Rather, those who favor the ultimate punishment emphasize their position that the death penalty is appropriate in some cases and should be preserved.
Ultimately, the legislature may face the question of whether it should eliminate the death penalty because the risk of executing an innocent person is inherent in any such system. At least that’s what abolitionists hope. Yet, arguments to abandon capital punishment barely resonate in the General Assembly.
“This is a governmental system fashioned by human beings, and the current one was found to be ineffective,” Madigan says. “The current exercise is designed to try and correct the defects, which I’m sure everybody in the process would want to do, and they will do to the best of their ability.”
Illinois Issues, June 2002
