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State of the State: Things aren't what they seem in the death penalty moratorium

Aaron Chambers
WUIS/Illinois Issues

Appearances are everything. Gov. George Ryan's moratorium on executions appears to have stopped in its tracks a flawed capital punishment system. He ordered a committee to review administration of the death penalty and said he won't sign off on more executions until he's been assured the system is fixed.

But a little more than a year after Ryan declared his moratorium, questions remain about whether he has the authority to issue a blanket stay on executions; the extent to which the force of the moratorium depends on cooperation from Illinois Attorney General Jim Ryan; and how, if at all, changes to the system might affect those already on Death Row. 

The governor called the moratorium last January, saying the state's system was broken and he feared an innocent person could be executed. Thirteen people have been freed from Death Row, one more than have been executed since Illinois reinstated the death penalty in 1977. 

Reform is under way. The Illinois Supreme Court in January adopted a series of proposals recommended by a special committee it created to study the death penalty. Ryan also asked his commission to consider whether the system can be improved. 

Meanwhile the moratorium received support here and abroad. Romans celebrated by lighting candles in the Colosseum. Harvard Law School and the American Bar Association, which has called on all jurisdictions to cease executions until safeguards are in place, invited Ryan to speak.

Over the past year, a handful of other states instituted reviews of their death penalty systems, while some considered legislation to impose moratoriums of their own or abolish the death penalty altogether. In Washington, congressional lawmakers frequently cited Ryan and Illinois' moratorium in debate over measures designed to reform the criminal justice system.

But international publicity aside, players in this state's criminal justice system disagree over whether the governor has the constitutional authority to declare a blanket moratorium. Along those lines, some suggest the attorney general's decision not to request execution dates while the moratorium is pending gives the move practical effect by holding up the capital punishment process. At the very least, they say, the attorney general's decision gives political cover to the governor, intentional or not, by ensuring he won't have to stay the execution of someone perceived as a vicious murderer.

Johnny Neal Jr., for example, stands convicted of beating an elderly woman to death with a pipe. Harry Gosier was convicted of murdering his wife's sister and mother. James Ashford was convicted of murdering four people during a robbery. 

"The attorney general, by not asking the Supreme Court for a death date, on a case-by-case basis, does not require the governor to play his hand," says Kevin Lyons, Peoria County state's attorney and a critic of the moratorium.

As for the governor's authority, the state Constitution has this to say: The governor "may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper."

Ryan spokesman Dennis Culloton says that through the power of reprieve, the governor can effect a moratorium. As the chief executive must sign off on each execution, Culloton says, the governor would simply stay each execution until he is satisfied the system has been fixed.

Yet many observers argue the framers of the Constitution did not intend the power of reprieve to be used to effect an across-the-board stay. Lyons and other critics, including retired Supreme Court Justice James Heiple, argue executive privilege can be exercised only on a case-by-case basis and that the governor has overstepped his constitutional prerogative.

"Each case, whether it is a death penalty case or any other case, has to be decided on an individual basis," Heiple told the Small Newspaper Group last October. "You can't say, 'Well, the system is flawed, hence we aren't going to execute anyone,' because that does not address the individual case."

Yet, there doesn't appear to be any way opponents can challenge the moratorium.

"You could file a legal challenge and maybe get some court of law to say the governor has exercised his power in a fashion not intended by the framers of the Constitution," says DuPage County State's Attorney Joe Birkett. "The governor could then say, 'Well, here's the way it was intended and I'm saying that with X defendant no execution date will be set.'"

The debate remains largely academic, though, so long as the attorney general stands by his pledge not to ask for execution dates while the moratorium is pending. 

And that is within the attorney general's powers. Once a defendant sentenced to death has exhausted his appeals, it's up to the attorney general to ask the Illinois Supreme Court to set an execution date. If the court decides to set a date, the case then goes to the governor. It's at that point that the governor must decide whether to sign off on an execution. He can let it go forward or grant a reprieve, commutation or pardon.

The attorney general made his decision not to ask for execution dates almost immediately after the governor made his, says attorney general spokesman Dan Curry, because he thought it would be imprudent to ask for death dates when the governor said he would simply stay each execution. "Why should he initiate legal proceedings that are going to be halted?" he asks.

But, as some note, the governor, hailed around the world as a reformer, would almost certainly take heat for blocking executions of inmates whose crimes were especially heinous. Instead, over the past year, the spotlight has focused on reforming a "broken" system. That mood could shift if the focus were to become justice for crime victims.

Then there's the question of the prisoners who are already on Death Row. Will procedural changes in the state's death penalty system be applied to those convicted and sentenced under a system the governor calls flawed? 

"I don't know the answer, but I don't think the answer is we should forget about them," says Marshall Hartman, who directs the Capital Litigation Division at the state appellate defender's office. "I don't think you can just say, 'Well, we'll kill these. Maybe a few will be innocent. Maybe a few will be wrongly convicted. But what the heck.' No, you can't do that. You either have to vacate all the death sentences or go back and look at them all."

For his part, Culloton couldn't say whether the governor's commission would examine each of the 165 pending death penalty cases or how rules could be implemented to "protect" inmates from flaws cited by the governor last January. "I really can't speculate right now," he says. "The entire system is fair game for the commission to review."

Whether current inmates will be able to use new procedural rules depends on the particular rule, the circumstances of the inmate's case and where the inmate is within the appeals process. Trying to determine the likelihood of any inmate being able to take advantage of any changes is largely speculative.

Some legal experts argue the chances are small as changes will likely deal with procedures at trial, at sentencing and at the post-conviction level. Still, it's possible for an inmate to receive a new trial, sentencing hearing or alternative relief at any stage of appeal. 

"Anybody at any time in the process may end up either with a new sentencing hearing or a new trial," says Thomas Fitzgerald, an Illinois Supreme Court justice who, as a Cook County circuit court judge, chaired the special Supreme Court committee on the death penalty. "It really depends on the rule, and any rule is potentially helpful to any defendant."

There are inmates whose options for appeal are limited and whose cases would likely be before the governor if not for the moratorium. According to the state Department of Corrections, there are 161 men and four women on Death Row in Illinois. Of those, 14 have exhausted or nearly exhausted their appeals, according to the attorney general's office, and the state could ask for execution dates in seven of the cases at any time.

Curry says the attorney general gave no assurance to the governor that he would stop asking for death dates and he also says the decision was not intended to give the governor political cover.

Still, Lyons and others who insist the moratorium has no legal basis argue it is "practically contingent" on the attorney general's decision, in as much as he is holding up the process of capital punishment. The attorney general, Lyons says, should ask for death dates and let the governor deal with each case.

Meanwhile, the state's condemned population continues to grow. Since last January, 10 people have been sentenced to death, according to the Illinois Death Penalty Moratorium Project, a group opposed to the continued use of capital punishment. That's because the moratorium does not preclude Illinois prosecutors from seeking the death penalty or courts from imposing it.

In politics, things are not always what they seem.

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