CAPITAL PUNISHMENT ON TRIAL.

• Author: LYONS, DONNA

EVEN THOUGH THE PUBLIC STRONGLY SUPPORTS THE DEATH PENALTY, QUESTIONS ARE BEING RAISED ABOUT THE FALLIBILITY, FAIRNESS AND FUNDING OF THE PROCESS.

On Sept. 21, 1999, Illinois' death row doors swung open for inmate Anthony Porter after 17 years in prison. Another man had confessed to the double murder for which Porter had been convicted.

Just the year before, Porter had come within a couple of days of death by lethal injection, but received a stay of execution when attorneys raised questions about his mental capacity. Following this and 12 other Illinois cases (85 nationally) in which death row inmates have been exonerated, the state became the first to suspend the death penalty pending examination of its fallibility.

"Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate," Republican Governor George Ryan declared in January at a Chicago news conference. The General Assembly has earmarked $20 million for improving capital justice, and Ryan's indefinite moratorium was followed by appointment of a committee to study flaws in the system and make recommendations to remedy them.

The Illinois governor's move was almost unprecedented. A year ago, the Nebraska Legislature tried to put a two-year moratorium on executions, but it was vetoed by Governor Mike Johanns, also a Republican. There, the debate centers on whether capital punishment is being applied fairly. After the veto, the Legislature approved a study of homicide cases in the state. The report, due in time for the 2001 session, is to analyze homicide cases spanning more than 25 years, including mitigating and aggravating circumstances; race, sex and economic status of the defendant and the victim; charges filed; result of the judicial proceeding; and the sentence imposed.

RACIAL FACTORS

In at least half a dozen other states, old issues are being raised anew about how and against whom capital punishment is carried out. Anti-death penalty activists long have maintained that race and economic circumstances of defendants as well as victims are disturbingly and disparately related to death sentences. The American Bar Association, in calling for a death penalty moratorium in 1997, cited as a major concern increasing evidence of racial disparity in prosecution or sentencing decisions.

In 1998, Kentucky lawmakers broke new ground in an act prohibiting the execution of a person when evidence establishes racial bias in prosecution or sentencing. The law also required the Kentucky Supreme Court and agencies to open records relating to the death penalty and its imposition. And recently, the federal Justice Department disclosed that a review is under way to determine whether there has been disparate treatment of racial minorities in handing down federal death sentences.

In Illinois, a Chicago Tribune investigation of 285 capital cases in that state described a pattern of inept defense counsel and questionable practices of prosecutors regarding forensic evidence and jury-seating. Around the states, such problems plague even rock solid death cases and extend what most agree is a cumbersome and costly appeals process.

Actions by lawmakers in states and Congress in recent years have sought to improve death sentencing and expedite appeals, with mixed results. Congress eliminated federal funding in 1995 to 20 death penalty resource centers, effectively closing the offices that provided representation to many death row inmates in their federal appeals. At the time, the taxpayer-funded, postconviction defender organizations were seen as contributing to a lengthy, costly appeals process by carrying out a series of legal maneuvers to stop executions.

That same mood was present at passage of the federal Anti-Terrorism and Effective Death Penalty Act of 1996, which restricted federal court review of capital cases. The act applied to state as well as federal prisoners, with the caveat that states provide competent counsel. A host of state legislatures followed with laws addressing competency of counsel and delay reduction in capital cases, but only a handful have centralized offices or teams of defenders funded for the purpose of death row representation. New York's $15 million a year Capital Defender Office is perhaps the best equipped among the states.

Similarly, 1997 legislation in California, sponsored by then-senator, now State Attorney General Bill Lockyer, created the California Habeus Resource Center. The judicial-branch office is designed to speed up death row appeals by providing for more and better paid attorneys to handle cases. State- and county-level public defenders, with varying workloads and experience, often represent death row defendants in...