Foreword: from William Henry Furman to Anthony Porter: the changing face of the death penalty debate.

• Author: Hall, Bradley R.

On January 11, 2003, Illinois Governor George Ryan visited Northwestern University School of Law and proclaimed:

[Because of] questions about the fairness of ... sentencing; because of the spectacular failure to reform the system; because we have seen justice delayed for countless death row inmates with potentially meritorious claims; because the Illinois death penalty system is arbitrary and capricious--and therefore immoral--I no longer shall tinker with the machinery of death.... The legislature couldn't reform it. Lawmakers won't repeal it. But I will not stand for it. I must act. Our capital system is haunted by the demon of error--error in determining guilt, and error in determining who among the guilty deserves to die. Because of all of these reasons today I am commuting the sentences of all death row inmates. (1) With that, Ryan emptied Illinois's death row, potentially sparing the lives of 167 people. (2)

This was arguably the most significant moment in the recent history of the capital punishment debate. (3) Not since the landmark Supreme Court case of Furman v. Georgia (4) had so many death sentences been set aside in a single instant, and never before had an executive issued such a sweeping act of clemency in the death penalty context. (5)

But perhaps more important than the scope of Ryan's clemency decision was its rationale. Whereas Furman rested primarily on the arbitrariness of the death penalty, (6) Ryan was motivated mainly by wrongful convictions. A spate of exonerations, particularly in capital cases, had compelled him to reevaluate his support for the death penalty, and ultimately to reject it.

Countless others have also awakened to the frightening idea that our justice system is capable of convicting innocent people and sending them to their deaths. As Joseph L. Hoffmann notes, this realization has transformed the entire focus of the debate:

This crisis of confidence has produced a massive shift in the terms of the national death-penalty debate. Ten years ago, that debate was dominated by moral/religious arguments, by disputed claims about the extent of personal moral responsibility and free will manifested by capital defendants, and by concerns about distributional injustice in death sentencing. Today, the debate has re-focused on substantive issues of guilt and innocence: DNA exoneration evidence, mistaken eyewitnesses, lying informants, and the real or perceived risk of executing an innocent person. (7) The most obvious manifestation of this "massive shift" has been in the movement to limit or abolish the death penalty, which has gained new traction nationwide. But the focus on substantive guilt and innocence issues has also impacted efforts to expand the use of the death penalty, in Massachusetts, for example, Governor Mitt Romney established a commission to study ways in which that state could reintroduce the death penalty while ensuring accuracy. (8) And in Michigan, home to the oldest ban on capital punishment in the English-speaking world, (9) legislators have pushed for an amendment to the state constitution that would allow the death penalty in cases where the defendant's guilt can be proven to "a moral certainty." (10) These are only a few examples of a clear trend in the death penalty debate, with the focus shifting away from moral and procedural considerations, and toward the more substantive question of guilt and innocence.

Several months ago, the Journal of Criminal Law and Criminology set out to explore this trend and its impact on the larger capital punishment debate. After soliciting articles from a number of prominent professors and practitioners, we hosted a public symposium at Northwestern University School of Law in Chicago. The symposium brought the authors together to present their articles for review, ahead of publication in this issue of the Journal. As the articles demonstrate, each participant approached the topic from a unique angle, thus contributing to a balanced, practical, and interesting debate.

Rob Warden, an accomplished journalist and Executive Director of Northwestern's Center on Wrongful Convictions, gives a detailed account of the events leading up to mass clemency in Illinois and the subsequent overhaul of the state's capital punishment system. He describes the strategic planning, hard work, cooperation, and good luck that contributed to an entire reform movement focused on wrongful convictions. Warden's article, Illinois Death Penalty Reform: How It Happened, What It Promises, (11) conveys, in the authors words, "not only the reforms and their import but also the evolution and social context of the movement that brought them about--a movement that, for the first time in American history, spawned an effective constituency for the wrongfully convicted." (12)

Jeffrey Fagan and Valerie West, whose previous death penalty work has been among the most important in the field, (13) have made another significant contribution to this debate with their article, The Decline of the Juvenile Death Penalty." Scientific Evidence of Evolving Norms. (14) Publication of this article coincides with the United States Supreme Court's decision, in the case of Roper v. Simmons, (15) that "evolving standards of decency that mark the progress of a maturing society" prohibit the execution of juvenile offenders. (16) After a careful examination of nationwide trends in imposition of the death penalty, as well as the sources of these trends, the authors conclude that the Supreme Court is on firm empirical ground: "There is compelling evidence, even in the states that theoretically permit the use of the juvenile death penalty, of an emerging societal norm opposing the death penalty for juvenile offenders...." (17) There is also evidence...