Illinois death penalty reform: how it happened, what it promises.

AuthorWarden, Rob

In January of 2003, three years after Governor George H. Ryan declared a moratorium on executions and ten months after he exercised his clemency and pardon power to empty the nation's eighth largest death row, (1) the Illinois General Assembly completed what the Chicago Tribune called an "historic reform of death penalty procedures in a state embarrassed by its penchant for choosing the wrong people to die." (2)

Indeed, of 289 defendants sentenced to death in Illinois after Furman v. Georgia, (3) seventeen had been exonerated and released--an error rate of 5.9%. An eighteenth former death row prisoner, Gordon Randy Steidl, would be exonerated in May of 2004, pushing the error rate above six percent. (4)

Mistakes in the determination of guilt, however, were only part of the story of the Illinois post-Furman experience with capital punishment. As a result of trial errors and omissions, appellate courts had vacated death sentences or ordered new trials for scores of additional death row prisoners. A landmark study found that forty-three percent of Illinois death penalty cases had been reversed on direct appeal or at the post-conviction stage as of 1995. Of the cases that graduated to the federal habeas corpus stage, the study found forty percent had been remanded for retrial or re-sentencing. (5)

When Governor Ryan cleaned out death row in 2003, the situation was this: Of the 289 men and women (five of the latter) who had been sentenced to death in the state since Furman, twelve had been executed, five had died of natural causes, one had been transferred to Indiana and executed there, thirteen had been exonerated and released from prison, eighty-six had been re-sentenced to something other than death, fourteen had won reversals and were awaiting retrial or re-sentencing, one had been granted executive clemency before Ryan took office, and 157 remained under death sentence. (6)

Stunningly, for each defendant executed in Illinois, 9.5 death sentences had been overturned. Furthermore, because that accounting reflected only mistakes that had been documented--caught, in other words--the actual magnitude of mistakes in the Illinois capital punishment system no doubt was somewhat greater than it ever would be possible to prove.

The capital exonerations illuminated a plethora of factors that contribute to wrongful convictions, the leading factor being snitch testimony--which I define expansively to include not only the testimony of jailhouse informants but also alleged accomplices, alternative suspects, and other witnesses who might be motivated to lie in order to protect friends or relatives. Prosecutors used testimony of that sort to win the convictions of fourteen of the eighteen Illinois capital case exonerees. (7)

The second most prominent factor was false confession, which, again, I define expansively to include not just alleged confessions of the defendants themselves but also those of co-defendants. Not included are cases of defendants who allegedly confessed to snitches--such as the case of Steven Manning, who was alleged to have made incriminating statements to an infamous jailhouse informant. (8) Included, however, are cases of defendants who were not alleged to have confessed personally but who were inculpated by the false confessions of co-defendants--such as Paula Gray, whose false confession to a rape and murder sent Verneal Jimerson to death row. By these criteria, the cases of eleven of the eighteen Illinois death row exonerees are false-confession cases, including eight cases in which prosecutors also employed snitch testimony. (9)

Among other recurring factors, which alone or in concert with other factors led to the wrongful Illinois capital convictions, were erroneous eyewitness identification testimony, forensic fraud or quackery, police perjury, ineffective assistance of counsel, and prosecutorial misconduct. (10)

The good news is that all of these factors have been addressed, at least to some extent, by the Illinois reforms, (11) which hold the promise--although only the promise at this point--of making the Illinois criminal justice system the fairest and most accurate in the nation. The package, to be sure, is no panacea for the ills of the criminal justice system. Some of the measures are tepid, some apply only to murder cases, and the efficacy of others will depend on how they are implemented--God, as Mies van der Rohe reminds us, is in the details.

In one sense, however, death penalty opponents and criminal justice reformers can take heart that the package leaves something to be desired: the reforms are insufficient in the eyes of Ryan's avowedly pro-death penalty successor, Governor Rod Blagojevich, (12) to justify lifting the moratorium on executions that Ryan ordered in early 2000. The result is to have no immediate prospect of executing anyone but to heighten the impetus for the General Assembly to strengthen the reforms.

For those who would replicate the Illinois result elsewhere, it may be useful to understand 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.

  1. THE REFORM PACKAGE

    The reform package comprises a wide-ranging bill overwhelmingly approved by the General Assembly in November of 2003, two narrower but nonetheless consequential bills approved earlier, and changes in Supreme Court rules.

    The most recent bill (13) authorizes judges to bar death sentences in cases resting on the testimony of a single eyewitness, informant, or accomplice, (14) creates a pilot project to test a new eyewitness identification protocol that could cut eyewitness error by as much as half, (15) requires trial judges to hold pretrial hearings on any jailhouse informant testimony offered by prosecutors, (16) establishes an administrative procedure for firing police officers who commit perjury, (17) gives the Illinois Supreme Court authority to set aside death sentences it deems "fundamentally unjust" even if there are no procedural grounds for relief, (18) simplifies jury instructions regarding appropriateness of the death penalty, (19) and creates an independent, sixteen-member Capital Punishment Reform Study Committee to assess the impact and effectiveness of the various reforms and report annually to the General Assembly. (20)

    The first of the earlier bills established a taxpayer-funded entity known as the Capital Litigation Trust Fund to provide, inter alia, substantially more money for defense and prosecution investigations and independent forensic testing in capital cases. (21) The second bill directed police throughout the state beginning in mid-2005 to electronically record custodial interrogations of murder suspects and directed trial courts to presume any non-recorded statement inadmissible, except under rare circumstances such as when a suspect agrees to answer questions only if an electronic recording is not made. (22)

    The changes in Supreme Court rules, which went into effect in 2001, established minimum standards of experience for attorneys representing capital defendants, (23) required special training for judges involved in capital litigation, (24) and laid down ethical rules for prosecutors, including a pointed reminder that the job of prosecutors is to seek justice--not win convictions. (25)

    As imposing as the package sounds, there is less to some of the measures than meets the eye. The eyewitness protocol, for instance, is not a reform but a test. There is no assurance that it will be implemented on a widespread or permanent basis. Pretrial hearings on jailhouse informant testimony and the new procedure for punishing police perjury do not guarantee the curtailment of either. It also is unclear how giving the Supreme Court authority to set aside "fundamentally unjust" death sentences expands its time-honored--if seldom used--authority to overturn "excessive" or "disparate" sentences. (26)

    Other pieces of the package unquestionably are momentous, however. The Capital Litigation Trust Fund, along with other developments, already has helped reduce the clip at which death sentences are imposed in Illinois--from about one a month to one every six months. The electronic recording measure surely will prove an effective safeguard against false confessions whether extracted by torture, psychologically coerced, or simply fabricated.

    Another measure with tremendous but unsung potential is the creation of the Capital Punishment Reform Study Committee. Its mandate is not only to assess the effectiveness of the reforms pertaining to the accuracy of determinations of guilt but also to assess whether death sentences are being imposed uniformly--whether the punishment inevitably fits the crime and is applied proportionately from one locale to another.

    Proportionality is an overwhelming question, with substantial ramifications for the future of the death penalty not only in Illinois but also in the other states with death penalties on their books. It was the issue that in Furman prompted the U.S. Supreme Court to overturn existing capital punishment laws, which, the court found, were being applied in an arbitrary, capricious, and racially discriminatory manner, in violation of the Eighth Amendment ban on cruel and unusual punishment.

    Furman produced a backlash in state legislatures, thirty-eight of which responded by enacting laws purporting to correct the Eighth Amendment problem by bifurcating capital trials into guilt-innocence and sentencing phases and by setting standards to guide juries and judges in the latter phase. (27) Despite substantial doubts that the prescribed cures could possibly work in practice, the U.S. Supreme Court and various state courts, including the Illinois Supreme Court, embraced the post-Furman laws. They did so, however, in a political climate that was less than conducive...

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