Capital punishment in Illinois in the aftermath of the Ryan commutations: reforms, economic realities, and a new saliency for issues of cost.

• Author: Bienen, Leigh B.

1. INTRODUCTION

   When I first came to Illinois from New Jersey in 1995, nothing suggested change was coming in the pattern or practice of capital punishment in Illinois. There were more than 160 people on death row in Illinois. (2) By contrast, in 1996 New Jersey had twelve people on death row. (3) The New Jersey Office of the Public Defender had a strong statewide administrative structure and a centralized budget. The New Jersey Department of the Public Advocate spent millions of dollars for defense attorneys to challenge every aspect of every death sentence imposed after reenactment in 1982. (4) The public defenders then brought each death sentence to the extraordinarily conscientious New Jersey Supreme Court for constitutional review and proportionality analysis. (5) Capital practice in Illinois had none of these institutionalized traditions.

   Nor was there any state court or institution in Illinois that would have been inclined to or capable of undertaking the kind of comprehensive system-wide review and analysis of capital case processing such as that conducted by the New Jersey Supreme Court under the rubric of proportionality review. The Illinois Supreme Court was unreceptive to constitutional challenges to the statute or to the system. (6) Since the 1970s the court has consistently refused to consider constitutional challenges to the application of the statute based upon evidence of racial or geographic disparities in death penalty prosecutions and sentencing. (7) There were brief moments, first in 1979 and then again in 1984, when the constitutionality of capital punishment was a live issue before the Illinois Supreme Court and federal courts in Illinois. (8) However, since that time the Illinois Supreme Court has indicated in numerous opinions and through other institutional signals that it is uninterested in any system-wide challenge to the capital punishment system. (9)

   In 1984, the United States Supreme Court ruled that statewide proportionality review was not required in order to comply with the Fourteenth and Eighth Amendments to the United States Constitution. (10) Since then the Illinois Supreme Court has repeatedly declared that it need not and would not in the future use proportionality review to conduct a systematic statewide analysis of the patterns in the application of the death penalty arising from the fact that the 102 elected county state's attorneys each individually select cases for capital prosecution. (11) The state high court has regularly affirmed death sentences, and has expressed the view that the scope of its review would be purely procedural. (12) However, an external study of Illinois death sentences found that as of 1995, 40% of the death sentences that reached the stage of federal habeas corpus under the former, more permissive federal rules were remanded for retrial or resentencing. (13)

   In 1995, capital punishment was firmly entrenched in Illinois and appeared impregnable* Public support for the death penalty was high. (14) No strong legal institutions or powerful political constituencies challenged it. The 102 elected county prosecutors, the state legislators, the attorney general, and the Governor all were strong supporters, and Illinois had begun conducting executions. (15) No court or legal authority in the jurisdiction seemed likely to interfere with the steady accumulation of death sentences coming up from the county prosecutions or the inevitability of future executions. Capital cases continued to be prosecuted; death sentences were imposed in the trial courts and affirmed on appeal; although the appeals took a while, executions had begun, and the prospect was only of more impending executions. (16) Given the breadth and number of the aggravating factors in the Illinois death penalty statute, (17) it seemed in 1995 as if there was always a capital case being zealously investigated and prosecuted, or an execution on deck. Nothing seemed poised to interfere with that progression.

   By the year 2000, however, everything had changed. In 1999, Governor George Ryan had been elected, though he was at that time a supporter of capital punishment. As a legislator, Governor Ryan had voted for the reenactment of the death penalty, and in March of 1999, soon after taking office, he presided over an execution. (18) However, accumulating egregious evidence of many wrongfully convicted persons on death row in Illinois led Governor Ryan to impose unilaterally a moratorium on executions in the state as of January 2000. (19) Illinois was the first state to impose such a moratorium, but since 2000, several other states have done so. (20)

   Then the legislature established the Capital Litigation Trust Fund in 1999, effective in 2000. This fund was created partly in response to the highly publicized exonerations and the large number of innocent people found on death row in Illinois. (21) By 1999, thirteen death row inmates had been exonerated by independent investigations of the facts supporting their convictions, including revelations that their confessions were coerced, and DNA tests had identified others as the actual murderers. (22) Next, in 2000 Governor Ryan appointed a high profile Governor's Commission on Capital Punishment (Governor's Commission or Commission). The Commission was composed of respected members of the bar with a variety of backgrounds and perspectives, and reported its findings in April 2002. (23) In January 2003, Governor Ryan responded most dramatically to these findings by taking the unprecedented, historic step of commuting 161 capital sentences in one fell swoop, emptying the Illinois death row. (24)

   These actions were completely contrary to the seemingly unshakable and widespread support for the current system of capital punishment in the state legislature, in the courts, and throughout other legal institutions in the state. The 2000 moratorium on executions and the 2003 commutations were without state or national precedent, and introduced an entirely new dynamic into the state capital punishment system. (25) Both events had enormous repercussions in Illinois and elsewhere. Other states also found innocent people on death row and declared moratoriums on executions in what became a cascading, national phenomenon. (26) At the same time, some state courts imposed a statewide moratorium on executions while state and federal litigation over the constitutionality of lethal injection as a mode of execution was pending. (27) This called to an immediate halt executions in the state without waiting for action by the legislature or the governor. Soon the death penalty had been put on hold by courts throughout the country. (28)

   The cost of the death penalty has recently become a salient issue nationally because many states are in budget crisis, including Illinois, which has one of the largest budget deficits in the country. (29) Illinois has never conducted a systematic study of the cost of the death penalty. The 2002 Governor's Commission focused on and found significant racial and geographic disparities in the operation of the Illinois capital punishment system, but did not address the issue of cost. (30) Indeed, until recently, discussions of cost were not considered relevant to the issue of the reenactment or maintenance of the death penalty, and some continue to hold the view that the higher cost of sentencing someone to death should not be a factor for legislators or prosecutors to consider. (31) Yet at a time when state governments are not meeting their most basic obligations, how can the state's policy of maintaining capital punishment alone be immune to considerations of cost and relative value?

   This Article references systematic cost studies from other states and reports how other states have addressed the issue of cost. (32) There is no reason to think that the capital punishment system in Illinois is unique or different. What other state studies have documented emperically is also observed in Illinois:

   * large trial and appellate costs associated with the prosecution and appeal of capital cases, followed by capital retrials; delays in the carrying out of death sentences, with new and repeated challenges to the procedures for imposing the death penalty continually brought forward in the federal and state courts; (33)

   * additional corrections costs associated with maintaining a special segregated death row, with its own legally mandated requirements for security and access to legal counsel, increased costs associated with long pretrial incarcerations, and special training and personnel required for staff during capital trials and after the imposition of the death penalty; (34)

   * large payments to judges, court personnel, defense lawyers, state's attorneys, and appellate lawyers on both sides to comply with the complicated and demanding requirements of capital trials and their direct and collateral appeals; (35)

   * arbitrary patterns in the selection of cases for capital prosecution and the imposition of the death penalty within the state, wide county disparities in policies and implementation, and vast differences in how capital punishment is prosecuted between states and within individual states; (36)

   * a decline in the number of murders unrelated to the imposition of the death penalty, (37) a decline in the number of death sentences imposed, and a decline in the number of state executions during the period 2000-2009, along with an increase in the time to execution for those states which do carry out executions; (38) and

   * a large number and proportion of exonerations relative to the number of persons sentenced to death, executed, or both, calling into question the effectiveness of the death penalty as a deterrent, as an example of rational punishment, or as an imposition of a just result. (39)

   Some of these developments are chronicled here for Illinois, particularly the documented costs and the current and recurrent patterns and practices in...