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Wednesday, May 7, 2008 05:16 am

Killing time?

A recent US Supreme Court case restarts the debate about the death penalty in Illinois

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ADAPTED FROM AN ILLUSTRATION BY PAUL LACHINE

Two Kentucky death-row inmates — one convicted of killing a sheriff and a deputy sheriff, the other convicted of killing a couple and wounding their 2-year-old son — waited as nine United States Supreme Court justices filed into the room and delivered their verdict.

After nearly three months of deliberation, the high court ruled 7-2 in Baze v. Rees to reject the inmates’ claims that the use of the three-drug cocktail — sodium thiopental to sedate, pancuronium bromide to paralyze, and potassium chloride to stop the beating of the heart — in lethal injections amounts to cruel and unusual punishment. The landmark decision, handed down April 16, gives Kentucky and 36 other states, including Illinois, the green light to employ this method, but public officials say the Prairie State’s eight-year-old death-penalty moratorium keeps any immediate impact at arm’s length for now.

Instead, they say, the ruling could inject new vigor into the debate about the state’s system of capital punishment, its inherent flaws, and the ongoing work to revamp its policies and procedures.

Larry Golden, emeritus professor of political and legal studies at the University of Illinois at Springfield, didn’t pay much attention to the Supreme Court decision at first, he says, especially because the national controversy surrounding the three-drug cocktail wasn’t the motive for the Illinois moratorium.

“The moratorium in Illinois is a different animal,” Golden says. “It wasn’t based on the mode of punishment — it was based more on the fact that we were finding more and more within the state of Illinois that capital punishment had too many possibilities for error.”

Gov. George Ryan imposed a statewide moratorium on capital punishment in January 2000 after former death-row inmate Anthony Porter was found within 48 hours of his scheduled execution to have been innocent of the crime of which he’d been convicted. Thirteen other Illinois inmates on death row had also been deemed innocent — one more than the number executed since the death penalty was reinstated in 1977.

The Illinois Commission on Capital Punishment was formed to review problems in the system, and two years later the group provided 85 recommendations to the General Assembly. When legislators virtually ignored the proposals, Ryan issued blanket clemency to all 167 inmates on death row in Illinois. After Gov. Rod Blagojevich took office, in 2003, he signed legislation enacting several of the commission’s proposals and created the Capital Punishment Reform Study Committee to review the reforms annually for the next five years.

Blagojevich has said in the past that he’s not against capital punishment, but even though 15 inmates have been sentenced to death since Ryan’s mass pardon he shows no sign of lifting the moratorium.

Jane Bohman, executive director of the Illinois Coalition to Abolish the Death Penalty, says this attitude affirms that Illinois is moving in the right direction.

“When you’re talking about life or death and you’ve had such deep systemic problems,” Bohman says, “it’s important to see if the efforts are working or not before lifting the moratorium and allowing someone to be killed.”

Besides, she adds, any rush to lift the moratorium would overlook the reality of the situation, because the first death-row inmate won’t be through the appeals process for at least five more years.

ADAPTED FROM AN ILLUSTRATION BY PAUL LACHINE

A
lthough the Baze v. Rees decision may not tangibly affect Illinois, Golden says it will create a political atmosphere that intensifies public debate about capital punishment. Momentum against the death penalty, fueled partly by uncertainty over how the Supreme Court would rule in the Kentucky case, was building. Golden argues that because lethal injection was upheld and several states have now announced that they’re resuming executions, renewed national support for capital punishment could put future pressure on Illinois.

“We’ve gone through these waves and shifts in public perception with regard to capital punishment,” Golden says. “I think the concern now is that certainly places like Virginia, Texas, and Florida that are directly impacted by a legal standpoint are going to start up capital punishment again. “No one knows where that is going to go here. It can either elicit greater opposition or saying, ‘It works; we’re going to do it; that’s it.’ ”

For Bohman, the statistics speak for themselves.

She says the nature of the legal system is changing — more inmates are receiving lesser charges or even acquittals in capital trials than death sentences. According to ICADP, the number of death sentences in the past five years has ranged from a high of four in 2004 to a low of one in 2005 — on average, fewer than three a year. In 2007, only three men were sentenced to death in 64 capital cases resolved statewide.

Charles Hoffman has worked as an attorney with the Office of the State Appellate Defender since 1986 and agrees that the legality of the situation has changed drastically since Ryan cleared out death row. Up until 2003, his office was dealing with 12 to 15 cases a year, but currently he’s only working with one client.

Hoffman says horrific stories about capital cases over the past 20 years and the option of life without parole have influenced many judges and juries who previously thought that the death penalty was the only way to sufficiently protect Illinois citizens. Plus, he says, it’s usually now regarded more as retribution for victims’ families than as a deterrent against future crime.

“Judges and juries are not as enthusiastic about capital punishment,” Hoffman says. “It’s only 15 to 20 percent of what it used to be.”

Hoffman and other public officials say that this change in public opinion stems from flaws continuously being identified in Illinois’ system of capital punishment. He says that, regardless of the religious or ethical beliefs of employees in his office, almost everyone views the current death penalty as a waste of time and resources.

“It’s kind of like the proverbial working in the sausage factory,” Hoffman says. “When you see how the system works from the inside, whether you think the death penalty is valuable in theory, you learn in practice that it doesn’t do what it purports to do.”

Hoffman argues that one of the system’s main problems is its arbitrary nature. At one time Illinois had six factors, such as the murder of a peace officer or murder involving torture, that each of the 102 elected state’s attorneys could use to decide whether to seek the death penalty. Now that list includes 21 statutory factors, and, as Hoffman says, state’s attorneys can easily switch their decision from objective to subjective.

Death-penalty reformers also say that racism and geographical bias have been found in past Illinois capital prosecutions. According to the commission’s study of capital cases from 1988 through 1997, capital punishment was more often imposed when the victims were white and when cases were prosecuted in rural counties.

Bohman says Illinoisans also need to consider the financial impact of capital punishment. The state’s fiscal year 2008 budget provides $16.33 million to the Capital Litigation Trust Fund, which was created to increase resources available to death-penalty defendants. At one time, prosecutors had an overwhelming advantage.

Now that the state has put more resources into the defense side, Bohman says, it’s leveled the playing field but also increased the entire cost of the system.

“Millions are spent on the system, even though the use of capital punishment has dropped compared to other cases successfully resolved,” she says. “It’s bigger investment and less return.”

Tom Sullivan, co-chair of the Capital Punishment Reform Study Committee, recently published a status report on the Illinois capital-punishment system in the Illinois Bar Journal. He writes that although it’s too soon to determine whether problems in the state’s system have been alleviated, the commission has identified issues that still need to be addressed.

He notes that most capital-certified murder indictments are ultimately resolved without death sentences, the cost of capital cases exceeds that of noncapital cases, capital cases average more than 10 years before they’re finally resolved, the Illinois Supreme Court continues to ignore the call for racial and geographic discrimination study, and a high risk of error continues to plague Illinois death cases.

In the article, Sullivan acknowledges that the General Assembly has taken steps by enacting such reforms as the mandatory electronic recording of suspect questioning, beginning with the initial Miranda warning; a mandatory pretrial hearing to determine the admissibility of testimony if a jailhouse informant is called; and the prohibition of a death-penalty sentence if the only evidence comes from a jailhouse informant, a single eyewitness, or an accomplice.

However, he writes, legislators have still not approved most of the commission’s recommendations. To eliminate problems with flawed eyewitness identification, the person conducting a suspect lineup or photo spread should be unaware of the suspect’s true identity and should only produce photos or subjects for the witness one at a time. To reduce the arbitrary nature of the system, Sullivan continues, the General Assembly or the governor needs to appoint a five-member panel of lawyers and judges to review all cases in which state’s attorneys seek a death sentence.

Additionally, Sullivan recommends, the number of statutory factors should be reduced from 21 to five: murder of a peace officer, murder at a correctional institution, the murder of two or more persons, murder involving the infliction of torture, and murder of a person involved in the investigation. Sullivan lists other commission proposals, including a key recommendation that juries should not have the final say in capital trials. Instead, he writes, the judge should be permitted to override a jury decision and impose a noncapital sentence if he or she deems it necessary.

Even as Sullivan and other death-penalty reformers continue to weigh the issue, for now, the future of Illinois’ capital-punishment system remains uncertain. Some say the governor seems cagey about the issue. He charged the committee with determining and reporting on the effectiveness of reforms but first delayed the appointment of members and then stripped the committee of its $250,000 budget during last summer’s budget fiasco.

It hasn’t hurt too much, Sullivan says, because the committee members — lawyers who serve without pay — have continued to do their work without funding. They’re in the process of conducting interviews and gathering data and will file their fourth annual report in the coming weeks. However, Sullivan says, they’ll eventually require funds for travel and to hire outside experts.

State Sen. Kirk Dillard, R-Hinsdale, who also serves on the committee, recently introduced two new bills to the General Assembly. Because of the appointment delay, Dillard introduced the first bill to extend the life of the committee by one year, to 2009. It was passed by the Senate and now awaits House approval. Dillard’s second bill, seeking the appropriation of $250,000 for fiscal year 2008 and $250,000 for fiscal year 2009 from the general-revenue fund to the Illinois Criminal Justice Information Authority, is still before the Senate.

Contact Amanda Robert at arobert@illinoistimes.com.

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