Ultimate Punishment

by Scott Turow

  Our deliberations were the product of 24 months of intensive collaboration and research. Consistent with the Governor’s original mandate, we carefully scrutinized the cases of thirteen Illinois defendants who have been released from death row in recent years after their convictions were invalidated. We also studied all reported capital decisions in Illinois, whether the death sentence or the underlying conviction was under review. We held public and private sessions where we heard from the surviving family members of murder victims, and from opponents of the death penalty, including some of the defendants who had been released from death row. We consulted with many nationally recognized experts in fields of study related to capital punishment, and we commissioned and conducted studies of our own. We also considered recommendations from across the country made by a number of bodies similar to our own, formed to consider potential capital punishment reforms. In all, our purpose was to thoroughly examine all aspects of the justice system as it relates to capital sentences and to become familiar with the research and learning in this area.

  Despite the diversity of backgrounds and outlooks among those on the Commission, we are unanimous in many of our conclusions. All members of the Commission believe, with the advantage of hindsight, that the death penalty has been applied too often in Illinois since it was reestablished in 1977. Accordingly, we are unanimous in agreeing that reform of the capital punishment system is required in order to enhance the level of scrutiny at all junctures in capital cases. All Commission members also agree that if capital punishment is to continue to be imposed in Illinois, achieving a higher degree of confidence in the outcomes will require a significant increase in public funding at virtually every level, ranging from investigation through trial and its aftermath. We all also believe that significant reforms to the capital punishment system have taken place already, through legislation creating the Capital Litigation Trust Fund and through the Illinois Supreme Court’s promulgation of extensive new rules governing many aspects of capital trials.

  Ordering our proposals according to the procedural stage to which they apply, the following is a summary of some of our specific recommendations:

  A. Investigation:

  1. We recommend videotaping all questioning of a capital suspect conducted in a police facility, and repeating on tape, in the presence of the prospective defendant, any of his statements alleged to have been made elsewhere.

  2. Recognizing an increasing body of scientific research relating to eyewitness identification, we propose a number of reforms regarding such testimony, including significant revisions in the procedures for conducting line-ups.

  B. Eligibility for the Death Penalty

  3. The Commission unanimously concluded that the current list of 20 factual circumstances under which a defendant is eligible for a death sentence should be eliminated in favor of a simpler and narrower group of eligibility criteria. A majority of the Commission agreed that the death penalty should be applied only in cases where the defendant has murdered two or more persons; or where the victim was either a police officer or a firefighter; or an officer or inmate of a correctional institution; or was murdered to obstruct the justice system; or was tortured in the course of the murder.

  4. We also have recommended that the death penalty be barred in certain instances because of the character of the evidence or the defendant. We recommend that capital punishment not be available when a conviction is based solely upon the testimony of a single eyewitness, or of an in-custody informant, or of an uncorroborated accomplice, or when the defendant is mentally retarded.

  C. Review of the Prosecutorial Decision to Seek the Death Penalty:

  5. In order to ensure uniform standards for the death penalty across the state, we recommend that a local state’s attorney’s decision to seek the death penalty be confirmed by a state-wide commission, comprised of the Attorney General, three prosecutors, and a retired judge.

  D. Trial of Capital Cases:

  6. We have proposed a number of additional measures to augment the reforms already adopted by the Illinois Supreme Court to enhance the training of trial lawyers and judges in capital cases. Included are our suggestions for increased funding.

  7. We have offered several recommendations aimed at intensifying the scrutiny of the testimony of in-custody informants, including recommending a pretrial hearing to determine the reliability of such testimony before it may be received in a capital trial.

  8. To allow for future audits of the functioning of the capital punishment system, we also suggest that a designated array of information about the nature of the defendant and the crime be collected by the trial court.

  E. Review

  9. We recommend that when a jury determines that death is the appropriate sentence in a case, the trial judge, who has also heard the evidence, must concur with that determination, or else sentence the defendant to natural life.

  10. We recommend that, as in several other states, the Illinois Supreme Court review each death sentence to ensure it is proportionate, that is, consider whether both the evidence and the offense warrant capital punishment in light of other death sentences imposed in the state.

  Because capital punishment is presently lawful in Illinois and because it appears to have the support of a majority of Illinois citizens, our deliberations have concentrated primarily on these reforms and other proposals, rather than on the merits of capital punishment. Only at the close of our work did we consider that question. A narrow majority of the Commission would favor that the death penalty be abolished in Illinois. Those favoring abolition did so either because of moral concerns, because of a conclusion that no system can or will be constructed which sufficiently guarantees that the death penalty will be applied without arbitrariness or error, or because of a determination that the social resources expended on capital punishment outrun its benefits. Some members voted that we recommend to the Governor that should the Governor conclude, after studied and supportable analysis, that the legislature will not substantially implement the recommendations of this Report, that the Moratorium on the death penalty continue and that the death penalty be abolished in the State of Illinois. A slightly smaller number of Commission members concluded that the death penalty should continue to be applied in Illinois. Those favoring the death penalty believe it retains an important role in our punishment scheme in expressing, in behalf of the community, the strongest possible condemnation of a small number of the most heinous crimes. All members of the Commission have emerged from our deliberations with a renewed sense of the extraordinary complexities presented by the question of capital punishment.

  Our divergence on that ultimate question was not unanticipated in light of the varied viewpoints and experience among those whom the Governor chose to serve on the Commission. What is more noteworthy, we believe, is the consistency of judgment among us about how our capital punishment system can be improved. The Commission’s discussions have been characterized by an amity and respect for the differences among members, which is, frankly, extraordinary given the sharp divisions that capital punishment has traditionally provoked in the United States. In assessing our work, we are proudest of the broad agreements we have been able to achieve. A strong consensus emerged within the Commission that if capital punishment is retained in Illinois, reforms in the nature of those we have outlined are indispensable to answering the Governor’s call to better ensure a fair, just and accurate death penalty scheme.

  We anticipate careful reflection about these proposals by the Governor, the legislature, and Illinois citizens at large. Whatever their ultimate conclusions, all members of the Commission have been deeply honored by the opportunity to serve and to contribute to public discussion of so difficult and significant a subject.

  April 2002

  NOTES

  This book is a personal reflection, informed more by experience than study, and, as such, is not to be mistaken for a work of scholarship. The following notes are offered solely for the curious, to substantiate the
many assertions of fact in the text. In identifying judicial opinions, I have followed accepted legal citation, except for allowing myself the pleasure of abandoning the meaningless anachronism of including mention of a higher court’s denial of further review. Web citations were accurate at press time.

  On February 3, 1984: The details of Hector Sanchez’s crimes are reported in three Illinois Supreme Court decisions captioned People v. Sanchez, 115 Ill. 2d 238, 503 N.E.2d 277, 104 Ill. Dec. 720 (1986); 131 Ill. 2d 417, 137 Ill. Dec. 629, 546 N.E.2d 574 (1989); 169 Ill. 2d 472, 662 N.E.2d 1199, 215 Ill. Dec. 59 (1996); and a Wisconsin case, State v. Sanchez, 149 Wis. 2d 763, 441 N.W.2d 756 (Wise. Ct. Appls., Dist. 1, 1989).

  “The Case That Broke Chicago’s Heart”: The published opinions of the Illinois Supreme Court set forth much of the story of Buckley, Hernandez, and Cruz. People v. Hernandez, 121 Ill. 2d 293, 521 N.E.2d 25, 117 Ill. Dec. 914 (1988); People v. Cruz, 121 Ill. 2d 321, 521 N.E.2d 18, 117 Ill. Dec. 907 (1988); People v. Cruz, 162 Ill. 2d 314, 643 N.E.2d 636, 205 Ill. Dec. 345 (1994) [hereafter “Cruz II”]. The 1995 unpublished opinion of the Illinois Appellate Court’s Second Judicial District, reversing Hernandez’s conviction in the case I argued in his behalf, People v. Hernandez (No. 2-91-0940) (Ill. App. Ct. 1/30/95) [hereafter “Hernandez II”], is posted at http://www.scottturow.com/ultimatepunishment, along with the brief Matt Tanner, Leslie Suson, and I filed for Alex [hereafter “Hernandez Brief”]. A comprehensive account of the Cruz and Hernandez cases from the initial investigation to the eventual indictment of several DuPage County officials involved in the prosecution is contained in T. Frisbee and R. Garrett, Victims of Justice [hereafter Victims] (Avon, 1998).

  A few days before the primary…indicted: The atmosphere surrounding the initial indictment has been described in Victims, pp. 52, 121, and “Ex-Prosecutor Denies Politics Outran Justice,” Chicago Tribune, 12/17/85, p. I. See also Hernandez Brief, p. 41.

  Brian Dugan was arrested: The details of Dugan’s arrest, his subsequent statements, and the ensuing investigation have been recorded often. See, for example, Cruz II at 162 Ill. 2d at 331–42; Hernandez II at 18–23; Victims, pp. 99 fwd.

  seventeen men…sentenced to death and later…absolved: The seventeen are Joseph Burrow, Perry Cobb, Rolando Cruz, Gary Gauger, Alex Hernandez, Madison Hobley, Stanley Howard, Verneal Jimerson, Ronald Jones, Carl Lawson, Steven Manning, Leroy Orange, Aaron Patterson, Anthony Porter, Steven Smith, Darby Tillis, and Dennis Williams. Links to a summary of each case appear on the Web site of Northwestern University Law School’s Center on Wrongful Convictions, http://www.law.northwestern.edu/depts/clinic/wrongful/exonerations/Illinois.htm.

  Porter was released in February 1999: Anthony Porter’s story has been often told. See, e.g., D. Holt and S. Mills, “Double Murder Case Unravels,” Chicago Tribune [North Sports Final Edition], 2/4/99, p. I, and the front page of the Tribune every day for the next week; Center on Wrongful Convictions; http://www.illinoisdeathpenalty.com/porter.html.

  Chicago Tribune published a relentless series: K. Armstrong and S. Mills, “Death Row Justice Derailed,” Chicago Tribune, 11/14/99, p. I, began the Tribune’s noteworthy series. The remaining four parts ran the next four days. In point of fact, by the Commission’s calculation, Illinois death sentences or the underlying convictions were reversed more than half the time. See Report of the Governor’s Commission on Capital Punishment [“Report”], p. 204, n.29. The report is posted at http://www.idoc.state.il.us/ccp.

  the overall scorecard: The scorecard numbers were those gathered by the Commission at the end of 2001, after the moratorium had been in place for two years. See Report, Technical Appendix, Section 2. At that time, there were approximately 15 additional defendants who had been convicted and sent to death row but who had not yet completed an initial appeal. Because the moratorium suspended executions, but not convictions, the numbers in all categories changed in ensuing years. In October 2002, the Illinois Department of Corrections issued a fact sheet that said 313 inmates had been admitted to the condemned unit since the death penalty was reestablished in Illinois in June 1977. “Of the 313 inmates, 123 had their sentence reversed, 2 had their sentence reversed and were discharged, 13 have died in prison, 12 have been executed in Illinois, I has been executed in Ohio, I has been pardoned and I has had the death sentence commuted.” http://www.idoc.state.il.us/subsections/reports/news/condemnedunitstats.pdf. Professor James Liebman of Columbia, whose empirical study of death penalty error rates has been highly publicized and hotly disputed (among other reasons, because he looked only to reversals, without regard to whether a death sentence was reimposed), has emphasized that Illinois’ error rates are lower than the national average. See J. Liebman et al., “A Broken System: Error Rates in Capital Cases 1973–1995,” posted at http://justice.policy.net/jpreport/ and http://justice.policy.net/jpreport/liebman 1.pdf at iii.

  Governor Ryan found…death warrant…tormenting: Ryan spoke often to reporters about the Kokoraleis execution and his reluctance to repeat that experience. C. Falsani, “Present system makes moratorium ‘a moral obligation,’ gov says,” Chicago Sun-Times, 3/15/02; E. Slater, “A Matter of Life and Death: Illinois Gov. George Ryan Backed Executions Until an Inmate’s Fate Was in His Hands,” Los Angeles Times [National Edition], 11/8/02, p. 1.

  system “fraught with error”: For a summary of Governor Ryan’s statement in declaring the moratorium and the generally positive reaction it garnered, see K. Armstrong and S. Mills, “Ryan: Until I Can Be Sure—Illinois Is First State to Suspend Death Penalty,” Chicago Tribune, 2/1/00, p. 1.

  1978…no federal death penalty: The complicated history of the federal death penalty is discussed on the United States Department of Justice Web site. http://www.usdoj.gov/dag/pubdoc/_dp_survey_final.pdf.

  John Wayne Gacy was scheduled for execution: Gacy’s crimes are described in the opinion of the Illinois Supreme Court affirming Gacy’s conviction and death sentence. People v. Gacy, 103 Ill. 2d 1; 468 N.E.2d 1171; 82 Ill. Dec. 391 (1984).

  Paul Simon…longtime foe of the death penalty: Senator Simon described his own death-penalty conversion in his biography. P. Simon, P.S.: The Autobiography of Paul Simon (Bonus Books, 1998), pp. 73–74.

  By the time Ryan left office, at least fifty persons…convicted: The so-called licenses-for-bribes scandal was a frequent topic of local coverage. For summaries, including a running count of those convicted, see E. Krol, “Secretary of State Hopeful Says Changes Are Needed,” Chicagoland Daily Herald, 10/21/02; Illinois Campaign for Political Reform (ICPR), “Licenses for Bribes: The Roots of Corruption, Closer to the Top; State Employees Get Prison Time for Political Fundraising,” January 2001, posted at http://ilcam paign.org/issuebriefings/ib7.html and the ICPR Web site, http://ilcam paign.org/.

  ex-chief of staff and Ryan’s political campaign fund…were convicted in March 2003: M. O’Connor, “Jury Convicts Fawell, Ryan Campaign of Fraud,” Chicago Tribune, 3/20/03, p. 1. The article places at fifty-five the number of persons convicted in connection with the federal investigation of Ryan’s Secretary of State’s office.

  Ryan was a pharmacist: Biographies of George Ryan appear at the Web site of the Illinois Blue Book, 2000 Millennium Edition, pp. 20–21, http://www.cyberdriveillinois.com/bb/sec1_1_34.pdf, and 2001–2002 Edition, http://www.sos.state.il.us/publications/02bluebook/portraits_bios/georgehryan.pdf.

  report by Raymond Paternoster: Paternoster’s study appears at http://www.urhome.umd.edu/newsdesk/pdf/exec.pdf. Final report: http://www.urhome.umd.edu/newsdesk/pdf/finalrep.pdf. The Maryland debate is summarized often; e.g., http://www.quixote.org/ej/states/maryland/.

  Indiana established…Commission: Regarding the Indiana study, see Report, p. 198 and pp. 204–5, n.35, and the study itself, “The Application of Indiana’s Capital Sentencing Law: Findings of Indiana Criminal Law Study Commission,” available from the Indiana Criminal Justice Institute, One North Capitol, Suite 1000, Indianapolis, IN 46204–2038 [hereafter “Indiana Report”].

 
; committee appointed by the Pennsylvania Supreme Court: A. Liptak, “Suspension of Executions Is Urged for Pennsylvania,” New York Times [National Edition], 3/5/03, p. A15.

  constitutional right to have that jury…decide: The sentencing scheme in Arizona, which allowed a judge to impose a death sentence after a jury verdict, was invalidated in Ring v. Arizona, 536 U.S. 584 (2002). The decision seemingly also rendered unconstitutional the systems in Idaho, Nebraska, and Colorado and brought into question the sentencing statutes in Montana, Florida, Alabama, Indiana, and Delaware. Whether Ring applies retroactively to the death sentences previously pronounced under those systems has not yet been decided.

  federal capital punishment statute is unconstitutional: Judge William Sessions III declared the federal capital statute unconstitutional on 9/24/02 in United States v. Fell, 217 F. Supp. 2d 469 (D.Vt. 2002). For press accounts, see, e.g., http://www.usatoday.com/news/nation/2002-09-24-death-penalty-unconstitutional_x.htm.

  execution of the mentally retarded is unconstitutional: The U.S. Supreme Court prohibited death sentences for the mentally retarded in Atkins v. Virginia, 536 U.S. 304 (2002).

  four justices…executing murderers…under eighteen…cruel and unusual: In In Re Stanford, 537 U.S.—, 123 S.Ct. 715, 71 U.S.L.W. 3416 (No. 10009, 10/21/02), Justices Stevens, Breyer, Ginsburg, and Souter dissented from the Court’s decision not to review the question of whether execution of a person under eighteen was unconstitutional, in light of Atkins. Because the case was on collateral review—i.e., not on the direct chain of appeal from the original judgment—four votes could not bring the matter before the Court. But four votes will be sufficient when the question is presented on direct review of the conviction and death sentence of another defendant. Even among the thirty-eight states that permit capital punishment, twenty-one, including Illinois, plus the federal government and the military, prohibit the execution of juveniles under seventeen. See http://www.deathpenaltyinfo.org/article.php?did-205&scid-27.