Ultimate Punishment

by Scott Turow

  major players…supported significant changes: Response to the Commission report in its aftermath and in the months following was regularly documented in the local press. S. Mills and C. Parsons, “Ryan’s Panel Urges Fixes in Death Penalty; 2-Year Study Says Fatal Flaw Exists,” Chicago Tribune [Sports Final, CN Edition], 4/15/02, p. 1; “Justice Demands Death Penalty Fix,” Chicagoland Daily Herald, 4/17/02; S. Mills and M. Possley, “ ‘We’re Talking About Life and Death…Not About Losing an Election,’ Reform Plan Would Have Kept 115 from a Cell on Death Row,” Chicago Tribune [North Sports Final Edition], 4/16/02, p. 1; “Nothing Short of Justice,” Chicago Tribune [North Sports Final Edition], 4/16/02, p. 18; M. Possley and E. Ferkenhoff, “Daley, Cops Question Death Penalty Reform Plan,” Chicago Tribune [North Sports Final Edition], 4/17/02, p. 1; R. Pearson, “Governor Hopefuls Differ on Death-Eligible Crimes, Ryan Sees It Only For ‘Worst of Worst,’ ” Chicago Tribune [McHenry County, MC Edition], 4/23/02; R. Pearson, “Candidates Agree on Reform; Birkett, Madigan Say Death Penalty Plan Goes Too Far,” Chicago Tribune, 4/26/02; “Fixing the Death Penalty Series: Restoring Justice. First of five parts,” Chicago Tribune [Chicagoland Final Edition], 9/29/02, p. 10. (The remaining four parts of the series appeared on successive days.)

  none…enacted: C. Parsons and R. Long, “Death Penalty Reform Falters; House Rejects Ryan Plan As Senate Works on Compromise,” Chicago Tribune [Lake Final Edition], 11/20/02, p. 1.

  “headed straight for the trash bin”: Senator Dillard was quoted in S. Mills and C. Parsons, “Ryan’s Panel Urges Fixes in Death Penalty; 2-Year Study Says Fatal Flaw Exists,” Chicago Tribune [Sports Final, CN Edition], 4/15/02, p. 1. His role in sponsoring legislation embodying the commission’s reforms is described in J. Patterson, “Ryan Urges Legislators to Hurry, Approve Death Penalty Reforms,” Chicagoland Daily Herald, 5/14/02; C. Parsons, “Ryan Making End Run on Death Penalty; Veto Could Set Up Vote in Legislature,” Chicago Tribune [North Final Edition], 8/24/02, p. 1.

  June, I testified: I testified before the Illinois State Senate Capital Litigation Subcommittee on June 26, 2002.

  General Assembly…added a twenty-first factor: Public Act 92–0854. See http://www.law.northwestern.edu/faculty/fulltime/bienen/bienen.html, Seminar Task Force Report: Murder and Its Consequences, p. 94.

  lawyers…petition the Governor to exercise…clemency: See S. Mills, “Clemency Push for All 160 on Death Row,” Chicago Tribune, 5/16/02.

  victims and prosecutors appeared…before the Prisoner Review Board: See J. Keilman, “Clemency Pleas Rile Panelists; Some Attack Defense Claims, Hearings’ Pace,” Chicago Tribune [Northwest Final, NW Edition], 10/17/02, p. 1; S. Mills and C. Parsons, “Tears Send a Message; Hearings’ Emotional Impact Surprises Death Penalty Foes,” Chicago Tribune [Chicagoland Final Edition], 10/27/02, p. 1; H. G. Meyer, “Death Penalty Foes Rally Near Hearings,” Chicago Tribune [North Final Edition], 10/26/02, p. 17; J. Keilman and S. Kapos, “Attack Victims Speak at Hearings; Survivors Recall Horrors, Seek to Influence Ryan,” Chicago Tribune [North Sports Final Edition], 10/24/02, p. 1; S. Mills, “Life-or-Death Debate Rages at Hearings; Attorneys Argue over Clemency As Victims’ Families Relive Grief, Pain,” Chicago Tribune [North Sports Final Edition], 10/16/02, p. 1; E. Zorn, “Prosecutors Are Directors in Theater of Pain,” Chicago Tribune [North Sports Final Edition], 10/24/02, p. 1.

  Death penalty opponents responded with…mediagenic events: C. Jones, “ ‘Exonerated’ an Enlightening Evening for Ryan,” Chicago Tribune [North Sports Final, C Edition], 12/18/02, p. 1; D. Mendell, “March from Death Row; Ex-Inmates Carry Plea to Governor from Stateville,” Chicago Tribune [North Sports Final Edition], 12/17/02, p. 1; W. Hageman, “2 Days of Events on Wrongful Convictions,” Chicago Tribune [Chicagoland Final Edition], 12/15/02, p. 3.

  Governor might have had some role in unsavory doings: M. O’Connor and R. Gibson, “U.S. Links Ryan to Cover-up; Prosecutors Say He Knew Campaign Records Would Be Destroyed,” Chicago Tribune [North Sports Final Edition], 12/19/02, p. 1.

  Ryan…vetoed bills that…added new eligibility factors: See Report, p. 16, nn. 13–14, for a full discussion of the new death penalty provisions Governor Ryan vetoed.

  first-hand experience…prosecutorial power: I do not mean to question the need for the investigation. The duration and zeal of the grand jury proceedings have troubled me at times, but the resulting convictions clearly establish a basis for further inquiry.

  Ryan pardoned four men on death row: The four men pardoned were Stanley Howard, Madison Hobley, Leroy Orange, and Aaron Patterson. S. Mills and C. Parsons, “ ‘The System Has Failed’ Ryan Condemns Injustice, Pardons 6; Paves the Way for Sweeping Clemency,” Chicago Tribune [North Final Edition], 1/11/03, p. 19. See also People v. Stanley Howard, 147 Ill. 2d 103, 588 N.E.2d 1044 (1992); People v. Madison Hobley, 159 Ill. 2d 272, 637 N.E.2d 992 (1994); 182 Ill. 2d 404, 696 N.E.2d 313 (1998); People. v. Leroy Orange, 121 Ill. 2d 364, 521 N.E.2d 69 (1988); 168 Ill. 2d 138, 659 N.E.2d 935 (1995); 195 Ill. 2d 437, 749 N.E.2d 932 (2001); People v. Aaron Patterson, 154 Ill. 2d 414, 610 N.E.2d 16 (1992); 192 Ill.2d 93, 735 N.E. 2d 616 (2000). See also R. Bush and J. Coen, “3 Awaken to Busy Day of Freedom,” Chicago Tribune [Chicagoland Final Edition], 1/12/03, p. 14; “Excerpts from Ryan Speech at DePaul,” Chicago Tribune [Chicagoland Edition], 1/12/03, p. 16; “Freed from Death Row,” Chicago Tribune [Chicagoland Edition], 1/12/03, p. 8; “Excerpts from Gov. Ryan’s Speech,” Chicago Tribune [North Final Edition], 1/11/03, p. 18.

  evidence…found to show…torture: Burge’s alleged torture, and the investigation of it, are well described in J. Conroy, “A Hell of a Deal,” Chicago Reader, 10/12/01, posted at http://www.todesstrafeusa.de/death_penalty/alive_patterson.htm. In a 1997 opinion, U.S. District Court Judge Milton Shadur wrote: “It is now common knowledge that in the early to mid-1980s Chicago Police Commander Jon Burge and many officers working under him regularly engaged in the physical abuse and torture of prisoners to extract confessions…Both internal police accounts and numerous lawsuits and appeals brought by suspects alleging such abuse substantiate that those beatings and other means of torture occurred as an established practice, not just on an isolated basis.” United States ex rel. Maxwell v. Gilmore, 37 F. Supp. 2d 1078, 1094 (N.D.Ill. 1999). See also People v. Wilson, 116 Ill. 2d 29, 506 N.E.2d 571, 106 Ill. Dec. 771 (1987), finding that convicted cop killer Andrew Wilson had been beaten into confessing, which culminated in a successful civil rights suit against the city of Chicago. See Wilson v. City of Chicago, 120 F.3d 681 (7th Cir. 1997); R. Kaiser, “Burge a Distant Memory at Far South Side Station; Ex-Cop Brass’ Abuse Cited by Ryan in Pardons,” Chicago Tribune [Chicagoland Edition], 1/12/03, p. 14. The Cook County State’s Attorney’s Office had long opposed the efforts of these four defendants—and several others—to gain post-trial evidentiary hearings into the torture charges, even after their claims had gained substance from the revelations in other cases. In the meantime, nearly a decade after the evidence of torture had emerged, no criminal charges had been brought against any officer. The Chief Judge of the Circuit Court of Cook County ruled in 2002 that the State’s Attorney’s Office had a conflict of interest and appointed a special prosecutor to conduct a criminal investigation of Area Two officers. S. Mills and J. Hanna, “Counsel to Probe Torture by Police,” Chicago Tribune [North Sports Final Edition], 4/25/02, p. 1.

  In…four pardoned cases…principal evidence…was a confession: Madison Hobley, one of the four men who was pardoned, has long contended that he was tortured but never actually gave the oral confession that was used to convict him of setting a fire that killed seven people, including his wife and infant son. See People v. Hobley, 182 Ill. 2d 404, 696 N.E.2d 313 (1998), where Hobley was granted an evidentiary hearing to show that the state had suppressed evidence. The Illinois Supreme Court said Hobley’s “petition make[s] a substantial showing that the State has acted with bad faith in suppressing exculpatory evidence throughout the course of proceedings in defendant’s case.”

>   Aaron Patterson: For a comprehensive account of Patterson’s case, see J. Conroy, “Pure Torture,” Chicago Reader, 12/3/99, http://www.ccadp.org/aaronpatterson-reader.htm. The Illinois Supreme Court had decided that Patterson was entitled to an evidentiary hearing on his torture claim because the trial judge who had rejected those contentions had refused to consider Patterson’s written message about what was happening to him, incorrectly deeming it inadmissible hearsay. People v. Patterson, 192 Ill. 2d 93, 735 N.E.2d 616 (2000).

  only eyewitnesses who’d seen Brisbon…recanted: See Remarks Concerning Clemency Petition of Henry Brisbon Presented to the Illinois Prisoner Review Board, 10/15/02 (presentation of Brisbon’s lawyer, Jean MacLean Snyder of the MacArthur Justice Center) Link at http://macarthur.uchicago.edu/deathpenalty/brisbon.html; United States ex rel. Brisbon v. Gilmore (U.S.D.C.N.D.Ill. No. 95 C 5033 6/5/97) 1997 U.S. Dist. LEXIS 8314.

  Kenneth Allen: See People v. Allen, 79 Ill. 2d 471, 405 N.E. 2d 747 (1980) (Remand on Supreme Court’s Order to Examine Plea); 101 Ill. 2d 24, 461 N.E.2d 337 (1984); “Death Row Inmates Receive Life,” Chicago Tribune [Chicagoland Final Edition], 1/12/03, Section 1, p. 18 [hereafter “Tribune Case Capsules”].

  Latasha Pulliam: People v. Pulliam, 176 Ill. 2d 261, 680 N.E.2d 343 (1997); People v. Pulliam, No. 89141 (Ill. Supreme Ct., decided 10/18/02) (remanding for hearing on retardation); Tribune Case Capsules, p. 19.

  Andrew Johnson: People v. Andrew Johnson, 149 Ill. 2d 118, 594 N.E.2d 253 (1992); 183 Ill. 2d 176, 700 N.E.2d 996 (1998), Tribune Case Capsules, p. 18.

  Ryan commuted the sentences of the 167 persons left on death row: M. Possley and S. Mills, “Clemency for All; Ryan Commutes 164 Death Sentences to Life in Prison Without Parole; ‘There Is No Honorable Way to Kill,’ He Says,” Chicago Tribune [Chicagoland Final Edition], 1/12/03, p. 1; S. Mills, “After Years of Soul Searching, Ryan Decides Not to ‘Play God,’ ” Chicago Tribune [Chicagoland Final Edition], 1/12/03, p. 1.

  Justice Blackmun wrote, in a famous dissent: Collins v. James, 510 U.S. 1141, 1143 (1994).

  A number of prosecutors, police officers, and survivors expressed outrage: M. Possley and S. Mills, “Clemency for All; Ryan Commutes 164 Death Sentences to Life in Prison Without Parole; ‘There Is No Honorable Way to Kill,’ He Says,” Chicago Tribune [Chicagoland Final Edition], 1/12/03, p. 15; J. Kellman, “Relatives of Victims Feel Cheated,” Chicago Tribune [Chicagoland Final Edition], 1/12/03, p. 1.

  The St. Louis Post-Dispatch…published poll results: “Illinoisans Are Split Closely on Ryan’s Commutations,” St. Louis Post-Dispatch, 2/7/03. The poll showed that 50.5 percent of respondents disagreed with Ryan and 47.5 percent agreed, bringing the results within the poll’s margin of error. Intriguingly, the response in Illinois closely mirrored reactions in the rest of the country. In a national poll, conducted by Harris Interactive for CNN and Time, those with opinions were evenly divided about whether Governor Ryan had done the right thing. Harris Interactive, 1/17/03. See http://www.deathpenaltyinfo.org/Polls.html#ABCNewsWashPost12403.

  a bill to abolish…received a favorable vote: H.B. 213. See http://www.legis.state.il.us./legislation/default.asp; K. McCann and C. Parsons, “Death Penalty Debate Gets Forum in House,” Chicago Tribune [Chicago Final Edition], 3/7/03, p. 1; “House Panel: End Death Penalty,” Chicago Tribune [RedEye Edition] 3/7/03, p. 6.

  One bill mandated videotaping interrogations: For further details see http://www.legis.state.il.us/legislation/default.asp, and C. Parsons and K. McCann, “Taped Confessions Bill Passes; Governor Says He Will Sign Measure Requiring Record in Homicide Interrogations,” Chicago Tribune [Chicago Final Edition], 5/9/03, p. 1. For some history of the legislation, see “A Remarkable Week for Justice,” Chicago Tribune, 4/7/03 (Editorial), and C. Parsons and K. McCann, “Senate OKs Death-Penalty Bills,” Chicago Tribune, 4/4/03 (Metro Section).

  A second…reform measure…passed…in late May: SB 472, viewable at http://www.legis.state.il.us/legislation. See also C. Parsons and R. Long, “Death Penalty Reform Goes to Blagojevich,” Chicago Tribune [Chicago Final Edition], 5/30/03, p. 1.

  the new Governor…promised to sign the videotaping bill: C. Parsons and K. McCann, “Taped Confessions Bill Passes; Governor Says He Will Sign Measure Requiring Record in Homicide Interrogations,” Chicago Tribune [Chicago Final Edition], 5/9/03, p. 1. See also T. Sullivan and S. Turow, “Taping Interrogations a Much-Needed Reform,” Chicago Tribune [Chicago Final Edition], 5/6/03, p. 23.

  Blagojevich also spoke favorably about the broader reform: New reports on May 29 and 30 describe the new Governor’s remarks about the reform bill and his comments about lifting the moratorium, and details of the legislative action. C. Parsons and R. Long, “Death Penalty Reform Goes to Blagojevich,” Chicago Tribune [Chicago Final Edition], 5/30/03, p. 1; S. McLaughlin, “House Advances Death Penalty Reform,” Kankakee Daily Journal, Metro Section, 5/30/03; “Senate Sends Sweeping Death Penalty Reform to Governor,” at http://abclocal.go.com/wls/news/052903_ns_deathpenalty.html.

  Arthur’s reflections about the world of criminal law: Reversible Errors (Farrar, Straus and Giroux, 2002), pp. 6–7.

  jailers…find an execution…unsettling: Witness to an Execution, by Sound Portraits Productions (2000), an audio record of the reflections of Jim Willett, former Warden at the death house in Huntsville, Texas, as well as of other correctional personnel, shows how discomforting an execution is for those who perform it. See www.soundportraits.org.

  Easley…evidence at his sentencing hearing: People v. Ike J. Easley, Jr., 148 Ill. 2d 281, 346, 592 N.E.2d 1036, 1065, 170 Ill. Dec. 356 (1992).

  conservatives with growing doubts: For a survey of many opinions about capital punishment, including conservative critics of the death penalty, see, for example, W. Saletan’s article, “Calculating the Risk,” in July/August 2000 issue of Mother Jones, posted at http://www.motherjones.com/mother_jones/JAoo/power_jaoo.html. George Will, probably the nation’s most highly regarded conservative columnist, has expressed continuing reservations about capital punishment. Notwithstanding those, however, he excoriated Governor’s Ryan’s blanket commutations in his syndicated column, “Unhealable Wounds,” The Washington Post, 1/19/03, p. B7. Will repeated a comment he had made before—“Conservatives, especially, should remember that capital punishment is a government program, so skepticism is warranted”—and also observed, “By causing courts to multiply restrictions on the imposition of capital punishment, opponents of such punishment have helped make its administration capricious, thereby doubling the arguments against it: capriciousness, and the fact that this reduces the death penalty’s ability to deter, and even the ability of social science to measure its deterrent power.” Will found the best argument for capital punishment the one I’ve dubbed “moral proportion.” In support, he quoted—me, a passage from Reversible Errors. His column is posted at http://www.jewishworldreview.com/cols/will012103.asp.

  the Menendez brothers…or the Unabomber: For a comprehensive description of the crimes of Erik and Lyle Menendez, see http://www.crimelibrary.com/menendez/menendezmain.htm. A lengthy résumé of the Unabomber investigation and the legal proceedings leading to life imprisonment for Theodore Kaczynski is on the Web at http://www.cnn.com/SPECIALS/1997/unabomb/.

  justices…have waffled: Compare Blackmun’s dissent in Callins v. James, 510 U.S. 1141, 1143 (1994), with his dissent in Furman v. Georgia, 408 U.S. at 407–9. Compare Justice Powell’s dissent in Furman, 408 U.S. at 421–27, his opinion in Gregg v. Georgia, 428 U.S. 153 (1976), and his opinion in McKleskey v. Kemp, 481 U.S. 279 (1987), with his comments to his biographer about McKleskey. Jeffries, Justice Lewis F. Powell, Jr: A Biography (1994), p. 451. Compare Justice Stevens’s opinion in Gregg with his dissent in McKleskey, 481 U.S. at 368, where he stated that the Constitution will not tolerate a racially discriminatory death penalty, and suggested that the Georgia statute he had approved in Gregg be dramatically narrowed. Compare Justice White’s concurring opinion in Furman, 408 U.S. at 311–14, with hi
s concurrence in Gregg, 428 U.S. at 207, and Justice Stewart’s concurrence in Furman, 408 U.S. at 306–11, with his opinion in Gregg.

  ACKNOWLEDGMENTS

  A number of persons are due special thanks for their help in the writing of this book. Beyond my fellow members of the Illinois Capital Punishment Commission, the staff that supported us under Matt Bettenhausen’s guidance was remarkably professional and informed. To the estimable Jean Templeton and to Nancy Miller, both of whom continued to answer my questions and provide assistance long after the Commission’s work was complete, I owe deep and prolonged bows of gratitude, as I also do to Rick Guzman.

  Aside from the Commission staff, Rachel Turow offered extensive and unerring research assistance over a number of months, which was essential to my work. My thanks, too, to Chris Thomas for letting me discuss our communications in instances where I would not have done so without his permission.

  I am also grateful to a number of persons at The New Yorker for their help with the article on which part of this book is based: David Remnick for commissioning it, Jeff Toobin for encouraging me, Marina Harss and Nandi Rodrigo for scrupulous fact-checking, and Sharon Delano for a number of useful editorial suggestions. To my editor and publisher at Farrar Straus, Jonathan Galassi, who has long urged me to write extended nonfiction about the law, my debt of gratitude only grows deeper.

  My partners at Sonnenschein Nath and Rosenthal, and in particular our Chair, my dear friend Duane Quaini, who have long supported the legal work that much of this book describes are also due my thanks. Mary Kramer, the superb paralegal who not only organized, but also frequently appeared to have memorized, the vast legal record in both the Hernandez and Thomas cases, once again provided unhesitating aid while I was writing. Without my secretary at SNR, Ellie Lucas, and my personal administrative aide, Kathy Conway, who wrestled the end notes into submission, there is no telling what might have happened.