As of Monday, April 15, 2002, the day the Capital Punishment Commission finally issued its long-anticipated report, 764 people (756 men and 8 women) had been executed in the United States since the reinstatement of the death penalty. During that same time, ninety-nine people had been released from death row nationwide. Florida had the most with twenty-two being released from death row. Illinois was second with our thirteen. In third place, Texas and Oklahoma each had released seven inmates from death row. The 100th death row exoneration—that of Ray Krone for a murder he did not commit—would occur nine days later in Arizona.
At the outset of its report, “a narrow majority” of the commission members said they supported abolishing the death penalty. At the same time, the commission concluded that if capital punishment remained in place in Illinois, reform was important to better ensure that it was fair, just, and accurate—although it could not be made foolproof.
“The commission was unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death,” the report said.
The commission said that I and the next governor should consider the reforms that should be needed to be made to the death penalty system when considering clemency petitions in capital cases.
“It is entirely appropriate to consider how those changes might have made a difference to defendants when reaching determinations about whether or not a death sentence should be upheld on the merits or whether mercy should be extended in light of all of the circumstances,” the report said.
The central question essentially went unanswered. There was no definitive verdict on whether capital punishment should be retained or repealed in Illinois. I didn’t get the “moral certainty” I was looking for to help me decide the fate of current death row inmates. The commission said it was sure about just two things: the death penalty system in Illinois was broken and they couldn’t find a way to make absolutely certain that everyone sentenced to death actually was guilty beyond any doubt.
I led off the press conference by thanking the commission members for their time and “extraordinary efforts to the public good. Their hard work and comprehensive study of this difficult issue is appreciated by all of us as citizens of this great state.”
I promised to study the report and decide what to do. “I owe it to everyone who believes in justice and to everyone touched by our legal system to reflect upon this commission’s findings,” I said. “There are some who will be impatient, who will demand quick solutions now that I have this report. But our experience in Illinois with the capital punishment system has gained worldwide attention. What we do from this point forward may be an example to the rest of the country and the world.”
Indeed, Richard Dieter, executive director of the Death Penalty Information Center, said, “People are looking to Illinois for what to do about this problem.” He noted that of the thirty-eight states with the death penalty, twenty-two were considering moratoriums similar to the one I declared in Illinois, though it was unlikely that any would be enacted.
The report noted that had the recommendations been in place since the reinstatement of the death penalty in Illinois, at least 115 of the approximately 250 people sentenced to death by the end of 2001 would not have been eligible for the death penalty.
The commission’s report not only underscored all the findings of previous investigations but proposed a number of concrete reforms for the current system—eighty-five recommendations in all. Some were minor and could be implemented by rule or a simple change of procedure. Other recommendations, however, would require real political muscle and a change in statute to be effective. All eighty-five of the recommendations, backed up by pages and pages of documentation, were solid, substantial improvements to Illinois death penalty law.
The conclusions and proposals addressed every one of the significant failings that had been identified by the media, by attorneys, or academics. The major recommendations were:
Create a statewide panel that would conduct a pretrial review of all prosecutors’ decision-making processes in capital cases. This panel, it was hoped, would curtail questionable decisions to seek the death penalty in cases where it really wasn’t warranted.
Reduce the number of legal factors making felons eligible for death from twenty to five.
Ban the death penalty for anyone with diminished mental capacity (at the time the term was “mentally retarded”).
Prevent death penalty prosecutions when the prosecution’s case was based solely on a single, uncorroborated eyewitness, the testimony of an accomplice, or the testimony of a jailhouse informant.
Videotape the entire interrogation of a homicide suspect.
Allow trial judges the power to reverse a jury’s decision to impose the death sentence and impose a sentence of life without parole.
Give the Illinois Supreme Court new power to vacate a death sentence if it is excessive or disproportionate to the penalties imposed in other similar crimes.
Change the rules for police lineups to require that the officer conducting the lineup does not know who the suspect is and to obtain a detailed statement of the confidence level of witnesses who make identifications.
Clarify the death penalty statute so juries fully understand their responsibilities when determining whether an accused is eligible for death and to ensure that judges fully explain to juries the range of sentences that a defendant may receive.
Add as a mitigating factor for the jury to consider at sentencing information about a defendant’s history of being abused physically or emotionally as well as reduced mental capacity that was short of the legal definition of mental impairment.
Death penalty opponents were disappointed. Some felt that a commission appointed by me should have at least leaned toward their views and done more to back up their beliefs. They questioned how the commission could remain deadlocked on this central question after spending two years poring over evidence that clearly revealed the flaws in the system.
But the commission had confirmed all the details others had uncovered about executions in Illinois. They had proposed meaningful changes to a broken system.
Rob Warden, the executive director of the Northwestern University Center on Wrongful Convictions, declared, “It comes to exactly the conclusions that anyone who studies the issue fairly comes to—that the system is not working and cannot work.”
Legislators began weighing in on the possibility or probability that any of these reforms would be enacted by the General Assembly. Democratic state representative Barbara Flynn Curry, the House majority leader, said that some would be easy to support while others would require serious debate and significant infusions of money at a time when the state was laying people off due to a budget crisis.
Republican state senator Kirk Dillard told the Chicago Tribune that some of the recommendations, such as reducing the eligibility factors, would probably be “headed straight for the trash bin.” He noted, “Legislators like to get tougher and tougher on crime. We ratchet it up, not down.”
My response was simple: “We’re talking about life and death. We’re not talking about losing an election.”
The commission said it had reviewed rulings in nearly three hundred capital cases and also reviewed the cases of the thirteen exonerations. The commission found there was very little solid evidence against the defendants. The disparities in the system were apparent. A review of a decade of cases revealed that people who killed white victims were more likely to get a death sentence than people who killed minorities. People convicted of murder in rural areas were more likely to get sentenced to death than people convicted of murder in urban areas.
Peoria County state’s attorney Kevin Lyons emerged as a leading critic of the report. In a press conference, he contended that the commission’s objective “was and is abolition of the death penalty. But they could not bring themselves to simply say that in a sentence or in a one-page report.
“It as an effort . . . to create more burdens and restrictions upon the prosecution, hoping they will say, ‘Oh, the heck with it. What’s the use? I’ll just pursue it as a regular murder,’” he declared.
Chicago mayor Richard Daley, the former Cook County state’s attorney, attacked the commission’s recommendation of reducing the eligibility factors from twenty to five. He told the Chicago Sun-Times that eliminating the murder-for-hire factor was wrong. “Fabulous,” he said sarcastically. “Just think, you plot it, you do it and you say to somebody, ‘I’ll give you $50,000. Go kill so-and-so.’ You get the death penalty, but I will not. Very interesting. If that’s the rule in Illinois, you’ll have a big business in Illinois.”
He added, “Think about a terrorist. If I sit back and I plot everything and I tell other people to do it, you’re trying to tell me I’m not accountable? Then you’d better start thinking about history—what people did to people in the second world war—you don’t think those generals should be held accountable? They’d better be accountable. And it’s not just the person in those concentration camps. It’s everybody being held accountable.”
I thought that the commission understood the reality of the political situation in Illinois better than the death penalty opponents. A recommendation to repeal the death penalty right before an election would have been explosive throughout Illinois, and not necessarily in the direction that the opponents wanted. The reality was that endorsing an end to capital punishment at that time would become the major issue in campaigns all over the state. And regardless of the momentum the opponents thought they had built up, it was clear that a majority of Illinois residents—Illinois voters—still supported the death penalty. An official challenge to capital punishment from the commission might only serve to motivate supporters of the death penalty.
Also, if the commission called for the repeal of capital punishment, I would almost certainly have had to introduce that bill. There was absolutely no way that legislation abolishing the death penalty would survive the General Assembly in an election year.
From the very beginning of my questioning of the death penalty and how it was administered in Illinois, in the back of my mind two questions kept popping up—How is this going to end? What is at the end of the tunnel? At the beginning of my term, the answers to these questions were way in the future. I had four years. And when I declared the moratorium I still had three years left. I kept saying to myself that three years was plenty of time to find that conclusion. Now, with less than a year left, the “moral certainty” I was seeking had not yet materialized. I wondered if it ever would.
I had hoped that the moral certainty would, in large part, flow from the public. The public was beginning to see and understand the problems that I saw with the death penalty. They saw more men sentenced to death released from prison than prisoners on death row executed. The math was easy. The moral outrage at the injustice was easy. But, as I experienced from the beginning, there was moral outrage and math on the other side of the argument, as well. The math on the other side came from the number of victims of these crimes—many of them heinous, brutal murders. Families counted one less person at the dinner table at every holiday. And their moral outrage at the possibility that these men or women, convicted and sentenced by a court of law, might not be executed, was very strong and very certain.
With the report in hand, I started to list my options. And the first thing I had to confront was the distinct possibility that none or very few of the commission’s recommendations would be adopted or enacted. If that were the case, and I ended the moratorium before I left office in January 2003, everything would just return to the way it had been. I decided I couldn’t do that. Everything I had done and stood up for would be lost. A broken system would stay in place. There would be no reform, and police and prosecutors would just continue on as they had before 2000.
On the other hand, I could keep the moratorium in place, leave office, and do nothing else. That would throw the issue to the next governor. The next governor would either keep the moratorium or end it. There still was no guarantee of any reform at all.
The more I pondered this, neither of these options was acceptable. The attention that the issue had received had stimulated public debate. A vast number of people who previously had no opinion on the death penalty now did. But there still hadn’t been any real reform of the system. Yes, the Illinois Supreme Court had issued new rules for capital cases and the state’s attorney general had put some programs in place. It was a start, but I was certain those changes didn’t go far enough.
And even so, the new rules and programs only affected future cases. They didn’t do anything about the men and women that were already on death row—sent there, rightly or wrongly, by a broken system. The new rules wouldn’t affect them. The problem I faced was really what to do about the past as much as it was what to do about the future—maybe more.
I knew I would push for the reforms recommended by the commission. I felt confident that the antideath penalty lobby had grown in strength since I became governor such that they would continue their fight in front of the public and before the General Assembly no matter what happened there. Nobody could flatly dismiss death penalty reforms any longer, I hoped.
The more I thought about it, I realized that I was coming to the conclusion that eventually capital punishment would be abolished in Illinois. How or when, I didn’t know. It just seemed inevitable. But to deal with the past, well, that was up to me alone. And it was not a comfortable position. It was difficult. I had tremendous powers as governor to deal with the sentences of any person convicted of a crime in Illinois. These powers—to commute sentences and to pardon people completely for their crimes—were literally as old as the United States. From the beginning of the formation of the United States, the executive branch of the government had been given some authority to change the outcome of a criminal trial if it saw fit. And the thing about it was, there was no review of this power. It was my responsibility, and once I acted, that was it. No one could reverse me. I had the power to change the past.
The question was whether I would be able to. Could I bring myself to use it?