Exactly one month after the commission revealed its report and three weeks after I was a featured speaker at Harvard Law School, I proposed legislation aimed at enacting the reforms. The legislation included a ban on executing the mentally impaired, a reduction in the type of crimes that were eligible for the death penalty, and barring the death penalty when the conviction was based solely on the testimony of a jailhouse snitch.
“It is imperative that we move forward on all of the commission’s recommendations to fix our broken justice system,” I declared. “It is also imperative that through hearings and meetings, all of the key parties—the prosecutors, defense attorneys, victims, and the wrongfully convicted—are allowed an opportunity to offer their perspectives on these issues of life and death.”
By the account of the commission, these reforms would make the system vastly more expensive and Illinois was already severely financially stressed. The budget hole was estimated to be $2 billion! The state was in crisis mode. And the system was already expensive. Prior to the moratorium, the average time from imposition of a death sentence and execution was more than thirteen years. There was no doubt that, based on prior studies, the cost of executing a defendant was more than the cost of housing that defendant for life. Some were suggesting that the cost alone should be enough to persuade people to abolish the death penalty. There were others who were already on the record as saying that the answer was to delay or reject my legislative package.
Republican senator Kirk Dillard was taking the lead on the legislation, but even he conceded that there was not enough time left in the legislative session to do anything until the fall session began. “It took the governor’s commission nearly two years to put its recommendations together, and it took the governor’s office a month to reduce the commission report to legislation form,” Dillard said. “So, it is highly unlikely we will pass anything before we adjourn for the summer.”
Pate Philip, Illinois Senate president, was particularly critical of the reduction in the eligibility factors. “You have about twenty opportunities for the death penalty,” he said. “He’s just erased about fifteen of them. I don’t agree with the fifteen erased off.”
Cook County state’s attorney Richard Devine declared that he would be lobbying legislators, and that some of the proposals needed more study, such as videotaping of police lineups and the interrogations of suspects.
The introduction of the legislative package was almost simultaneous with three other developments in the death penalty world.
In Maryland, Democratic governor Parris Glendening suspended all executions and ordered a study be conducted on whether the death penalty in that state was racially discriminatory. Glendening was a lame duck like me—he was barred by statute from seeking a third term. He announced the moratorium and said he would not allow the execution of Wesley Baker to go forward.
“It is imperative that I, as well as our citizens, have complete confidence that the legal process involved in capital cases is fair and impartial,” he said. Although Glendening still supported the death penalty, he said, “Reasonable questions have been raised in Maryland and across the country about the application of the death penalty.”
Maryland, of course, was where Kirk Bloodsworth was the first person in the United States to be exonerated from death row by DNA testing.
Baker, who was sentenced to death for the murder of a white woman after he stole her purse in 1991 in a shopping mall, was among five men facing execution before the end of Glendening’s term. He had previously signed off on two executions and commuted a third defendant’s sentence from death to life in prison without parole. Maryland’s death row population of thirteen was tiny compared to Illinois. Nine of them were black and most of the victims were white and nine of the thirteen were convicted in suburban Baltimore County, prompting Glendening to say, “Use of the death penalty ought not to be a lottery of geography.”
Nine other states, including Virginia, Nevada, Arizona, Connecticut, and Delaware, were also conducting studies of the death penalty.
I was heartened to hear the news. I really had come to believe the problems with the death penalty system, particularly the arbitrariness of it, were an issue in every death penalty state, not just in Illinois.
But a more significant local development was the revelation that a group of defense lawyers had organized and were soliciting more lawyers to join their cause—submission of clemency applications for everyone on death row in Illinois, which now stood at 160 men and women.
The Chicago Tribune broke the news that the group was intent on filing petitions for all the condemned with the Illinois Prisoner Review Board, the state agency responsible for hearing testimony on such petitions and then forwarding recommendations to me, by the end of August so that I could consider them all before I left office in January.
The group, led by Northwestern’s Larry Marshall and Rob Warden and assistant Illinois appellate defender Chick Hoffman, intended to address what they believed was a fundamental question that had been left hanging. The reforms going forward were critical, but a look backward was equally important to consider the impact of the system on people who were already under a sentence of death.
The potential for clemency hearings for all death row prisoners would tax the fourteen-member review board, and there were fears being voiced that more resources would be needed. In the first two rounds of hearings so far that year, the board had heard just over 250 cases and about the same number would be routine for the rest of the year. But tacking on more than 150 additional cases would almost certainly require more attorneys and more hearing days.
That wasn’t my concern at the moment, however. I couldn’t control who would or would not file petitions for clemency or control what the review board did or did not do. Commutations of death row prisoners was not unheard of, but it was rare.
Since the reinstatement of the death penalty, a total of forty-five men and women had received gubernatorial commutations nationally. Only two—Earl Washington and Donald Paradis—were actually exonerated. In 1994, Virginia governor Douglas Wilder, a Democrat, commuted Washington’s death sentence for rape and murder to life in prison without parole. Washington was released in 2000 after he was exonerated by DNA testing in 2000. In 1996, Idaho governor Phil Batt, a Republican, citing the possibility of innocence, commuted the death sentence of Donald Paradis, who had been convicted of a 1981 murder. Subsequently, in April 2001, Paradis obtained a new trial based on a ruling that the prosecution had withheld evidence that supported his claim of innocence and the charges were dismissed.
The single largest act of commutation was in January 1991 in Ohio. Governor Richard Celeste, a Democrat who was an opponent of capital punishment, commuted the sentences of eight prisoners, including four women, who were on death row. He rejected a request from the state public defender to commute all 101 inmates on death row. Five of the eight defendants had diminished mental capacity or mental illness.
In 1986, before leaving office, New Mexico governor Toney Anaya, also a death penalty opponent, commuted the death sentences of all five death row inmates to life in prison.
Only one death row inmate’s sentence had been commuted in Illinois since the death penalty was reinstated. In January 1996, my predecessor, Governor Jim Edgar, a Republican, commuted the death sentence of Guinevere Garcia, who had been convicted of murder, even though she did not request clemency. The Tribune noted that as a result, the law was amended to require that death row prisoners give written consent to apply for commutations, except in circumstances where they are mentally or physically prevented from doing so.
The specter of commutation hearings for the entirety of the Illinois death row population was stirring the emotions of abolitionists and proponents alike. But it was bound to be most felt by the two groups most directly affected—family members of those who were on death row and the families of their victims. Soon, the media would begin—understandably—interviewing victims’ family members in great detail, stoking fires of emotion statewide.
Meanwhile, Cook County Chief Criminal Court judge Paul Biebel took a huge step toward pulling back the covers on the dozens of claims that Chicago Police lieutenant Jon Burge and men under his command had tortured suspects into giving confessions to murders. For years, torture claims had been advanced time and again, but demands for an in-depth investigation had fallen on deaf ears. Now, Biebel had appointed a special prosecutor to review the more than sixty cases. One in particular had been brought to my attention—that of Aaron Patterson, who was on death row for a double murder on Chicago’s South Side that he said he falsely confessed to committing after he was tortured by detectives working for Burge. In August 2000, Patterson had been granted a hearing by the Illinois Supreme Court to air evidence on the torture claims. That hearing was still pending. I realized that I was going to have to confront the Burge claims long before Biebel’s special prosecutor could get engaged and certainly before the judge hearing Patterson’s evidence would make any kind of a ruling.
If I felt pressure starting to build, I refused to show it and in fact was more determined than ever to push ahead with the commission reforms. In June, I spoke via closed circuit television to a US Senate subcommittee chaired by Wisconsin Democratic senator Russ Feingold, a death penalty opponent who had introduced legislation calling for a suspension of the federal death penalty and formation of a national commission to study the death penalty system in all states with it.
Feingold said, “There’s no question in my mind that there will be significant changes in the death penalty system in America. And when someone writes the history . . . the most important name will be George Ryan.” That was flattering and it made me feel good, even if I thought it was an exaggeration.
Pushback on the recommendations of the commission was voiced at the hearing. Kent Scheidegger of the Criminal Justice Legal Foundation in California said that death penalty appeals should be limited to an average of four years. That proposal got a sharp rebuke from Larry Marshall who noted that exoneration cases can take many years before evidence of innocence is discovered and scores of innocent people would have been executed by that time. And Druanne White, a South Carolina prosecutor, contended that the proposed reduction in the aggravating factors—the crimes that qualified for a death sentence—would adversely affect the rights of victims.
Scott Turow, a member of my commission, also testified at the hearing. “Capital punishment is invoked in cases where emotions are most likely to hold sway and where rational deliberation is most problematic for everyone,” he declared. “Because this is a system which in rare instances tempts bad faith, it is a system that I believe merits the enhanced safeguards that our commission has proposed.”
In my remarks to the subcommittee, I quoted the conclusion of the commission 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.
“That is a powerful statement,” I said. “It is one that I will ponder. In the meantime, I do know this—I said two years ago, and I say now, until I can be sure that everyone sentenced to death is truly guilty, until I can be sure with moral certainly that no innocent man or woman is facing a lethal injection, no one will meet that fate.
“We all want to punish the guilty. But in so doing, we must never punish the innocent,” I said. “We must protect the innocent. It is fundamental to the American system of justice.”
Just days after the hearing, the US Supreme Court ruled that executing the mentally impaired was unconstitutional, ending a long and hard-fought battle by advocates and lawyers representing death row inmates with diminished mental capacity. The Illinois legislature had passed a law that spared the mentally ill from the death penalty, but Governor James Thompson vetoed it. My commission had recommended abolishing the execution of the mentally impaired. It appeared that the US Supreme Court had taken that fight off the table in Illinois.
I thought the ruling was an excellent decision and I said so publicly. “I think it’s long overdue,” I said. “Why would you put a mentally [impaired] person like Anthony Porter—why would you put a guy like that on death row? Even if they committed the crime,” I said. “I never understood that.”
The Chicago Tribune estimated that at least ten current death row inmates in Illinois might be affected by the decision. The newspaper also reported that nationwide, perhaps as many as forty inmates whose mental capacities were under the commonly accepted benchmark of an IQ of seventy, had already been executed. For them, the ruling was too late. I felt that was just egregious.
Larry Marshall summed up my feelings perfectly. “It didn’t just start to be cruel and unusual punishment and yet we have killed scores of people. This ruling speaks loudly about the death penalty and where the country and the courts are going.”
Not long after, I finally met Anthony Porter in person. He brought his family with him. His mother, Clara, was handicapped and needed a wheelchair. When no one could find a wheelchair for her, someone brought a desk chair with wheels to the curb and they rolled her into the building.
When I was informed they were coming, but were being delayed while someone fetched the chair, I said, “There’s got to be a wheelchair in this building. Get a wheelchair and bring it and put her in it and bring her upstairs.”
So, the security guards hustled around and found a wheelchair and took it downstairs and put her in it and wheeled her upstairs with Porter and the rest of his family.
Anthony was uncomfortably buttoned up in a suit and tie. I imagined, though I did not ask, that it was probably the suit he was supposed to be buried in. Not unexpectedly, he was not an articulate man. His IQ had been measured at around fifty-one. But as best he could, he described the indignities and sufferings of being incarcerated for seventeen years. Most importantly, he really didn’t understand why.
As we sat in my office sixteen floors above the bustle of traffic along Randolph Street, Porter described life on death row and how, in preparation for his death, the guards had asked him to order the traditional last meal and had measured him for the burial suit and for a coffin. He spoke calmly in a matter of fact way. To me, it felt cold and premeditated.
I realized that’s just what it was. And I realized that Anthony Porter had become, for me, the face of death row. I also realized that I was very much in uncharted waters.
When they left, I told them to keep the wheelchair.