Death row in Illinois began repopulating just two months later. In late February, a jury in downstate Coles County convicted twenty-six-year-old Anthony Mertz of murdering twenty-one-year-old Shannon McNamara, who was found dead in her apartment in Charleston, Illinois, the home of Eastern Illinois University, which both had previously attended.
There was no imminent danger of being executed, however. First, there were years of appeals to go, but just as significant, my successor as governor, Rod Blagojevich, had said that he would not consider lifting the moratorium until death penalty reforms were enacted by the General Assembly.
Two months later, in April 2003, in a development that the Chicago Tribune called “little short of amazing” considering the fierce opposition just months earlier before I emptied death row, the legislature finally passed death penalty reform legislation—not all of it, but perhaps some of the most important recommendations.
Perhaps the most significant and also controversial—videotaping of not only confessions but the interrogations leading up to the confessions in homicide cases—sailed through the Senate without a vote in opposition. A bill also passed that banned execution of the mentally impaired and also defined how such a determination would be made. The Illinois Supreme Court was given authority to overturn death sentences as a manifest injustice rather than requiring some legal inadequacy or shortfall to set such sentences aside. Greater access to DNA testing was authorized. The number of “aggravating factors,” those that qualified crimes for the death penalty, was reduced, narrowing the pool of cases where prosecutors could seek the death penalty. Jailhouse informant testimony would be eligible for pretrial scrutiny. In addition, pilot programs were established to begin the process of using sequential lineups, a procedure in which witnesses are shown photographs of possible suspects one at a time instead of in a group. Group photographic arrays had been shown to result in mistaken witness identifications when witnesses made a comparative judgment and picked the person who most looked like the suspect they believed they saw.
The legislation still had to be approved by Governor Blagojevich, but all indications pointed to that happening not too far down the road. The videotaping bill, championed by Democratic state senator Barack Obama, would make Illinois the first state in the nation to require such taping by law. Two other states, Minnesota and Alaska, required the taping of interrogations as a result of court rulings.
Shortly after the legislation passed through both the Senate and the House, Blagojevich said that he was not going to end the moratorium “anytime soon.”
He told the Chicago Tribune editorial board,
The decision for me on an issue like lifting the moratorium won’t be driven by what happens in the state Senate or the House. It will be driven by whether or not the system in Illinois has been reformed in such a way where we can have no doubt that we’re [not] going to make any mistakes. And it begs the question of whether we can ever get to a point in Illinois that we can feel comfortable with that.
He indicated that he thought the reforms did not go far enough yet—that there needed to be more provisions to fund defense for indigent defendants. He wouldn’t commit to what it might take to result in a suspension of the moratorium.
“I’m not going to promise that we’re not going to lift it. I don’t know,” he said. “But it’s certainly not imminent and I have not seen anything to suggest that we can feel confident that the system is foolproof.”
In July, Blagojevich signed the legislation, a package of six bills, that included the videotaping measure as well the other reforms passed by the General Assembly. Also included were provisions aimed at stopping racial profiling by police making traffic stops as well as requiring the expunging of arrest records of defendants later determined to be innocent.
Obama, who by then was a Democratic candidate for president, said the videotaping of interrogations was “landmark legislation.” He added, “With this law in place, it’s going to be much harder to convict an innocent person based on a false conviction. Conversely, it can be a very powerful tool to convict the guilty.”
The reaction to my decision to empty death row was about what you would expect. Families of victims and prosecutors were deeply upset and were vocal about saying so. Death penalty opponents praised the action and hoped it would—as it apparently did—spur the legislature to get off its hands and do something to reform the system.
The Illinois attorney general’s office filed a lawsuit challenging the commutations, in particular the commutations of about two dozen death row inmates who had refused to sign clemency petitions as well as a handful of cases involving inmates whose death sentences had been set aside by the courts and were waiting resentencing hearings.
In January 2004, the Illinois Supreme Court ruled that all the commutations were valid. “This is a difficult question with little to guide us, but we believe that the grant of authority given the governor under [the Illinois Constitution] is sufficiently broad to allow Governor Ryan to do what he did,” wrote Justice Bob Thomas, one of the most conservative justices on the court.
Larry Marshall, one of the lawyers who argued in favor of the legality of the commutations, summed it up perfectly.
“The fact the Supreme Court spoke not just unanimously and resoundingly, but spoke through the voice of its most conservative justice is a very strong testament to the message that the court wanted to send here, which is that agree or not agree as a matter of policy with what the governor did, there is no legal or constitutional question about his authority and the legitimacy of what he did,” Marshall declared.
That same month, the last death penalty reform from the original package finally was passed. The legislation outlined a disciplinary process for police accused of testifying falsely on the witness stand. At a bill signing ceremony, my old friend, Democratic senator Emil Jones—the man I played pool with so many years ago when I was just a freshman legislator—was there.
“The system was so flawed it could cause a guilty person to go free and an innocent person to be incarcerated,” Jones said. “This piece of legislation will go a long, long way to assuring that we in Illinois have a fair and just criminal justice system.”
I couldn’t have said it better. But then, I had been saying it for years.
The moratorium was never lifted. Eight years later and more than a decade after I imposed the moratorium, the death penalty finally died in Illinois. In March 2011, Governor Pat Quinn signed a bill that made Illinois the sixteenth state to abolish the death penalty.
“I have concluded that our system of imposing the death penalty is inherently flawed,” Quinn declared. “Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it.”
If I had been asked when I left office whether Illinois would ever abolish the death penalty, I likely would have said, “Probably not in my lifetime.”
In my first year as governor in 1999, ninety-eight people were executed in the United States. It was, and still remains, the highest number of executions in a single year since the reinstatement of the death penalty.
The number of executions began dropping gradually after that. In 2002, my last year in office, sixty-six people were executed. In 2016, twenty people were executed, the lowest number since 1991 when fourteen people were executed.
The number of death sentences imposed nationally dropped during that same time. In 1998, 295 people were sentenced to death in the United States. In 2019, only thirty-four death sentences were imposed.
At the same time, the number of states with the death penalty has dropped. When I imposed the moratorium in 2000, the death penalty was in place in thirty-eight states. As of this writing, the total is down to twenty-eight. In addition to Illinois, nine other states have abolished the death penalty: New York, New Jersey, New Mexico, Connecticut, Maryland, Delaware, Washington, New Hampshire, and Colorado. In addition, three states have moratoriums in place: Oregon (2011), Pennsylvania (2015), and California (2019).
Ten death penalty states haven’t executed anyone in at least ten years, and some have gone more than one-quarter of a century without an execution.
Wyoming and Kansas last executed someone in 1992. Oregon’s last execution was in 1997. Pennsylvania last executed anyone in 1999. The last executions in California, North Carolina, Nevada, and Montana were in 2006. Kentucky’s last execution was in 2008 and Indiana’s last execution was in 2009. In 2020, Utah and Louisiana will pass the ten-year mark without an execution.
One could argue that after setting aside these twelve states where there have been no executions in at least a decade, the number of “active” death penalty states is really sixteen, not twenty-eight. In 2019, US attorney general William Barr said that the executions of condemned federal prisoners would resume, although it was unclear how soon any of the sixty-two defendants on the federal death row would be executed. The last federal execution was in 2003.
At the close of 2019, the Death Penalty Information Center reported that for the fifth consecutive year, less than thirty executions were carried out and fewer than fifty death sentences were imposed. In fact, in 2019, twenty-two executions were carried out and just thirty-four death sentences were imposed. Perhaps just as significant, the death row population in the United States dropped for the eighteenth consecutive year. In 2000, the year I declared the Illinois moratorium, the death row population in the United States was about 3,700. By the end of 2019, the total stood at less than 2,700, a drop of about 28 percent.
There are those who say that my declaration of the moratorium rekindled the antideath penalty movement in the United States. There is no doubt that the death penalty system has declined in the years since then as a result of many factors, including zealous advocacy by defense lawyers, intrepid reporting by journalists, and courageous action by politicians and policy makers. I will leave it to the historians to assess the impact of my actions.
Nonetheless, I am proud to have played a part in preventing the possible executions of innocent people and proud to have played a role in reforming the criminal justice system.
It was not a path I expected.
But it was a path I am glad I took.