Landmark Illinois struggle with death-penalty system

A commission divides on abolishment, but suggests fixes so costly, they'd be a de facto death-penalty ban.

Accolades rolled in two years ago when Illinois Gov. George Ryan declared a moratorium on executions in his state. Now comes the hard part.

With a new report from his capital-punishment commission released this week, the governor must decide which of its controversial recommendations he'll support. Then he'll have to find the resources to fund them. It could be an expensive process.

But the system now in place in Illinois and many other states – with its own high costs of litigation – can lead to serious problems. Innocent people have been convicted, and, the commission found, the death penalty is applied unevenly among the population.

Now, all eyes are on Illinois to see whether it's willing to spend substantially more money to further improve the system – or even to abolish it.

"The whole world is watching," says Charles Hoffman, a death-penalty defense attorney in Chicago and an opponent of capital punishment. "Most states ... are in denial" that a problem even exists.

Here in Illinois, however, the evidence of problems in the death-penalty system is well documented. Since 1977, when the state reinstated the death penalty, 12 people have been executed, but 13 have been removed from death row after their capital convictions were thrown out.

"All 13 cases were characterized by relatively little solid evidence," the commission concluded. "In some cases, the evidence was so minimal that there was some question, not only as to why the prosecutor sought the death penalty, but why prosecution was even pursued against the particular defendant."

For example, two men were convicted of a 1978 double murder because the prosecution's leading witness, a 17-year-old, claimed to be their accomplice. But they were released after DNA showed they didn't commit the crime.

Nationwide, since 1973, 100 people sentenced to death have had their capital-punishment convictions thrown out. The latest, in Arizona, was exonerated earlier this month by post-conviction DNA testing.

The Illinois report is likely to receive plenty of attention, because of the makeup of the commission itself. It includes former US Sen. Paul Simon; former FBI Director William Webster; a retired judge; former prosecutors; and public defenders. In its exhaustive investigation, the commission looked carefully at more than 250 cases in which Illinois imposed a death penalty. The commission was split – 8 in favor, 5 against, 1 abstaining – on the issue of abolishing the death penalty. Its report contains 85 recommendations for how to fix the system – from initial police interrogations all the way to post-sentencing review.

Many Illinois state prosecutors characterized the recommendations as a de facto abolishment of the death penalty.

"These are, in large part, additional ways of making police and prosecutors' jobs so much more difficult than they already are as to make it virtually impossible to obtain a death-penalty conviction," said Robert Haida, a prosecutor in St. Clair County, Ill.

When Illinois reenacted capital punishment in 1977, only seven types of murders qualified for the death penalty under state law – including multiple murders, the killing of a police officer or a prison guard, and contract killings. But since 1989, the number of eligible crimes has grown to 20. The commission unanimously agreed that the list should be cut to half a dozen or so.

What it couldn't agree on was whether to include murders that happen during another felony, such as an armed robbery. A majority of the commission claimed that as the list of felonies grows, almost any murder case would qualify for the death penalty. A minority wanted to keep it, noting that almost every death-penalty state includes it as a capital offense.

Dropping that factor would dramatically cut the number of capital cases in Illinois. By itself, murder in the course of a felony accounts for just more than 40 percent of death-penalty verdicts.

Illinois now has about 160 people on death row. Trimming thenumber of death-penalty cases could help the cash-strapped state, since many of the commission's other ideas involve large funding increases.

"There's a net cost associated with the death penalty," says Richard Dieter, executive director of the Death Penalty Information Center in Washington, and critic of the capital-punishment process.

He cites a Duke University study, that shows a capital punishment case costs the system $2 million. Even factoring in prolonged incarceration, the dozen states without death penalties spend less on processing and jailing murderers, he says.

In one costly commission proposal: the state would compel police to videotape their interrogations of suspects involved in capital cases. Although some states, such as Alaska and Minnesota, already do this, some Illinois police balk at the added costs in equipment and manpower. It would burden small departments in particular. About half of the state's 1,100 police departments have 10 or fewer members.

Another costly proposal is to increase DNA testing – which has proven particularly telling in establishing guilt or innocence. The commission also calls for more training of officials involved in death-penalty cases, as well as measures that would get public defenders involved early.

Observers don't expect rapid action in the legislature. The governor has said he'll study the report carefully and probably won't lift the moratorium on executions. His term is ending, and a political scandal involving several of his campaign staff has eroded his political capital.

"There isn't going to be an instantaneous package of legislative reforms that will – bingo! – accomplish what it's supposed to accomplish," says Locke Bowman, of the University of Chicago law school.

Some death-penalty opponents hope the state will abolish capital punishment once the costs of reform become clear. Others worry Illinois will enact piecemeal reforms that satisfy the public but don't fix the system.

"What I'm afraid of is Illinois will lead the country in a 'new and improved' death penalty," says David Lane, a Denver defense attorney with two clients currently facing the death penalty. "Really, many of the flaws addressed by the panel have been superficially band-aided over."