Editor's Notebook: It's time to rethink and recast the death penalty statute

Charles Walker went first. Each of us who watched him die on that September morning in 1990 had our own reasons for being there.

As a Statehouse reporter for public radio some 14 years earlier, I had watched legislators approve, and the governor sign, the 1977 law reinstating capital punishment. Walker’s execution was the first under that law, and the first in Illinois in 28 years. I had, I reasoned, reported on the policy as it was approved; I should be willing to report firsthand as it was carried out.

In retrospect, Walker’s crime seems less heinous than senseless. He spent half his adult life in a drunken rage. He spent the other half in the state pen, beginning a stint at Menard before the age of 20. Walker committed four felonies and served four prison terms between the winter of 1958 and the summer of 1983. That’s the summer he met and killed Kevin Paule and Sharon Winker, an engaged couple in their 20s, near Mascoutah in southwestern Illinois. He took two lives for little more than $40 in beer money.

On the afternoon before he was executed, a colleague and I drove to the old Stateville prison near Joliet. We were glued to the radio the whole way. Gov. James Thomspon, who had put his name to the law under the glare of national television lights, had already rejected pleas to commute the sentence. And in the hours before the execution, the Illinois Supreme Court and the U.S. Supreme Court rejected last-minute efforts at delay.

We arrived at the prison sometime before dusk. After officials checked the name of each media witness, reporters were escorted through a series of locked gates, patted down and held in a guarded area for several hours. We were issued a pad of paper and something to write with, then marched single-file to the execution chamber.

After what seemed an endless wait, curtains opened to reveal Walker on a glassed-in stage, covered with a sheet and strapped to a gurney. An intravenous tube in his right arm was attached to a machine, hidden from view, that would deliver lethal doses of sodium pentathol, pancuronium bromide and potassium chloride. The first was to put him to sleep, the second to stop his breathing and the third to stop his heart.

Walker looked at us, gave a slight nod and turned to stare at the ceiling. I reported that the process seemed disconcertingly clinical, and that it seemed to go without a hitch.

Walker was pronounced dead at 12:12 a.m. on the 12th.

Things were so much simpler then. There was no question Walker was guilty. He wanted to die. And the sentencing statute was narrowly drawn.

Much has changed. Prosecutors have sent innocent men to Death Row. There’s evidence the death sentence is applied inconsistently, raising concerns about arbitrariness. And, over the years, the statute governing capital punishment in Illinois has been larded with so many types of murder that qualify someone for a death sentence that it can be argued the penalty isn’t restricted to the most heinous crimes. In 1977, there were seven death-qualifying factors. Now there are 20. Most of them were added in the decade after Walker’s execution. No new reasons for mercy have ever been added to the statute.

After 25 years, it’s time to rethink and recast Illinois’ death penalty statute. Or scrap it. That won’t be an easy assignment. It took policymakers five years and two tries to craft a law that would meet court standards — and they faced the political pressures of having no capital punishment at all.

In 1972, the U.S. Supreme Court swept away death penalty laws throughout the nation, including this state’s, ruling capital punishment had been applied capriciously and challenging the states to wrestle with whether it is “cruel and unusual.” The justices then decided in a series of cases that capital punishment can be used if a statute specifies which types of murder are covered and narrowly defines the standards by which the law can be applied.

Now, Illinois’ capital punishment system is reaching another crossroad. Some have called it a crisis. Gov. George Ryan is even considering whether to take the unprecedented step for this state of commuting to life in prison the sentences of everyone on Death Row (see pages 6 and 39). Nearly three years ago, he did take the unprecedented step of halting executions until the system could be fixed.

How bad is it? Eleven men were executed under the 1977 law after Walker got his wish. John Wayne Gacy, who has been called the worst mass murderer in U.S. history, was second. Andrew Kokoraleis, who was executed for rape, torture and murder, was the last. But another 13 men walked off Death Row. Some were innocent.

The governor appointed a commission, including judges, prosecutors and defense attorneys, to assess the extent of the problem. They spent two years at the task, finishing in April. We have reported on the findings and recommendations in other issues of the magazine (see October 2001, page 30, and June, page 17). And the full report is available at www.idoc.state.il.us/ccp/ccp/reports/commission_reports.html. At more than 200 pages, it makes for some serious, and seriously important, reading.

Where to now? Lawmakers could, as Ryan hopes, take up some of those 85 suggested reforms as early as this month when they return for their fall veto session.

But whenever this state’s politicians decide to face the issue head on, they could bring order to their deliberations simply by considering first some of the recommendations aimed at addressing problems identified in those 13 wrongful conviction cases. The governor’s commission hit on a few common themes in those cases:

little solid evidence connecting those who were charged with the crime; uncorroborated testimony of so-called jailhouse snitches; and questions about the reliability of eyewitness evidence.

The group recommends, for starters, that no murderer be sentenced to death if the conviction was based upon the uncorroborated testimony of a single eyewitness or accomplice. And that the uncorroborated testimony of a snitch concerning the confession or admission of the defendant not be the sole basis for the imposition of a death sentence.

Commission members were not unanimous on some suggestions, including videotaping interrogations of suspects and modifying procedures for line-ups and photo spreads.

But the most politically controversial recommendation, aimed at narrowing eligibility for the death sentence, got unanimous agreement: The current list of 20 circumstances for eligibility should be eliminated in favor of a simpler, narrower group of criteria.

A majority recommended just five well-defined factors: The death penalty, they argued, should be applied only in cases where the defendant has murdered two or more people; or where the victim was a police officer or firefighter; or an officer or inmate at a correctional institution; or was murdered to obstruct the justice system; or was tortured in the course of the murder. The commission made a point of eliminating the catch-all category of murder in the course of a felony. “While commission members believe that all murders are very serious,” they wrote, “the death penalty should be reserved for only the most heinous of these crimes.”

They recommended banning executions of the mentally retarded and expanding possible reasons for mercy. A narrow majority would even favor abolishing the death penalty, some of them on moral grounds.

I’m free now to report that I’m against the death penalty on moral grounds, too. I was when I watched passage of the new law, when I interviewed an early resident of Death Row, when I was allowed to examine the electric chair, a primitive relic that was phased out later, and when I watched the state kill Charles Walker with a scientifically calibrated stew of drugs.

But the vast majority of Illinoisans don’t agree. The most thoughtful of those folks argue society should express condemnation of the most terrible crimes. And they believe that if we do so, we should make certain the punishment is fair, just and accurate.

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