The topic of the death penalty is always weighty. Fear, morality, religious beliefs, often-shocking violence, the mourning of victims’ families and our ideas of what justice should be all come into play.

Those emotions surfaced again as Illinois lawmakers debated and ultimately passed legislation to abolish executions in the waning hours of the two-year legislative session that ended in January. And the state’s dubious history of wrongful convictions made the subject even thornier.

In 1972, the U.S. Supreme Court found that the process of sentencing people to death, which gave a jury full discretion on sentencing, could result in inconsistent and arbitrary death sentences and constituted “cruel and unusual punishment.” The ruling (Furman v. Georgia) nullified death penalty statutes across the country. That resulted in the commutation of more than 600 sentences and effectively led to a brief break from the death penalty while states across the country, including Illinois, redrafted their capital punishment laws. 

Illinois reinstated the death penalty in 1973, but the Illinois Supreme Court ruled the new version of the statute unconstitutional, in part because it violated the requirement for a direct appeal of capital cases to the Supreme Court. Illinois legislators passed a new version in 1977, after other states’ newly written statutes survived challenges and were upheld by the U.S. Supreme Court in the Gregg v. Georgia ruling. Former Supreme Court Justice John Paul Stevens, a Chicago native who was seated about six months before the ruling, was a co-author of the decision. Stevens’ views on capital punishment grew more moderate over his time on the court, and he took several votes to limit its scope. He recently wrote an essay that was highly critical of the death penalty for the New York Review of Books. 

Illinois Issues reported a few weeks before the General Assembly voted to reinstate capital punishment in 1977:

“Few issues stir public passions and individual soul-searching as much as capital punishment. Legislative debate and public hearings sometimes become forums for scriptural exhortations, libertarian denunciations, legal analyses and a variety of emotional outbursts. There is no doubt, however, that the public, like its lawmakers, is firmly in favor of the death penalty as the best way to deal with murderers. Yet, vocal opponents claim murder by states is no less perverse or senseless than murder by individuals. 

With last summer’s U.S. Supreme Court ruling (Gregg v. Georgia) upholding capital punishment within certain strict guidelines, Illinois, like the rest of the states, is rushing to revive the death penalty. …. Yet, there are profound and persistent questions in the capital punishment debate that have gone unanswered for centuries as civilized societies have sought ways to protect themselves and punish criminals. Against this backdrop, it is only a matter of time before an Illinois governor signs the death penalty into law,” Illinois Issues reported in 1977. 

Since the 1970s, many of the states that reinstated the death penalty have sought to perfect the legal process, which is always open to human error, as well as to determine the most humane way to carry out the ultimate punishment. A few of those states have since chosen to forgo capital punishment, and execution numbers are down in recent years.

According to a report by the Death Penalty Information Center, based in Washington, D.C., executions in America dropped 12 percent in 2010 from 2009. The number of executions has dropped by more than half since 1999. Twenty-six of the 53 jurisdictions in the United States — which includes the 50 states, the District of Columbia, the federal court system and the military — either do not have the death penalty or have not executed anyone in the last 10 years, and many have not executed anyone since capital punishment was reinstated nationally in 1976. A dozen states executed prisoners in the last year. Illinois, which has executed 12 prisoners since reinstating the death penalty, last carried out an execution 1999.

2010 marked the 10th anniversary of Illinois’ moratorium on the death penalty. Former Gov. George Ryan, then a supporter of capital punishment, called for Illinois to take a break from using it after 13 prisoners on death row were exonerated. He created a Commission on Capital Punishment and tasked its members to propose reforms to Illinois’ flawed death penalty system. Ryan also commuted the sentences of 167 death-row inmates to life in prison shortly before leaving office in 2003. 

From the executive order creating the commission: “The people of the State of Illinois must have full and complete confidence that when the death penalty is imposed and final appeals of that sentence are completed, the guilt of the defendant has been justly, fairly, thoroughly and accurately established.”

Ryan’s commission found serious problems in the system. Some of the individuals who had been exonerated were convicted without any physical evidence to tie them to the crimes. Some were sent to death row based solely on testimony from individuals who would potentially benefit from their statements, such as prison informants or accomplices. “In some cases, the evidence was so minimal that there was some question not only as to why prosecutors sought the death penalty, but why the prosecution was even pursued against the particular defendant.”

A study that was conducted in tandem with the commission’s assessment of Illinois’ death penalty process found that the odds of a defendant receiving a death sentence had a correlation to both the geographic location of the crime and the race of the victim. Killers in rural areas were more likely to be sentenced to death. “All other things being equal, the study showed the odds of a convicted killer in Cook County receiving a death sentence are 84 percent lower than for a similar defendant in the state’s rural counties,” Daniel Vock, now a reporter for Stateline.org in Washington, D.C., wrote in an Illinois Issues article on the study. Someone who killed a black person was 60 percent less likely to receive a death sentence. “While [the study] did find that white offenders were twice as likely to receive death sentences as blacks on a percentage basis, that distinction vanished once researchers factored in the victim’s race.” Studies on other states and the federal system found similar results. 

Ryan’s commission made 85 recommendations intended to improve the system. The General Assembly enacted reforms in 2003, including:

• Reliability screenings for testimony from criminal informants.
• Access to DNA databases both before trial and after conviction.
• A specific set of instructions that must be given to witnesses before they pick suspects out of police lineups.
• Prohibiting prosecutors from seeking the death penalty in cases that are based on a single witness’s testimony with no corroborating evidence.

The reforms broadened the Illinois Supreme Court’s ability to overturn capital cases. They also require trial judges who disagree with a jury’s decision to impose a death sentence to submit their opposition in writing for the record. Another bill, which passed separately from the larger reform package and requires police officers to make a video recording of murder confessions, was sponsored by then-Chicago Democratic Sen. Barack Obama. 
Former Chicago Democratic Rep. Art Turner, the sponsor of a 2003 bill to repeal the death penalty, did not believe the changes went far enough. “If I’m not around [in the legislature] five years from now,” Turner told Illinois Issues in 2003, “you can say that Art Turner said that those reforms are not going to change a damn thing.”

Others, however, heralded the changes as real reform, and current supporters of capital punishment, including many states’ attorneys, say they have worked. 

Although Illinois has not executed anyone in more than 10 years, prosecutors have continued to seek the death penalty, with 15 prisoners sitting on death row when the General Assembly voted to abolish executions. The Capital Litigation Fund has spent more than $100 million since it was created in the 2003 reform push to aid defendants in building their cases when prosecutors seek the death penalty. About $17 million was spent from that fund on capital cases last year. Under the legislation to end the death penalty, the money from that fund would go toward services for victim’s families and training for law enforcement. 

The debate in both chambers of the General Assembly was emotional and even gruesome at times, when speakers recalled some of the most violent crimes in the state’s past. While the issue is not one with much potential for middle ground, there were concerned individuals making earnest pleas on both sides. Both sides have tragic stories of lives destroyed. Both sides have support from crime victims’ families. The Commission on Capital Punishment’s report said, “Surviving family members expressed diverse views on the system and the question of capital punishment itself.”

Legislators who support the death penalty say they may introduce bills in the current session to reinstate it. It’s likely that the debate about whether the state should have the option to put prisoners to death for the most heinous of crimes will likely always be with us, and capital punishment will continue to be a significant part of Illinois history.

During House debate, Rep. Susana Mendoza said she supports the death penalty and admitted to experiencing emotional turmoil over the issue. She said she thought she could personally execute a serial killer or someone who murdered a police officer and easily sleep at night. However, her decision to vote for the repeal came after she put aside her own emotions and acknowledged how flawed Illinois’ system has been.

“We’ve come horrifyingly close to executing innocent men, and it could happen again,” Mendoza said.

Moving forward, public officials should follow Mendoza’s lead to put aside the emotion and shocking details, tone down the rhetoric, retrace the history and seek to do what they see as truly best for the state — be it abolition or implementing a drastic revamp of the capital punishment system and revisiting other potential reforms.

Illinois Issues, February 2011