Deadly Equation: Decision to impose IL's ultimate sanction is affected by location and race
When Gov. George Ryan suspended Illinois executions more than two years ago, he cited the failure of this state’s capital punishment system to prevent innocent men from landing on Death Row. At the same time, he charged a special commission with suggesting reforms. Last April, the 14-member panel offered 85.
But a study conducted alongside that top-to-bottom inspection of the death penalty process points to other disturbing shortcomings for which there may be no ready solutions: The decision to impose this state’s ultimate sanction is greatly affected by where a murder occurs and the race of the victim.
What’s more unsettling is that Illinois isn’t alone in this.
Panel members, which included judges, prosecutors and public defenders, examined every step in the system from police interrogations to the governor’s clemency proceedings. But they also asked two out-of-state scholars to do a statistical analysis of nonlegal factors that could play a role in determining whether a defendant receives a sentence of death.
The state gave Glenn Pierce of Northeastern University in Boston and Michael Radelet of the Univer-sity of Colorado in Boulder unprecedented access to confidential state corrections records, Chicago homicide data, federal homicide reports and other information from state and local law enforcement sources. Pierce, whose specialty is information technology, has worked with the federal Bureau of Alcohol, Tobacco and Firearms to analyze sources of guns used in crimes. Radelet, a nationally noted expert on the death penalty, previously chaired the sociology department at the University of Florida, where he conducted several studies of that state’s capital punishment system before moving to Colorado.
Their joint review of 5,310 first-degree murder convictions during the 10-year span from 1988 to 1997 concluded that defendants were much more likely to receive a death sentence for first-degree murder in rural areas of the state than in urban areas. In fact, 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. Further, the study revealed that, after factoring in such variables as the number of victims or the defendant’s prior convictions, defendants who kill blacks are nearly 60 percent less likely to face the ultimate sanction than those who kill whites. While Pierce and Radelet 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.
“This pattern of findings raises important concerns about how the death sentence is imposed in Illinois,” they wrote.
Other states face these concerns, too. Last month, Maryland Gov. Parris Glendening, a Democrat, suspended executions in his state, pending the outcome of a state-funded study expected in September on geographic and racial factors in Maryland’s death penalty system.
There are indications Maryland faces the same nonlegal disparities uncovered in the Illinois survey. Nine of that state’s 13 Death Row residents are black, and all but one received the death sentence for killing whites. Meanwhile, homicide rates are 10 times higher in Baltimore than in Baltimore County, yet defendants from Baltimore County comprise 70 percent of Maryland’s Death Row population. At least part of the reason for the disparity is that the Baltimore County prosecutor has sought the death penalty in nearly all eligible cases for the last two decades.
Ten states, including Maryland and Illinois, have been undergoing state-sponsored reviews of their capital punishment systems, according to the Death Penalty Information Center. Researchers also routinely conduct independent examinations of state death penalty systems. And in all of the states where such studies have been conducted, researchers highlighted geographic and racial dispar-ities. Thus, Pierce says, while the findings for Illinois are disturbing, they are in-line with the experiences of other death penalty states, as well as the federal government. Separate examinations of Florida’s and North Carolina’s capital punishment systems, for instance, concluded that defendants convicted of killing whites are about 3.5 times as likely to receive a death sentence as those who kill blacks.
Historically, empirical analyses have shown that the race of the victim seems to play a role in how capital punishment is meted out. In 1990, the U.S. General Accounting Office compiled the results of 28 prior studies on race and the death penalty. It concluded that 82 percent of those studies found the victim’s race influenced the decision to impose the death penalty. The vast majority of the studies conducted since then have yielded the same results.
“Race of the victim is the lowest common denominator in all of them,” says Richard Dieter, director of the Death Penalty Information Center.
But in Kentucky, such findings prompted more than handwringing. Researchers were able to show that blacks accused of killing whites were more likely be charged with a capital offense by a prosecutor and to be sentenced to death by a jury compared to any other group of defendants. As a result, Kentucky enacted a “Racial Justice Act,” which allows defendants facing the death penalty to use statistics to show the decision to impose capital punishment was based on race.
Kentucky is the only state with such a law.
That statute is unique because it gives defendants a statutory tool to make such arguments, though the U.S. Supreme Court has ruled that defendants must show racial discrimination in their individual cases, rather than in a death penalty scheme as a whole, in order to gain relief.
Though race appears to be such a strong factor in capital cases, the trend is hard to explain. Cook County Public Defender Rita Fry, a member of Ryan’s commission, suggests that arguments at the sentencing hearing tend to focus a jury’s attention on the value of the victim’s life compared to the defendant’s. Most jurors tend to be white, argues Fry, so they might subconsciously put more value on the life of white victims.
Such tendencies are nearly impos-sible to erase from the system, Fry concludes. “The best thing we can do is shine a light on the problem to let people know that this is a problem that needs to be fixed.’’
Radelet agrees. If states find a way to eliminate race from death penalty decisions, he says, “it would be the only aspect of our society where discrimination is not present.”
And regional disparities, like the effects of race, showed up in studies of the federal system and other state systems.
For example, Virginia defendants are twice as likely to face death for first-degree murder in rural areas than in urban areas, according to one study released in December. A separate evaluation of Nebraska’s system, the most comprehensive of any state’s to date, found that both regionalism and the race of the victim appear to have influenced sentencing. But the urban-rural contrast overshadowed the racial factor in Nebraska.
Regional disparities also are prevalent in the federal system, according to a recent U.S. Department of Justice review. That study found that a small number of U.S. attorneys are responsible for 40 percent of death penalty prosecutions, while a fifth of the nation’s federal prosecutors never seek capital punishment. Further, a New York Times survey, conducted in 2000, found that more than half of the cases in which the death penalty is sought come from southern states.
Radelet attributes Illinois’ regional disparities to political pressures. “Prosecutors face different pressures in different parts of the state,” he believes. “Each time a prosecutor goes for the death penalty, he’s deciding to spend millions of dollars. He has to make a priority decision to try to reflect the wishes of his community.”
Fry also suggests that when murders occur in smaller communities, the residents “take all of that very seriously. They’ll vote for the death penalty without hesitation.” Another possibility, she suggests, is that prosecutors, who are elected officials, don’t want to appear weak and will seek the death penalty in smaller counties where murders are rare. Prosecutors from larger counties see a lot more murder cases, she adds, so they might not feel as compelled to seek the death penalty for each one.
Lake County State’s Attorney Michael Waller, who also served on the panel, acknowledges that murderers might be dealt with more harshly in rural areas, but he believes that tendency “isn’t necessarily a significant problem for the implementation of a death penalty system.”
Yet Radelet insists that the results of his study are “very strong” for both disparities, reiterating that defendants in rural areas are 84 percent more likely to receive a death sentence than defendants in Cook County. The odds are 60 percent higher for defendants convicted of killing whites. “If you told me the Chicago Cubs were 60 percent less likely to win … I’d say that’s a good bet.”
It may also be a good bet that Illinois’ problem runs much deeper. Radelet and Pierce stress that their study only addressed decisions that were made during a narrow window of the capital punishment process. It encompassed only cases where convictions for first-degree murder were handed down, and the resulting sentence. The study did not include decisions made by prosecutors and police leading up to trial or the jury’s verdict at the guilt-or-innocence phase.
Pierce also notes that the study did not examine several other extra-judicial factors that could have an impact on sentencing, including the social class of the defendant, whether he or she was perceived as an “outsider,” where the trial was held, what the political climate was at the time and the makeup of the sentencing jury.
In fact, much of that information is hard to quantify. Some of it, such as the racial makeup of the jury, isn’t even recorded by the judicial system because such factors aren’t legally relevant.
Because of those restrictions and others, Pierce and Radelet argue that their conclusions are “conservative.”
Nevertheless, in an attempt to address the problems that were highlighted in the statistical analysis, Ryan’s death penalty commission recommended that the Illinois Supreme Court conduct “proportionality reviews” to ensure that defendants from different parts of the state receive the same treatment for similar crimes. Such reviews would be difficult to conduct without better data collection from the hodge-podge of agencies that currently keep records on murder cases, suspects and victims, the commission warned. Waller, the Lake County prosecutor, argues that the governor — and not the courts — should review the records for proportionality. The governor has broad powers and better resources for that kind of examination, he says.
In any event, Ryan’s panel was adamant that the findings from the researchers do need to be addressed in some manner. “While perfect uniformity in sentencing may not be possible,” the members wrote, “substantial progress toward a more uniform approach to the application of the state’s most serious penalty available should be a high priority if the state is to retain capital punishment.”
Death penalty panel
Eighty-five suggestions for improving the state’s death penalty system were handed to policymakers.
Gov. George Ryan’s Commission on Capital Punishment offered the suggestions in April after a top-to- bottom inspection of the system that took a little more than two years.
Ryan created the commission and established a moratorium on executions after 13 Death Row inmates were exonerated.
The panel reviewed every step in the death penalty process from police interrogations to clemency procedures. Among the recommendations:
• Interrogations of suspects in homicide cases should be videotaped.
• An independent state forensic laboratory should be created and operated by civilian personnel.
• The federal government and the state of Illinois should provide adequate funding to enable the development of a comprehensive DNA database.
• The 20 factors that make a defendant eligible for the death sentence should be reduced to five: murder of a police officer or firefighter while on the job, or in retaliation for performing official duties; murder of anyone at a correctional facility; multiple murder; murder that involves torture; murder of a person under investigation, or anyone involved in the investigation, prosecution or defense of that crime.
• The death sentence should be prohibited for defendants found to be mentally retarded.
• Murder convictions based on the testimony of a single eyewitness or accomplice, without any other corroboration, should not be death eligible under any circumstances.
• There should be a review of death eligibility by a statewide committee.
• If a judge doesn’t agree with a jury’s decision to impose a death sentence, that sentence should be changed to natural life.
• Chairman, Frank McGarr. Now in private practice, he served as a federal prosecutor and was chief judge of the Federal District Court for the Northern District of Illinois between 1981 and 1986.
• Co-chair, Paul Simon. Since he retired from the U.S. Senate in 1997, Simon has been a professor at Southern Illinois University and director of its Public Policy Institute.
• Co-chair, Thomas P. Sullivan. Now in private practice, he was U.S. attorney for the Northern District of Illinois from 1977 to 1981.
• Executive director and member, Matthew R. Bettenhausen. He is deputy governor for criminal justice and public safety. A former assistant U.S. attorney in the Northern District of Illinois, he most recently served as the associate chief of the Criminal Division.
• Member, Kathryn Dobrinic. She served as state’s attorney for Montgomery County and as the public defender in Christian County.
• Member, Rita Fry. She is the public defender of Cook County.
• Member, Theodore Gottfried. He has been the state appellate defender of Illinois since 1972. Among other responsibilities, that office provides advice and counsel to capital defense attorneys.
• Member, Donald Hubert. He has represented defendants in murder cases as well as police officer defendants in civil brutality cases. He serves by appointment of the Illinois Supreme Court as chairman of the court’s Committee on Professional Responsibility.
• Member, William J. Martin. He prosecuted mass murderer Richard Speck during his tenure as a prosecutor in the Cook County state’s attorney’s office. He also has experience as a criminal defense lawyer.
• Member, Thomas Needham. Now in private practice, he most recently served as the chief of staff for Chicago Police Superintendent Terry Hillard. He also was a Cook County prosecutor.
• Member, Roberto Ramirez. He is founder and president of Tidy International, one of the fastest-growing Hispanic-owned companies in the United States.
• Member, Scott Turow. An attorney, he is a best-selling author of legal novels. He also was an assistant U.S. attorney in the Northern District of Illinois.
• Member, Michael Waller. The state’s attorney of Lake County, he is a veteran trial lawyer and prosecutor.
• Member, Andrea Zopp. A corporate attorney, she has been a criminal defense lawyer. She also served as first assistant state’s attorney in Cook County and as assistant U.S. attorney in the Northern District of Illinois.
• Special adviser to the commission, William H. Webster. Now in private practice, he served as director of the CIA and the FBI. He also served as a judge of the U.S. Court of Appeals for the Eighth Circuit; a U.S. District Court judge; and a federal prosecutor in Missouri.
Daniel C. Vock is a Statehouse reporter for the Chicago Daily Law Bulletin.
Illinois Issues,June 2002