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State of the State: Lawmakers debate reform rather than abolition of the state's death penalty

Aaron Chambers
WUIS/Illinois Issues

The bill to abolish the death penalty was not called for a vote on the House floor. Rep. Art Turner, the sponsor, says he simply couldn’t muster the votes necessary for passage.

By pulling the bill, Turner avoided forcing his colleagues to state for the record whether they support the ultimate punishment. But one thing is clear: Lawmakers are comfortable, if not enthusiastic, with keeping that statute on the books.

Turner, a Chicago Democrat, says he secured support from some 40 House members — roughly one-third of the 118-member chamber. Other members pondered his cause, he says, but decided they’d rather give reforms aimed at preventing wrongful convictions a chance to work.

“They’ve heard this issue about reforms and some changes to the system,” he says, “and they want to see what the reforms are going to do.” 

Then there’s the political reality of murder: It keeps happening, all over the state. And the justice system keeps moving forward, despite former Gov. George Ryan’s blanket commutation of Death Row inmates, the moratorium on executions, which Gov. Rod Blagojevich says remains in place, and concerns from the likes of Ryan and retired Illinois Supreme Court Chief Justice Moses Harrison that the state could execute an innocent person. Prosecutors are seeking death in murder cases, and courts are granting it.

When constituents call for justice for murder victims, it’s not politically advantageous for most lawmakers to vote against the availability of the harshest punishment. And those lawmakers appear to be in line with a majority of the public. According to a Zogby poll published in February by the St. Louis Post-Dispatch, 55.4 percent of Illinoisans “strongly or somewhat support” the death penalty. 

“Obviously there are abolitionists who say the only reform is to abolish the system. And that’s not politically feasible yet,” says Sen. John Cullerton, a Chicago Democrat and co-chair of the Senate Judiciary Committee. “So you have a choice, then, to make: Do you want to try to make it better so that innocent people don’t get convicted in the first place, or do you not try to reform it and claim the system doesn’t work?”

Lawmakers are focused on the former. This legislative session, they are set to approve a package of reform proposals that represents the culmination of three years of study that began with Ryan’s moratorium declaration in January 2000. 

Two bills, sponsored by Cullerton and Rep. Mary Kay O’Brien, a Watseka Democrat, contain the proposals. By mid-April, each had been approved by its original chamber. Proponents are studying how to merge them for passage by both chambers.

Though the package doesn’t encompass all of the 85 recommend-ations made by a commission Ryan formed to study administration of the death penalty, it includes several provisions that could fundamentally alter the handling of these cases at the trial and appellate levels.

Chief among them: The Illinois Supreme Court would have an express statutory mechanism to overturn a death sentence it found to be “fundamentally unjust.” Under current law, the thinking behind this provision goes, the court must find a procedural error to tamper with such a sentence. The proposed language would permit the court, in the absence of specific procedural error, to reverse a death sentence based on the facts alone.

Neither bill would eliminate the most controversial factor that, together with murder, can make a defendant eligible for death: murder in the course of a felony. But both would reduce the list of felonies within this factor.

O’Brien’s bill would go a step further by eliminating five other eligibility factors: murder committed in the course of a hijacking, in the course of one of several drug offenses, while incarcerated, during a drive-by shooting and when the defendant, as head of a criminal drug conspiracy, orders the death.

Other reform provisions under consideration would permit a defendant in any criminal matter to request that DNA tests of evidence be compared against the state police DNA database; require hearings on whether testimony from a so-called jailhouse informant is reliable; expressly permit a judge to decertify a capital case when a conviction is based solely on the “uncorroborated” testimony of an eyewitness, which would preclude the state from seeking death; define mental retardation for purposes of the death penalty; and require that police lineups be photographed.

A third bill, sponsored by Sen. Barack Obama, a Chicago Democrat, would require investigators to videotape or audiotape interrogations of murder suspects. Otherwise, statements made in the course of interrogation would be inadmissible in court. The proposed mandate does contain sev-eral exemptions, though. For instance, statements not recorded could be admitted if electronic recording wasn’t feasible or if prosecutors prove the statement was voluntary.

So that such recordings could be made surreptitiously, the bill would exempt them from the state law prohibiting electronic eavesdropping. 

Meanwhile, Blagojevich has adopted Ryan’s death penalty mantra: The system is broken and must be fixed. Thanks to Ryan’s blanket clemency, though, it’s unlikely Blagojevich would soon have to reconcile that statement with executing a person convicted under a system he calls broken.

Anthony Mertz, the first defendant to join Death Row after the blanket clemency, likely will face several years of appeals before the governor must decide whether to sign off on his death. Mertz was sentenced in late February for the murder of an Eastern Illinois University student, Shannon McNamara of Rolling Meadows.

However, the state Supreme Court could complicate this equation for Blagojevich. Last month, the court agreed to hear arguments on whether Ryan had the authority to commute death sentences in cases where the inmates either were awaiting resentencing or had not signed their petitions for clemency.

That makes it conceivable that 34 people, convicted under the so-called broken system, could return to Death Row. Some of these inmates are well along in the appeals process and would be eligible for execution sooner.

Attorney General Lisa Madigan brought the challenge with respect to the “unsentenced,” those 16 inmates who were awaiting resentencing after their death sentences were vacated on appeal, and the “unsigned,” those 21 inmates who failed to sign clemency petitions. Three inmates fall into both categories, so there are only 34 inmates at issue.

The challenge to the commutations of the unsentenced centers on the definition of “conviction.” Though the Illinois Constitution permits the governor to grant clemency “after conviction,” prosecutors argue that conviction, for purposes of clemency, is not achieved until a defendant is sentenced.

Defense attorneys respond that conviction, under case law, is achieved with a judgment of guilt. In the alternative, they argue, it’s achieved once a defendant is found guilty and sentenced — regardless of whether the sentence is subsequently reversed.

As for the unsigned, prosecutors note that statute requires inmates seeking clemency to sign their requests, except in cases where the inmates are physically or mentally unable to do so. Therefore, they argue, these inmates did not qualify for clemency.

Defense attorneys point to the following language in the statute requiring prisoners to sign clemency requests: “Nothing in this section shall be construed to limit the power of the governor under the Constitution to grant a reprieve, commutation of sentence or pardon.”

The Blagojevich Administration also has weighed in on the case — with a position opposite that of Madigan. Attorneys with the Chicago law firm of Kirkland & Ellis represent the administration. They argued in a motion filed with the court that Ryan’s action was properly founded in executive authority and that Madigan’s position is at odds with principles of separation of powers. “The incumbent governor,” they wrote, “has stated publicly that he disagrees with [the blanket clemency] but further that, irrespective of one’s views of whether or not Governor Ryan should have issued a blanket commutation order, he had the constitutional power to do so.” 

Still, the more immediate concern at the Statehouse is how to improve the functioning of the ultimate punishment. Ironically, lawmakers are poised to create another commission to study over five years whether reforms implemented this year are successful.

Turner, the lawmaker disappointed that his abolition bill didn’t inspire support, is not optimistic. “If I’m not around [in the legislature] five years from now,” he says, “you can say that Art Turner said that those reforms are not going to change a damn thing.” 


Aaron Chambers can be reached at statehousebureau@aol.com

Illinois Issues,May 2003

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