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Can It Be Fixed?
by Charles Hoffman, Attorney for the Illinois State Appellate Defenders Office and Brd. Member of Illinois Death Penalty Moratorium Project
8/15/2000
There are those who insist that the Governor's Death Penalty Moratorium Commission should concentrate its efforts on reforming Illinois' seriously flawed death penalty system, rather than consider the alternative of abolition. Given our state's shameful record in capital cases, there is no doubt our death penalty process can certainly be improved.
But rather than rush to repair that broken process, doesn't it make more sense to first decide whether the death penalty is worth saving? For only if the answer is a definitive yes, should we even begin to investigate ways to keep the machinery of death operating in Illinois.
Must we keep the death penalty to protect ourselves from violent killers? Not in Illinois, where the alternative sentence of natural life without parole is available. And in our state, life without parole means exactly what it says. No person sentenced to life without parole can be released from prison, unless the Governor commutes their sentence. Since 1978, when the legislature enacted life without parole, no Illinois Governor has commuted a life sentence.
Must we keep the death penalty as a necessary expression of societal vengeance? Only according to those who place humanity's baser urges such as hatred and revenge over our more noble attributes of justice and mercy. Our Midwest neighbors to the north, east and west — Wisconsin, Minnesota, Michigan and Iowa — are all relatively peaceful and civilized places in which to live. And the residents of those states get along quite nicely without capital punishment. So do all other Western industrial democracies, who view our use of the death penalty as barbaric, and completely contrary to our historic role as a world leader in advancing human rights.
Must we keep the death penalty as the only means to provide sufficient punishment for those incorrigible criminals who commit the most heinous murders? Death penalty proponents say we do. But in practice, the death penalty is not reserved for the "worst of the worst" offenders. Instead, it is imposed so randomly and arbitrarily that it operates much like a lottery. In fact, the crimes and criminal backgrounds of most condemned prisoners on Death Row are no different from the crimes and criminal backgrounds of dozens of convicted murderers who were spared death by judges and juries, and were instead sentenced to long prison terms or natural life without parole. In the vast majority of cases, it doesn't really seem to matter all that much who we spare and who we condemn to die.
Some suggest that to reduce this arbitrariness, we should narrow the range of cases that qualify for death. But if we do, how long would it be before some ambitious politician concludes that sponsoring a new "death-qualifying" factor will aid his or her chances for reelection? In 1977, our state's death penalty statute contained six factors that qualified a defendant for the death penalty. That list has since expanded to twenty, averaging a new factor every eighteen months. Well-intentioned reforms such as narrowing our death penalty statute suffer from the mistaken assumption that capital punishment is a legal issue, rather than a political tool.
Must we keep the death penalty to provide needed closure to the surviving family members of murder victims, as most prosecutors strongly contend? In response to such a claim, we should ask ourselves, closure for whom? The death penalty is imposed in only 2% of murder cases. By having it, do we deny closure to 98% of murder victims' families?
Even in those relatively few murder cases in which the death penalty is imposed, it still provides no real closure. Appeals in capital cases, necessary to insure that a defendant's trial and sentencing hearing comply with the Constitution, can take up to fifteen years. Rather than allowing the families of murder victims to put the trauma behind them, the death penalty forces them to relive their horror over and over again, as the defendants' seemingly endless appeals wind through the courts. Even with reforms designed to speed up death penalty appeals — which increase the risk of executing the innocent — capital cases still take many years to resolve, prolonging the pain victims' families must endure.
In truth, we hide behind a largely symbolic death penalty to absolve ourselves of the responsibility of providing what those persons tragically touched by murder really need. Rather than wasting millions of dollars on death sentences in a tiny percentage of murder cases — half of which will inevitably be thrown out anyway — don't we have a moral obligation to use that money to provide effective counseling and support services for victims' families in100% of murder cases?
If closure is our goal, life without parole is a far superior means of achieving it. Unlike capital cases, which invariably involve multiple appeals in both state and federal court, the vast majority of cases in which the defendant is sentenced to life without parole involve only one state court appeal that is over and done in less than three years. That's real closure. And while the death penalty thrusts unworthy individuals into the limelight of celebrity — we all know who John Wayne Gacy was — how many of us can name a convicted murderer in Illinois who was sentenced to life without parole? Rather than basking in the glow of media and movement attention, as many Death Row prisoners do, murderers sentenced to life without parole suffer a miserable existence in maximum security prisons in anonymity they truly deserve.
Over the past 22 years, the taxpayers of Illinois have spent more than Eight Hundred Million Dollars to send about 250 men and women to Death Row, over and above what it would have cost to sentence them to natural life in prison without parole. What return have we gotten on that huge investment? Of those 250 individuals, thirteen have been exonerated and sent home after suffering for years on Death Row for crimes they didn't commit. About eighty condemned prisoners have had their death sentences thrown out on appeal, and been resentenced to lengthy prison terms, or natural life without parole. One person had her death sentence commuted to life by Governor Edgar. Only twelve persons sentenced to death in Illinois have been executed.
Have our efforts to execute a handful of convicted murderers really been worth this enormous investment of time, money and resources? And how much more will a "new and improved" death penalty cost us? How many more millions will have to be spent to adequately train lawyers in the defense and prosecution of capital cases; to provide necessary investigative and forensic resources; and to pay for the multiple appeals that each capital case requires? Rather than dig deeper into our pockets to finance proposals to "fix" the death penalty, shouldn't we instead be asking whether it makes more sense to spend that money on programs that will actually reduce the incidence of violent crime in our society? Wouldn't it be better public policy to use the enormous savings that would result from eliminating capital punishment to hire more police officers, improve education, or provide more prenatal care to at-risk infants?
How many more thousands of hours of valuable judicial resources must be sacrificed seeking the unattainable goal of a mistake-free capital punishment system? For even if we significantly revamp our death penalty process, the Illinois Supreme Court will still be required to spend 20% of its time on capital cases, which, by law, receive priority over all other matters on that court's docket. Because of the death penalty, our Supreme Court has far less time to consider other important cases, both civil and criminal, which get pushed to the back-burner by capital appeals.
Can we reform the death penalty? Yes. Safeguards can be implemented that will reduce — but not eliminate — the number of innocent persons we condemn to death. And we will, inevitably, execute an innocent person, regardless of what reforms might be put in place. Safeguards can be implemented that will lessen — but not eradicate — the effect of race on the death penalty process. Some individuals will still be sentenced to death because of their race and the race of the victim in their case. Safeguards can be implemented that will improve — but not perfect — the quality of defense representation in capital cases. For even good lawyers have bad days, and some unfortunate persons will still end up on Death Row because their lawyers blundered.
Should we reform the death penalty? Or should we acknowledge, as former United States Supreme Court Justice Harry Blackmun ultimately did, that the death penalty experiment has failed? That's the question all of us, including our fellow Illinoisans on the Governor's Moratorium Commission, should be asking.
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The
Moratorium Campaign
P.O. Box 13727 New Orleans, LA 70185-3727 Tel: (504) 864 - 1071 Fax: (504) 864 - 1654 info@moratoriumcampaign.org Copyright 2001 The Moratorium Campaign privacy statement |