''A lot of people are like me, I think. The death penalty was a fact of life. But as people become more and more aware of the unfairness, they become less enthusiastic.''
Illinois Governor George Ryan

On January 31st, 2000, following the release of the thirteenth wrongfully convicted man from Illinois’ Death Row and a series of articles detailing problems with the administration of the death penalty in Illinois, Illinois Governor George Ryan declared a moratorium on all executions in the state until, as he stated, "I can be sure with a moral certainty that everyone sentenced to death in Illinois is truly guilty and that no innocent man or woman is facing lethal injection."

The purpose of this report, prepared by the Illinois Death Penalty Moratorium Project, is to review the course of the death penalty in Illinois in the year since the Governor imposed the Moratorium:
* The reaction of the public to the Moratorium and the effect of the Moratorium on public opinion in Illinois and the rest of the nation and the world (Section I);
* The effect of the moratorium on the State’s Attorney’s offices in bringing new death penalty cases in Illinois (Section II);
* The continuing course of death penalty appeals and remands in Illinois (Section III);
* The costs associated with the death penalty in the year of the moratorium (Section IV);
* The progress of efforts to investigate and reform the death penalty system in Illinois (Section V); and
* The role that the correctional system plays in the debate over the death penalty in Illinois (Section VI).

The Illinois Moratorium has served as a catalyst for an examination of the death penalty throughout the state and the rest of the country. Support for the Governor’s declaration of a moratorium was immediate and overwhelming. Further, polling done throughout the year indicated that public attitudes about the death penalty are changing drastically in Illinois. The Illinois Moratorium has also served as a catalyst for an examination of the death penalty throughout the state and the rest of the country.

Public opinion polling shows both strong support for the Moratorium and growing unease with the death penalty. An October 2000 Roper Poll commissioned by the Death Penalty Education Project shows that given a choice only 33% of Illinoisans favored the death penalty, and 47% favored life in prison without parole, as the appropriate punishment for the crime of murder. An overwhelming 70 percent of Illinoisans approve of the Moratorium on executions while the death penalty system is thoroughly reviewed.

Response to the Moratorium around the nation and the world has been widespread and supportive. Major newspapers around the country, including The New York Times, The Washington Post, the Miami Herald, the Boston Globe, the Christian Science Monitor, the Milwaukee Journal Sentinel, and the San Francisco Examiner endorsed the moratorium. Editorials emphasized Governor Ryan’s courage, and many endorsed the idea of a moratorium in their states.

While the Illinois press has been overwhelmingly supportive of the moratorium, several newspapers throughout the state have gone so far as to call for abolition. Most striking is the Small Newspaper Group, which owns five newspapers in central Illinois. The chain has called for abolition of the death penalty, even while the murderer of a member of the publishing family sits on Illinois’ Death Row.

Following the declaration of the Moratorium, Governor Ryan established a Commission on Capital Punishment, which he charged with the task of reviewing the administration of the death penalty in Illinois to determine why the "process has failed in the past". The commission held public hearings on August 2 and September 6 in Chicago, and on December 13 in Springfield. Testimony was overwhelmingly critical of the death penalty in Illinois. At the hearings, 73 of the 76 speakers voiced opposition to Illinois’ system of capital punishment. The hearings included testimony from representatives of the Illinois Death Penalty Moratorium Project, the Illinois Coalition to Abolish the Death Penalty, Amnesty International, Comite Exigimos Justicia, the Christian Council on Urban Affairs and other groups. Their comments identified racism, cost, police and prosecutorial misconduct, arbitrariness, and ineffectiveness as serious flaws in the administration of the death penalty in Illinois. Transcripts of the testimony can be found at www.idoc.il.us.gov/ccp

The religious community in Illinois has also strengthened its call for a re-examination of capital punishment. On July 26, 2000, the Council of Religious Leaders of Metropolitan Chicago issued a Council Statement on the Death Penalty, in which the Council stated that while its members have different opinions about the death penalty in theory, "[w]e are nevertheless united in the conviction that there is now overwhelming and persuasive evidence that in practice the administration of the death penalty in our society is often flawed and unjust. Its use should be indefinitely suspended." The Council is comprised of approximately forty of the heads of many of the principal faith communities in metropolitan Chicago.

Religious groups also testified against the death penalty at the Governor’s Commission public hearings. Representatives of the Archdiocese of Chicago and Cardinal George, the Greek Orthodox Diocese of Chicago, the Jewish Council on Urban Affairs and Sojourn, the social action committees of Reform Judaism, were among those who spoke against capital punishment.

An interfaith forum held in Evanston highlighted growing concern among the religious community about capital punishment in Illinois. In September, nearly 1,000 clergy and laypersons gathered to learn more about the flaws and injustices associated with the death penalty system.

Governor Ryan’s moratorium spurred action at the federal level as well. Several bills related to the growing unease with the death penalty were introduced into the U.S. Congress in 2000, including The Accuracy in Judicial Administration Act of 2000, introduced by Representative Jesse Jackson, Jr. (D-IL) which calls for a seven-year moratorium on all executions. Wisconsin Senator Russ Feingold (D-WI) introduced the Federal Death Penalty Moratorium Act of 2000, which calls for the establishment of a commission to study racial disparities, disproportionality and inadequate defense representation, among other pressing issues. Vermont Senator Patrick Leahy (D-VT) introduced the Innocence Protection Act, to address wrongful convictions and capital punishment reform.

In September, 2000, the United States Justice Department released a study that showed that racial and geographic disparities infect the federal death penalty system. Nearly 80 percent of death row inmates in the federal system are racial minorities, and 74 percent of those tried under the federal death penalty statute have been racial minorities. Further, geographic disparities plague the system. Of the 183 cases where U.S. attorneys recommended the death penalty, 25 were from Virginia and 14 were from Texas. In December, 2000, President Clinton delayed the scheduled execution of Juan Raul Garza for six months so that further study could be done of the reasons for these disparities.

The past year saw the release of several studies that further challenged the fairness, accuracy and efficacy of the death penalty system.

A landmark study conducted by Professor James S. Liebman of the Columbia Law School showed a death penalty system collapsing under the weight of its own mistakes. The June, 2000 Liebman study, which covered the period of 1973 through 1995, found serious, reversible error in nearly 7 out of every 10 capital cases fully reviewed during the period. In the final disposition of the reversed cases, 82% of the defendants were given a sentence less than death and 7% were found not guilty of the capital crime.

A study by The New York Times, published in September, 2000, showed that the death penalty has no deterrent effect on homicide. In the twelve states that do not have the death penalty 83%, or ten states, have homicide rates below the national average, while 19 of the 38 states with the death penalty have homicide rates above the national average. During the last 20 years, the homicide rate in states with the death penalty has been 48 to 101 percent higher than in states without the death penalty. In 21 states where executions were carried out by 1993, homicide rates declined a collective 5% in the following four years. In states without executions the homicide rate went down 12%.

At this time, moratorium or abolition legislation is pending in Missouri, Kentucky, North Carolina, Indiana, and Oklahoma. However, the list grows almost daily. Following the Illinois moratorium, a number of states, including Indiana, Arizona, North Carolina and Maryland, have instituted reviews of their death penalty systems.

Local governments and other organizations have continued to pass moratorium resolutions in states around the country. For example, the Maryland moratorium effort gained momentum when Montgomery and Prince George’s counties and the city of Baltimore passed moratorium resolutions. In North Carolina, over one dozen cities have signed moratorium resolutions. In all, over 1,500 local governments and other institutions have passed moratorium resolutions. And in New Hampshire, the legislature voted to abolish the death penalty, the first such action of its kind in over 20 years.

The American Bar Association (ABA) strengthened its call for a moratorium at its conference, titled "A Call to Action: A Moratorium on Executions", held in October, 2000. ABA president Martha W. Barnett, former First Lady Rosalyn Carter and Governor Ryan spoke at the Conference.
Illinois’ moratorium on executions was applauded by the governments of South Africa and Mexico during Gov. Ryan’s trade missions to those countries. It has met with accolades from the Italian Senate and from other European political leaders.

Finally, in the Governor’s own home state, Illinois legislators themselves provided strong evidence of a shift on the issue of capital punishment in their support for the Governor’s action. In his recent State-of-the State speech on February 1 of this year, the Governor’s comments on the year-old Moratorium drew a sustained, standing ovation from the members of the Legislature – the only remarks in his one-hour-plus speech to receive such a response.

While Illinois examines flaws in the system that sentenced at least thirteen innocent men to death, the state’s Death Row population continues to rise. Illinois prosecutors continue to seek the death penalty despite the pervasive flaws in the system, and capital prosecutions may actually be on the increase. The total of ten new death sentences in 2000 is actually higher than for any year since 1996. Eighty percent of this year’s condemned are non-white, an increase from the already disproportionate 67% nonwhite population of Death Row at the Moratorium’s beginning. All ten men were of limited economic means, and forty percent were 21 or younger at the time of the crimes for which they were sentenced.

In short, the many racial and class disparities and possibilities for error which gave rise to the call for a moratorium appear to remain firmly in place. A brief summary of each new case is provided below.

Raul Ceja (DuPage County)
The death sentence imposed on 23-year old Raul Ceja, Hispanic, by a DuPage county judge on April 17, 2000, was a milestone of sorts—the first handed down since Governor George Ryan’s moratorium on executions went into effect in January. Dozens of protesters gathered outside the courthouse, many insisting that Ceja was innocent of the 1998 drive-by shooting that claimed two young men’s lives. Ceja was convicted largely on witness statements that were often contradictory and on police testimony uncorroborated by written records. The jury was composed of eleven whites and one black.

Robert L. Evans (Macon County)
Prosecutors continue to rely on "snitch" testimony, as they did in the case of Robert L. Evans. Evans, 21, black, was sentenced May 26 in Decatur for stabbing an acquaintance to death, allegedly because he coveted the man’s stereo. Prosecutor Richard Current told the jury that the defendant had "a heart of darkness." Evans had no prior convictions for violent crime. Late in the trial, however, a jailhouse informer came forward to say that Evans had admitted to participating in a 1997 McDonald’s robbery with an older cousin in Tennessee, in which the manager was killed. Although no one has yet been tried for that crime, the jury was allowed to hear and give weight to the allegations.

Montell Johnson (Macon County)
A second death penalty was imposed in Decatur August 31 on another black defendant, Montell Johnson, in a six-year-old murder case. The key prosecution witness, Carlos Stokes, was himself convicted of second-degree murder in the very same case in 1998. Johnson represented himself at trial. Consistent with his statement that he preferred death to a lifetime in prison, he chose to present no evidence at the sentencing hearing. Johnson contended that the state’s case against him was based on "the testimony of two tainted witnesses." The victim’s mother stated that she had come to the trial hoping for a death sentence; however, by the time it was over she felt that Johnson was being unjustly singled out, and that the two main witnesses were equally responsible for her daughter’s death. "I now understand why there should be a moratorium on the death penalty," she told The Decatur Herald and Review.

Thomas Umphrey (Sangamon County)
On June 15 Thomas Umphrey, 38, white, was sentenced to death for the second of two murders. Umphrey had been out of prison and working in a St. Louis factory for about a year when he killed his supervisor and fled the area on a journey that ended violently with the carjacking murder of Phyllis Liles of Virden, Illinois. Umphrey’s two sisters pleaded for leniency, citing a hellish history of childhood physical and sexual abuse and fifteen years of time served in Missouri for an armed robbery Umphrey may not have committed.

Jojulien Hicks (Jefferson County)
On October 4 Jojulien Hicks, 27, black, was sentenced to death by an all-white jury in Mt. Vernon for killing a local pawnshop owner in the course of an armed robbery. The key to his conviction was the testimony of two other men who pleaded guilty to the robbery, particularly Jermaine Woodfork. No physical evidence existed against Hicks, but Woodfork’s bloody handprint was found at the scene. One witness, a friend of the victim, swore she saw Woodfork enter the pawnshop in the company of a white man (Hicks is black). Woodfork plea-bargained a potential death sentence down to 25 years in exchange for his testimony.
Jefferson County, with a population of 40,000, has now put 5 men on death row—the highest per capita rate in the state. Despite a relatively small minority population, three of the five are black.
Maurice King (Kane County)
Maurice King, black, 38, was sentenced to die October 5 for the murder of a family friend and her young daughter. A ward of the state at age 10, King had spent most of his adult life in prison. Kane County has at least five more capital trials pending. At least four of the five defendants, like King, are black.

Robert K. Jones (Jo Daviess County)
On November 20, a judge sentenced Robert K. Jones, 19, white, to death for killing two neighbors. Jones had a long history of mental instability and behavior problems but no previous criminal record. He had turned eighteen only about 60 days before the time of the murders. The judge gave considerable weight to testimony at the sentencing hearing concerning an alleged previous crime by Jones, which was never reported to the police.

COOK COUNTY
Finally, three death sentences have been imposed in Cook County since the moratorium was declared.

Chris Davis
On August 30 Chris Davis, 29, was convicted for the 1979 murder of an off-duty, plain-clothed officer whom he tried to rob. The officer, Gregory Young, shot Davis five times before he died, raising the question of who fired first. It is unclear whether Davis knew the man was a police officer, and the Chicago Police Department refused to certify Officer Young as having "died in the line of duty". Recently Davis’ co-defendant Troy Robinson drew a lesser sentence, based partially on doubt that he knew the victim was a police officer. Assistant state’s attorney Michael Rogers, who prosecuted both cases, was rebuked by the judge for remarking at trial that Robinson "had done nothing with his life except to sire seven bastards".

Sean Reynolds
On November 9, Sean Reynolds, 25, black, was sentenced to death for a 1996 murder during a home invasion robbery.

Gabriel Solache
On December 20 Gabriel Solache, 26, Hispanic, was sentenced to death in a murder-for-hire case allegedly orchestrated by a woman who wanted the murdered couple’s newborn child. Solache is a Mexican citizen and a recent immigrant.

The pace of capital prosecutions shows no sign of slackening in the coming year. In addition to the death sentences imposed in 2000, at least 21 capital cases are known to be currently pending in seven counties: Cook, Will, DuPage, Kane, Williamson, Saline and Macon.

Among the most notable cases in 2000 in which the death penalty has been sought was the July 19th gang-related shooting that claimed the life of a twelve-year-old bystander, Miguel de la Rosa, in Chicago’s Humboldt Park neighborhood. Joseph Lopez, 18, was arrested on July 20. Notwithstanding statements from neighbors that police had the wrong man, five days later the Cook County State’s Attorney’s office announced that it would ask for the death penalty. Two days later, all charges against Lopez were dropped, and Miguel Figueroa, 27, Hispanic, was arrested on capital murder charges. The case was instructive for what it revealed about the impact of politics and publicity on death penalty decision-making
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The names of current capital defendants and the counties in which they are charged are listed in an appendix to this report. The list does not include numerous cases in which prosecutors have not yet announced their intentions.

The wide disparity among Illinois counties in the use of capital punishment is clearly shown in the record for 2000. Macon County, for instance, sentenced two men to death and has at least four capital cases awaiting trial. Kane County sentenced one man and has at least five trials pending. Yet many other relatively large counties issued no death sentences in 2000 and have not announced plans to seek the death penalty in any pending case. These include Champaign, Peoria, Lake, Grundy, Tazewell, Rock Island and Kankakee. At least two state’s attorneys, Stewart Umholtz of Tazewell and Lance Peterson of Grundy County recently cited the Moratorium, as a factor in their decisions not to seek the death penalty against a murder defendant (Umholtz also cited the high cost of capital trials). The arbitrariness of a system in which a crime may be considered "capital" in one county and not in the neighboring one is another troubling issue.

During the year of the Moratorium, the Illinois Supreme Court continued to find problems with death penalty cases brought before it. The Court affirmed 33 death penalty cases, and it vacated or remanded another 14 cases. The Illinois high court has now set aside 135 death penalty convictions or sentences since the resumption of the death penalty in 1977. The same issues continue to infect death penalty cases and result in their being overturned as in prior years: prosecutorial misconduct, ineffective assistance of counsel, coerced confessions, and judicial corruption.

Among the fourteen cases the Court overturned are:

Cecil Sutherland
Cecil Sutherland had been on death row since 1989 for the rape and murder of a child. The Court held that the prosecutor improperly overstated the significance of the prosecution’s evidence during arguments to the jury and that defense counsel failed to present compelling evidence, including several witnesses, that would have cast doubt on Sutherland’s guilt.

Aaron Patterson
Aaron Patterson’s case was remanded for an evidentiary hearing on the issue of his substantial allegations of police brutality resulting in a coerced confession. Patterson, on Death Row since 1989, is one of the "Burge 10" – the number of defendants on Illinois’ death row who claim that their confessions were coerced as a result of systematic police torture that took place under Commander Jon Burge in Area 2 and Area 3 police districts in Chicago. Burge himself was terminated from the police department in 1993, leaving behind ten or more men sentenced to death with his assistance. Their cases are in various stages of appeal.

Derrick King
On Death Row for 19 years, King is another "Burge 10" prisoner. His case was remanded to determine whether his confession was coerced, and to determine whether his attorney failed to investigate and present evidence to mitigate the death penalty.

Murray Blue
The Court ordered a new trial based on the prosecutor’s use of inflammatory evidence—the victim’s torn police uniform spattered with blood and brain matter, displayed on a mannequin in the courtroom. The uniform was given to the jury to examine. The Court ordered a new trial based on the prosecutor’s use of inflammatory evidence –during their deliberations. The Court also found that the trial court should not have allowed the prosecutor to tell the jury to "send a message" to the deceased officer’s family and to the police. "Even those guilty of the most heinous offenses are entitled to a fair trial," the Court stated in its opinion. "Whatever the degree of guilt, those charged with a ... crime are entitled to be tried by the standards of guilt which [the legislature] has prescribed." Blue was quickly re-tried and received a non-death sentence — life without parole, the only alternative sentence for the murder of a police officer. The re-sentence is another example of the arbitrariness of the death penalty.

Darryl Simms
On Death Row since 1993, Simms’ case was remanded for an evidentiary hearing to determine whether three witnesses at his sentencing hearing may have perjured themselves, with knowledge of the prosecutor.

Willie Thompkins
The Court remanded the case for a new sentencing hearing on the ground that Thompkins’ trial counsel failed to present numerous character witnesses at his original sentencing hearing. Thompkins had been on Death Row since 1982. This was his fourth appearance before the Illinois Supreme Court.

Robert Fair
Robert Fair has been on Death Row since 1990. The Court ordered the prosecution to provide the defense with discovery materials relating to the trial judge’s conviction for 159 crimes arising from the judge’s conversion of fines and restitution payments to his own use. These offenses had occurred both before and after Fair’s trial. The purpose of the discovery would be to determine whether the judge’s conduct had an adverse impact on Fair’s due process rights.

Daniel Ramsey
Ramsey’s conviction was reversed and the case sent back for retrial because the defendant had been required to present an insanity defense based on an inappropriately narrow legal definition of insanity.

Hector Nieves
Nieves’ death sentence was reversed and his case remanded for imposition of a sentence other than death. The court found that the prosecutor had failed to prove Nieves’ eligibility for the death penalty.

Bobby Williams
The Court held that the prosecution provided insufficient evidence to prove one eligibility factor for the death penalty, and that the trial court provided defective verdict forms for instructing the jury on a second eligibility factor. The case was sent back for a new sentencing hearing.

Mark Johnson
This case was sent back for a hearing on Johnson’s fitness to proceed with his appeals, the Court finding that the trial court had misallocated the burden of proof required to determine mental fitness.

Four of the 14 cases involved the issue of prosecutorial misconduct (including inappropriate argument, knowledge of perjury, knowledge of judicial corruption). Three involved ineffective assistance of defense counsel. Two involved the issue of police brutality/coerced confession, and two involved eligibility for the death penalty. Eight of the cases originated in Cook County.
The 14 cases granted relief by the Illinois Supreme Court represented five direct appeals and nine post-conviction appeals. In all, these 14 cases appeared 19 times in the Illinois Supreme Court before the defendants obtained some relief. In most of these cases, the relief granted will require at least one additional appearance before the Supreme Court, from where, if relief is denied, the case will move into the federal court system. This gives some idea of the large amount of court time and the high cost (see Chapter IV) involved in death penalty litigation.

Three capital defendants were granted relief in federal court during the year of the Moratorium. Demetrius Henderson was granted an evidentiary hearing on the issue of racial discrimination by the prosecution in jury selection. Robert St. Pierre was granted an evidentiary hearing to determine whether he knowingly waived certain issues for his appeal. Henry Griffin was granted an evidentiary hearing on the issue of whether the key witness against him committed perjury with the knowledge of the State’s Attorney.

These three federal defendants appeared in higher courts at least 10 times before obtaining relief, which is not final in any of these cases.

Several death penalty cases that had been sent back for retrials, new sentencing hearings, discovery, and evidentiary hearings, remained pending during the year of the Moratorium. These cases had been granted hearings by the Illinois Supreme Court or by a federal court, including two by the U.S. Supreme Court.

At least eleven cases previously remanded by the Illinois Supreme Court remained pending in state trial courts during the year of the Moratorium, including cases that were overturned on grounds of failure to investigate possible racial bias of jurors (Edgar Hope), new evidence of innocence (Edgar Hope #2), trial counsel’s failure to investigate and present mitigation (Samuel Morgan, Terrance Towns, LeRoy Orange, Luis Ruiz, Bernon Howery), prosecution’s withholding of exculpatory evidence (Madison Hobley, Stanley Howard), use of an aggravating factor unsupported by the evidence (Gregory Shaw), and judicial corruption (Nathson Fields). Eight of these cases originated in Cook County.

All six cases that have hearings pending in federal court originated in Cook County. William Bracey and Roger Collins were granted new sentencing hearings arising out of the corruption and subsequent felony conviction of the trial judge, Thomas Maloney. Jerry Mahaffey has been granted a hearing to determine if prosecutors discriminated racially in selecting a jury. Anthony Guest and John Pecoraro have been granted discovery previously denied by the state courts. Drew Maxwell has been granted an evidentiary hearing on whether the state withheld exculpatory material. These six defendants appeared in higher courts at least 23 times before obtaining relief, which is not final in any of the cases.

Of all the death penalty cases pending on remand during the year of the Moratorium, perhaps the most striking is that of Nathson Fields. His murder conviction was reversed in connection with bribe-taking by former Cook County Circuit Judge Thomas Maloney, himself currently in federal prison for judicial corruption. Fields, on Death Row since 1985, is beginning his fourth year in the Cook County Jail following the Supreme Court’s order of a new trial for him just over three years ago. In arguing against the grant of a new trial, the prosecution told the Supreme Court in 1997 that it no longer had sufficient evidence to retry Fields. (At least one witness has since recanted.) Yet, rather than dismiss the defendant and admit to a possible 14th wrongful conviction, the Cook County State’s Attorney’s office has used procedural roadblocks to delay the retrial of Fields. The latest tactic of the prosecution has been to appeal the trial court’s grant of defense pre-trial motions to exclude certain evidence from the trial. The appeal of these motions will delay Fields’ release for at least another year.

In addition to Aaron Patterson and Derrick King, two more Burge 10 defendants (see explanation of Burge 10 under Aaron Patterson, above) -- Stanley Howard and Drew Maxwell—have been granted hearings on claims of police torture; three more are requesting such hearings (Leonard Kidd, Ronald Kitchen and Grayland Johnson); and three have evidentiary hearings pending on claims unrelated to police torture (LeRoy Orange, Madison Hobley and Jerry Mahaffey).

Richard Devine, the Cook County State’s Attorney has refused to acknowledge the substantial claims of police torture raised in all of these cases, and denies knowledge of the systematic police torture under Jon Burge. This is despite the fact that Assistant State’s Attorneys were assigned to be present in the police station during the times of these interrogations; city lawyers have admitted that torture occurred, internal Police Department investigations have confirmed it, and state and federal courts have recognized it. The State’s Attorney’s office has opposed every kind of review and put up procedural roadblocks at every turn.

At one time Mr. Devine said that the pending case of Darrell Cannon, a non-capital murder defendant also raising a "Burge" claim, would create a precedent that would resolve the other cases. But after the original trial judge, John E. Morrissey, was removed from the case, the State’s Attorney settled the Cannon case. The defendant, who had originally been sentenced to natural life, was offered a deal that would set him free within a few years, in order to avoid findings that would serve as unfavorable precedent. As Chicago Tribune columnist Eric Zorn wrote, "[Devine] and his prosecutors seem bent on picking at individual claims of torture, hoping to discredit them and preserve ancient victories, instead of also taking a step back and looking at the big picture – a picture that’s becoming clearer to the rest of us all the time."

This is in sharp contrast to the actions taken by the District Attorney in Los Angeles, who reviewed convictions that might have been tainted by a police corruption scandal and dismissed over 100 convictions, without waiting for endless litigation by wrongfully convicted defendants.

Cook County State’s Attorney refuses to acknowledge wrongful convictions

Even where wrongful convictions have finally been exposed, prosecutors continue to claim the wrongfully convicted are not innocent. Two clemency hearings have been held during the year of the Moratorium, seeking pardons as a prerequisite to obtaining state payments. The cases—those of Ronald Jones and Steven Smith—were from Cook County, and representatives of the Cook County State’s Attorney appeared at the hearings and maintained that neither man is innocent. The clemency board granted clemency to Jones this year, as it did also to Perry Cobb and Darby Tillis, even though the state had refused to concede that these men were innocent. Smith’s hearing was held during January, 2001, and the board’s decision is pending.

Notwithstanding the pervasive flaws in the death penalty system, Illinois prosecutors continue to go forward with death penalty prosecutions, delay resolution of the retrials of flawed capital convictions, and show a greater desire to protect their conviction scores than to seek justice and admit error. This stands in stark contrast to prosecutors in other jurisdictions, who are cognizant of the flaws in the capital punishment system and are willing to admit error:

* The District Attorney of San Francisco, for example, is not pursuing the death penalty and is refusing to seek an execution date for a Death Row inmate who waived his appeals, saying, "I am cognizant of what’s happening all over the country, where people are questioning the fairness and appropriateness of the death penalty."

* The District Attorney in San Diego is conducting an exhaustive search of over 560 cases in which prisoners could be exonerated by DNA evidence.

* Similarly, the District Attorney of Travis County, Texas, took the bold step of having his office re-examine 400 convictions after DNA evidence exonerated a defendant erroneously imprisoned for nearly 16 years. "The duty of the district attorney," declared this District Attorney, Ronnie Earle, "is not to convict, but to see that justice is done. That imposes a burden on the prosecutor to represent the accused as well as the state."

Our own prosecutors’ actions reflect a mindset apparently more intent on protecting their "win-loss" record than on seeking justice. In September, 2000, prosecutors held a public rally to launch the Prosecutors’ Bar Association. The PBA has already testified against the reforms put forward by the House Special Committee on Prosecutorial Misconduct, and it has put out a judicial rating chart which rates judges on the basis of how often they agree with the prosecution’s position. And while all branches of state government are attempting to examine the problems with the capital punishment system in Illinois, DuPage State’s Attorney Joseph Birkett, whose office was responsible for wrongfully convicted defendants Rolando Cruz and Alejandro Hernandez spending years on Death Row, states that he is "confident that in Illinois we have the best capital justice system in the nation." In an August letter to the Tribune, Birkett declared with certainty that no innocent person had been put to death in the U.S. in the past century, "and with the safeguards already in place, none ever will be."

Yet the same problems persist. And so on January 31st, the anniversary of the Moratorium, the Chicago Tribune reported that Cook County prosecutors were poised to drop 12 of 13 murder charges against alleged serial killer Gregory Clepper either because laboratory tests did not confirm his alleged confessions or the police have developed evidence that points to other suspects. As the Tribune noted, the case raises questions about the conduct of police and prosecutors. Police had claimed that Clepper gave detailed confessions to the crimes and prosecutors had him indicted without waiting for the complete laboratory analysis of the evidence in the cases. Clepper was indicted and has been in custody since 1996. "It’s not a fine piece of investigative work," one police official said.

Illinois state and local governments spent an estimated $28.5 million administering the death penalty last year, boosting the total amount spent on capital punishment since 1977 to almost $800 million. This amount is over and above what it would have spent if these cases had been tried as natural life cases. Ten people were sentenced to death during the year at an estimated cost of $10 million. Other costs incurred during the year include

* $6 million for appeals of those sentences,
* $10.5 million for capital trials that did not end in death sentences,
* $500,000 for housing 10 inmates on death row for 10 years, and
* $2.5 million for settlement of civil suits for wrongful prosecutions and convictions.

All of the figures cited above are estimates of "net" costs—the amount the state could have saved if these cases had gone to trial with a maximum sentence of life in prison without possibility of parole (LWOP), rather than as capital cases. The added expense of a capital case accrues at every step along the way. Impaneling a capital jury takes more time and more potential jurors than do LWOP cases. Capital cases go to trial more often. The trials take longer and involve more witnesses, including more expert testimony. The sentencing hearing in a capital case can be up to two weeks long, compared to half a day in a non-capital case.

Defendants are more often indigent, and the state ends up bearing the cost of both prosecution and defense. Death sentences are appealed more often, and appeals attorneys are provided at state expense. State post-conviction appeals and federal habeas corpus appeals, which are virtually mandated in all capital cases, rarely exist in non-capital cases. Every element of a capital case drives the cost up.

Added costs will be generated by recent and anticipated reforms of the death penalty system. We know, for example, that at least $20 million will be added by virtue of the state’s new Capital Litigation Trust Fund. On the other hand, any attempt to diminish costs by streamlining the appeals process will increase the risk of wrongful executions.

The stunning expense of administering the death penalty is unique in at least one other respect. In a time when public officials feel compelled to scrutinize the costs and benefits of virtually every public policy before it is implemented, no official study has ever been conducted of the cost of maintaining capital punishment system in Illinois.

In that information vacuum, the above estimates, developed by the Illinois Death Penalty Moratorium Project, are an effort to enhance the public discussion of capital punishment. The figures are based on the results of studies done elsewhere by newspapers, university researchers, professional associations and a 1985 estimate by the Illinois State Appellate Defenders Office
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The creation of the Governor’s Commission on Capital Punishment is certainly an important step forward in the process of exposing the flaws, injustices and costs of the death penalty. But if the Commission does not shine an official light on the true cost of administering the death penalty, policy-makers considering how to address the death penalty will continue to flounder in the dark.

Even before the Governor established his commission to investigate flaws in Illinois’ death penalty, a number of committees and investigatory bodies were set up to look into various aspects of Illinois’ death penalty system. These official groups have met to explore the problems that led to thirteen wrongful convictions and that were exposed in two Chicago Tribune series on prosecutorial misconduct and on the administration of the death penalty in Illinois.

The various proposed reforms, while often positive in and of themselves, fall far short of their goal of guaranteeing fairness in the death penalty process, which is, after all, irreversible. The proposed reforms, rules and investigations are described below.
Previously enacted reforms

Prior to the year of the Moratorium, the state legislature enacted two reforms, both designed to enhance the discovery of true guilt/innocence in capital cases. (1) A new statute gives defendants greater access to DNA testing where there is a possibility that the testing will exonerate the defendant. (2) A $20 million appropriation is designed to assist both prosecutors and defense attorneys in handling capital cases.

In an appeal currently pending before the Supreme Court, the Attorney General is urging that the new DNA statute be interpreted so narrowly that the effect would be to actually place more restrictions on defendants’ access to DNA testing than was the case before the new law was enacted.

On January 1, 2000, funds became available through the Capital Litigation Trust Fund. The Fund was created to improve capital defense representation, with the specific intent that it be used during capital trials. According to State Representative Jim Durkin (R-Westchester), the important issue was that the funds were to be used in the courtroom: "We wanted to make sure that the money was not going to be something to create jobs." This, however, has been a primary result of the Fund.

Since the creation of the Fund, the Cook County State’s Attorney’s office has spent more than $450,000 on new employees, cars, furniture and seminars. The office hired new investigators, and purchased a dozen automobiles with a price tag of $234,000. By contrast, as of June 30, 2000, no funds had been spent by the Cook County Public Defender’s Office. Rita Fry, the Cook County Public Defender, has stated that she has since spent around $100,000 on laptop computers and seminars for attorneys.

In the year of the Moratorium, one set of changes has recently been put into effect. On January 22 of this year, the Illinois Supreme Court adopted new rules recommended by a committee of 17 judges. The Court appointed the committee nearly two years ago in the wake of the exoneration of Anthony Porter, the state’s eleventh wrongfully convicted Death Row inmate, to look into improvements that could be made to Supreme Court rules to make the death penalty more fair. The new rules include:

* Minimum standards of training and experience for both defense attorneys and prosecutors;
* Mandatory appointment of two defense attorneys for each indigent capital defendant;
* Special training for judges assigned to handle death penalty cases;
* Deadlines for a prosecutor to give notice of intention to seek the death penalty in a death-eligible case;
* Extending disclosure requirements in criminal cases to sentencing hearings;
* Standardized requirements for disclosure concerning DNA evidence;
* An explicit statement that "the duty of a public prosecutor. . . is to seek justice, not merely to convict."

It is perhaps of some significance that the Court found it necessary to explicitly state a rule that should "go without saying."

After extensive hearings, this committee, chaired by Rep. James Durkin, has drafted proposed reforms, which are expected to be introduced into the House shortly. These reforms would:
* require new trials where prosecutors fail to disclose evidence helpful to the defense;
* permit the taking of discovery depositions (at the discretion of the trial judge); and
* (1) hold a pre-trial reliability hearing to test proposed informant testimony for use at trial and (2) urge the Illinois Supreme Court to adopt jury instructions cautioning about the reliability of such testimony.

These proposals were opposed by both the Cook and DuPage County State’s Attorneys. In their final form, the proposals are trimmed down slightly.

Senator Emil Jones, Jr.’s committee has been the only special committee to develop and actually submit reform proposals to the legislature during the year of the Moratorium. These proposals, introduced in the Senate, included requirements that:
* the prosecution provide timely prior notice of an intention to seek the death penalty;
* each defendant in a capital case with multiple defendants have separate counsel;
* appointed defense counsel be paid the average rate for defense attorneys in the county where the case is being tried;
* the judge or jury balance factors in aggravation and mitigation in determining whether to impose death (current language seems to presume death unless the jury/judge finds mitigation sufficient to preclude death);
* all interviews between police and suspects or witnesses be videotaped;
* an automatic new trial be granted where a police witness commits perjury at trial that affected the reliability of the verdict;
* a capital indictment be dismissed where the prosecution (1) fails to correct perjury committed by one of its witnesses before a grand jury; (2) withholds exculpatory evidence; or (3) delays unreasonably in bringing a defendant before a judge, or in bringing an indictment or a preliminary hearing.

These proposals were submitted to the Senate Rules Committee on February 9, 2000, where they died in the 91st General Assembly, without even being referred to subject-matter committee for further action.

It has been over a year since the Cook County State’s Attorney pre-empted an attempt by defense attorneys to have a special prosecutor appointed to investigate the State’s Attorney’s and police role in the wrongful convictions of the Ford Heights Four: Dennis Williams (who spent 18 years on Death Row), Verneal Jimerson (also sentenced to death), Kenny Adams and Willie Raines. The Four were freed in 1996. Before a judge could rule on the request, State’s Attorney Devine appointed Gino DiVito, a former Cook County prosecutor, to undertake the investigation. During the year of the Moratorium, the public continues to await findings from Mr. DiVito. Mr. DiVito’s silence continues.

This state legislative committee came out of a House Resolution sponsored by Rep. Coy Pugh. It was to examine problems with the death penalty and make recommendations to the full House of Representatives. The Task Force conducted three hearings, in Chicago, Belleville, and Springfield, heard from numerous witnesses, and developed volumes of evidence and testimony. After the Governor announced the Moratorium and established his commission, the House Task Force apparently dropped plans to issue a final report and recommendations.

Can these efforts fix the death penalty?

The proposed changes to Illinois’ death penalty procedures would certainly improve a system that both the Chief Justice of the Illinois Supreme Court and the Governor have emphatically declared is broken. Indeed, these changes would go far to improve Illinois’ entire criminal justice system. But can these changes really "fix" our broken system of capital punishment?

Even if we were able to implement every imaginable reform, it is simply not possible to establish a system of capital punishment that is fair and accurate.

No reforms can eliminate the inherent arbitrariness of sentencing approximately two percent of convicted murderers to death, when their crimes and criminal backgrounds are, in most cases, no different from the other 98% who were sentenced to long prison terms or life without parole. No reforms can eliminate the effect of racism on the death penalty process, which condemns defendants to death based in large part on their race or the race of the victim in their case. No reforms can eliminate the motive of a co-defendant to wrongly point the finger of guilt at another to save himself from the death penalty. No reforms can guarantee that honest witnesses are not mistaken or that dishonest police and prosecutors will not manufacture evidence of guilt or bury evidence of innocence.

Anthony Porter, whose wrongful conviction and near-execution culminated in the governor’s moratorium, was convicted because two eyewitnesses believed they saw him commit murders that, in fact, he did not commit. Such human error is inevitable, making it impossible to guarantee that the irrevocable punishment of death is always fair and accurate.

As interest in the death penalty and doubts about its place in the state’s justice system have grown, it becomes more important than ever that Death Row inmates themselves have the right to plead their cases in the public debate on the death penalty. Likewise, the public’s access to the facts concerning over 160 current Death Row inmates is central to an informed debate. Conditions on Illinois’ four Condemned Units, however, make these rights tenuous at best, for a number of reasons.

IDOC rules limit reporters’ access to prisoners. An inmate must first add the journalist to his personal visiting list, which is of limited size. The reporter can bring nothing into the visiting room—not even pencil and paper, let alone a tape recorder or camera.

A new restriction imposed this year requires Death Row inmates to be shackled during visits, with wrist cuffs and waist chains attached to the floor. The inmates thus cannot stand up, write, use a cup, hold their children or even blow their noses. The rule applies only to Death Row, although security problems there are acknowledged to be fewer than on other maximum security units, and is applied across the board regardless of an individual inmate’s good conduct record. Prisoners have told the Moratorium Project that the result is to make many inmates and visitors reluctant to repeat the distressing experience.

These and other regulations limit the ability of Death Row prisoners to communicate with the outside world, without enhancing security. It is worth remembering that most of the thirteen exonerated former Death Row inmates were freed through the efforts of volunteers working outside the judicial system. If justice is to be achieved in Illinois, it is important that families and friends, as well as journalists and advocates, have access to the men and women on Illinois’ Condemned Units.

In the year since the Moratorium on executions was declared, no compelling reason has emerged to maintain the death penalty in Illinois, while the arguments for its replacement with life imprisonment without parole have grown in number and urgency. As the public learns more about the serious flaws and injustices in the system, the level of support for the death penalty has dropped and is likely to decline further. The record of recent capital prosecutions carried out despite the known flaws and injustices in the system calls into question the ability of the system itself to reflect on and correct its own errors. The number of capital convictions, and the racial and class biases they reflect, may actually be on the rise. The steady stream of reversals and remands of past cases by higher courts in 2000, many of them for reasons of serious police and prosecutorial misconduct, only confirms what was known a year ago about the ever-present potential for fatal error and injustice.

The cost of administering capital punishment remains enormous. The various reforms proposed, while often positive in and of themselves, fall far short of their goal of guaranteeing fairness and accuracy in the death penalty process. Those reforms which may be adopted will undoubtedly add significantly to the death penalty’s costs, while any attempt to reduce those costs by "streamlining" the system only increases the risk of tragic miscarriages of justice.

Why spend millions more, upon the millions already spent, in a futile effort to improve an inherently flawed and unjust system of capital punishment? What is the point of dedicating scarce judicial resources to sending a handful of convicted murderers to Death Row, when society can be equally protected, at a fraction of the cost and time, by replacing capital punishment with a maximum sentence of natural life without parole? Not only would such a system be less expensive and provide swifter closure, it would also insure that those mistakes which we will inevitably make, no matter how long it takes to uncover them, can be corrected
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Twelve U.S. states, including Illinois’ neighbors Iowa, Wisconsin and Michigan, have functioned without capital punishment for many years. Not only do they face no special threat to public safety; the crime rates of the non-death penalty states as a whole are below the national average. The Illinois Death Penalty Moratorium Project believes that the time has come for Illinois citizens and policy makers to consider other more effective and less costly means of protecting our citizens and deterring serious crime in our state.

Illinois Death Penalty Moratorium Project
180 North Michigan Avenue #2300
Chicago, IL 60601
312-849-2279
February 5, 2001