Governor George Ryan's January 2000 announcement of a moratorium on executions in Illinois has been a catalyst for a heightened public and media discussion of capital punishment. But Ryan's announcement, preceded as it was by 13 exonerations of death row inmates, and sure to be followed by the public disclosure of several more wrongful convictions, is only one of many factors adding urgency to the discussion.

For some observers and policy-makers, reforms that promise to create greater protections for the innocent are the only changes necessary before lifting the moratorium. Others, who would perhaps prefer abolition, will settle for reform because they believe that only reform is possible. For still others, no reforms of any kind can ever address or correct the immorality of state execution. The death penalty, they argue, is unethical in modern society, ineffective as a deterrent and replaces justice with vengeance.

But the discussion must not be limited to two sides arguing irreconcilable positions. Instead, this moratorium period should be used to thoroughly examine all the flaws, injustices and costs associated with the use of the death penalty in Illinois. Over the past two years, both state and national polls have shown declining support for the death penalty, increasing support for life without parole as an alternative to the death penalty, and widespread support for the moratorium (two-thirds of all voters). It follows that if hundreds of thousands of Illinois citizens who no longer support executions under the current system but have taken no position on abolition are to be included in the discussion of the death penalty, a complete examination of the issues is necessary.

The Commission on Capital Punishment, appointed by Governor Ryan in February, is uniquely positioned to conduct such an examination. But responsible citizenship places a burden on all of us to hear and fully examine the criticisms of the death penalty that have been raised by our fellow Illinois residents. The thorough examination of questions about police and prosecutorial errors and misconduct, arbitrariness in who gets sentenced to death, racial bias, cost, deterrence and other matters is the fundamental business of this moratorium period.

Taken together, such concerns raise considerable doubt about whether the death penalty can ever be a part of an effective, affordable and fair criminal justice system. Ultimately, any attempt to pursue justice by addressing questions raised about the death penalty must address them all. Summaries of some of those issues follow here.

1. The risk of convicting, condemning and executing the innocent is too high.

In Illinois, 13 men have been released from death row after they were shown to be innocent of the crimes for which they were sentenced to death. One of those who would later be exonerated, Anthony Porter, was granted a stay only 50 hours before his scheduled execution. More death row inmates, including some tortured in Chicago Police Areas Two and Three and convicted largely on the strength of coerced confessions, await hearings or appeals related to their innocence claims.
Nationally, researchers have documented the cases of more than 20 wrongfully executed people since 1900. And that number would be much higher if efforts to prove legal innocence did not end with execution.
DNA testing, an increasingly effective tool in determining innocence or guilt in some cases, has also exposed widespread flaws in the administration of capital punishment in our society. In numerous cases where DNA results have exposed wrongful convictions, we have discovered that victims, witnesses, police, prosecutors, judges and juries who have been certain about guilt and been wrong, have paved the path to death row.
A 1999 Chicago Tribune study found that the system in Illinois has been plagued by investigatory error, official misconduct, unreliable snitch testimony, disbarred and otherwise disciplined defense attorneys and other problems. With such a track record, can we ever be certain that we will not execute an innocent person?

2. The death penalty is applied in an inherently random and arbitrary way.

Of all those doing time for murder in Illinois, only a fraction are on death row. At one point in 1999, there were 7,153 convicted murderers in the Illinois prison system. 161 of them were awaiting execution, barely over two percent. But if justice is to be served, the two on death row should be the "worst of the worst," those most deserving of the harshest punishment. But in practice, the use of the death penalty is more random than that and no one, not even the strongest proponents of capital punishment, have been able to demonstrate that it is only those who commit the most heinous crimes who face the death penalty. The death penalty process begins with the State's Attorney in each county, who must determine whether to bring capital charges in any murder case. And it is at that point that arbitrary judgements begin to figure in who gets the death penalty and who does not. There are 102 counties in Illinois and, thus, as many as 102 separate and distinct judgements about whether to seek a death sentence.

The record of capital proceedings also discloses numerous instances in which different judges presiding over original trials, retrials and appeals in the same case, reviewing essentially the same evidence and hearing essentially the same arguments, have come to dramatically different conclusions about both innocence and guilt and about appropriate sentence - death, life in prison or finite term.
And though our judicial system holds jury decisions almost sacrosanct, different juries, too, in trials and retrials of the same defendants, have varied substantially in their verdicts. In a system that seeks justice for all, is it right to tolerate those differences when the penalty is death?

Political considerations, too, influence the process at many steps along the way. The Washington, D. C. -based Death Penalty Information Center (DPIC) has documented the extent to which political factors have influenced the administration of the death penalty. The DPIC report cites numerous instances around the country in which both judges and prosecutors used the death penalty to secure election or reelection to office. The report quotes Supreme Court Justice John Paul Stevens decrying the practice. "The 'higher authority' to whom present-day capital judges may be 'too responsive' is a political climate in which judges who covet higher office - or who merely wish to remain judges - must constantly profess their fealty to the death penalty," said Stevens, whose statement would apply equally to prosecutors "... who covet higher office - or who merely wish to remain [prosecutors.]"

In a system where punishment was fairly and appropriately determined, death sentences would not depend on where the crime occurred or the date of the next election. Any perception that the death penalty is reserved only for a tiny fraction of crimes, those perceived to be most heinous, is contradicted by the demonstrably random and arbitrary ways in which it is administered.

3. The capital punishment system is racially biased.

Though we do not have full information about the role that race plays in the administration of the death penalty in Illinois, we do know that at least two-thirds of death row inmates are African American and Hispanic, compared to a statewide minority population of less than 35 percent. African Americans make up only 14 percent of Illinois' population, but they make up over 60 percent of Illinois' prison and death row populations.

Minority inmates also constitute 83% of those who have thus far been shown to be wrongfully convicted. Minorities, the numbers show, are far more likely than the white majority to be imprisoned, condemned to death and wrongfully convicted. Nationwide, prosecutors are more likely to request the death penalty and juries are more likely to impose it, when the defendant is black or when the victim is white. In 1990, the U. S. General Accounting Office (GAO) released a report about the impact of race in capital cases. The GAO's conclusion was unequivocal:

"Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty," the study said. "In 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty," the study continued, "... those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks."

In pursuing and obtaining death sentences, the federal government, too, is deeply affected by race factors. A Justice Department study released this year showed that minorities made up 75 percent of the defendants for whom federal prosecutors sought the death penalty between 1995 and 1999. Addressing and correcting the documented effects of race on the administration of the death penalty would seem to be an impossible task for a society that has been unable to correct the way race affects other equally important social outcomes.

4. The death penalty has cost the state of Illinois hundreds of millions of dollars.
No detailed study of the cost of administering the death penalty in Illinois has ever been conducted. But if capital punishment is to be fully and adequately evaluated as public policy, cost must be a consideration. What does it cost to maintain a system of capital punishment? What is the purpose of doing so? Does it achieve that purpose? Is it worth the cost? Such questions are central to public policy consideration, and if firm data is not available, an effort must still be made to estimate the cost of the death penalty.

Dozens of studies, primarily by newspapers, have been conducted elsewhere. Estimates have been developed by the Sacramento Bee, the Dallas Morning News, the Miami Herald and other papers. Duke University and the American Bar Association published a study of the cost of the death penalty in North Carolina in 1993. And in 1985, one attorney with the Office of the State Appellate Defender (OSAD) made a brave attempt at estimating the cost in Illinois. These studies and others came up with figures that ranged upwards from $1 million per death penalty case to as high as $3 million or more. Until a thorough and competent study of the costs in Illinois can be conducted, the best available estimates of the cost, based on numbers and factors reported in other studies are as follows:

* The estimated cost of a capital trial and 10 years on death row is $1.2 million or more.
* Subsequent appeals cost an average of $600,000.
* The average cost of a capital case that does not end in a death sentence reaches almost $900,000.
* The total cost in Illinois of 290 convictions in capital cases since 1977, plus 300 to 600 additional trials that ended with a sentence less than death has been estimated to be between $800 million and $1.1 billion. This is a net cost figure - the amount above what it would have cost to try the same cases as life-without-parole cases rather than as capital cases.

For that $1 billion the state of Illinois has "purchased" some 290 capital convictions, more than 140 reversals of verdicts and vacations of death sentences, 12 executions and, to date, 13 wrongful convictions. Such expenditures waste scarce public resources, fail to protect public safety, and risk the lives of the innocent. The same amount spent on drug treatment, vocational training, victims' assistance and other prevention programs would have been much more effective in enhancing public safety and pursuing justice.

5. The death penalty does not belong in an effective, affordable and just program aimed at improving public safety.

Community-based policing, regular police training, swift and reasonable punishment, drug treatment, job training and education, transitional housing programs, and effective supervision of parole and probation are all part of a criminal justice system that works. But $1 billion, or more, spent on administering the death penalty in Illinois since 1977 is money that wasn't available to spend on programs that would enhance public safety.
We know that a growing number of Illinois residents favor life without parole as an alternative to the death penalty. Such a sentence would be just as effective as the death penalty in controlling the "worst of the worst" and would free resources to invest in crime prevention and rehabilitation.

6. Police and prosecutorial misconduct are frequent in capital cases.

Even today, despite continuing revelations of investigatory errors, coerced confessions and other official misconduct, there are prosecutors who are standing in the way of speedy retrials and other remedies for those who have a reasonable claim of innocence. And there are many troubling capital cases that have involved serious misconduct by law enforcement officials.
In the Ford Heights Four case, Cook County Sheriff's Police suppressed information that pointed to the real killers. As a result, Verneal Jimerson and Dennis Williams, two innocent men, spent 12 and 18 years, respectively, on death row, when they should have been freed before their trial even started. Their civil rights claims (along with two others) against Cook County were settled for $36 million, to avoid what county officials said would have been an "embarrassing trial."

Another alarming example of official misconduct is the coerced confession cases from Chicago Police Areas Two and Three that led to the firing of Police Commander Jon Burge. As Federal District Court Judge Milton Shader recently wrote in a capital federal case "it is now common knowledge that in the early to mid-1980s, .... Commander Jon Burge and many officers working under him regularly engaged in the physical abuse and torture of prisoners to extract confessions." Although Burge is gone and the tortures have presumably ended, eleven men remain on Illinois' death row who claim their confessions were the result of torture at the hands of Chicago police officers. And, in many instances, prosecutors continue to stand in the way of timely remedies for members of the group known as the Burge 10.

Despite the evidence of misconduct and official error in Burge 10 cases, in the Ford Heights Four case and in other cases involving the 13 wrongfully convicted men who have been released from Illinois' Death Row, some prosecutors insist that wrongful conviction is not a problem. Such absolute denial of the facts raises questions about how effective any reforms might be in protecting innocent people from prosecutorial zealots. Nor can the judiciary itself be expected to protect defendants from prosecutorial misconduct. As a Chicago Tribune story reported in 1999, 42 former Cook County prosecutors who have become judges in the last two decades have been cited for misconduct during cases they tried as prosecutors. And in still one more embarrassment for prosecutors and police, Commander Jon Burge, never prosecuted, now lives in comfortable retirement in Florida while the state of Illinois continues to hold innocent victims of Burge on death row.

7. Unreliable informant testimony is a frequent factor in capital convictions.

Jailhouse "snitch" testimony and coerced "eyewitness" testimony was a factor in at least five of Illinois' wrongful death penalty convictions to date. The frequent use of unreliable informants and other witnesses undermines the reasonable pursuit of justice and is a measure of how far some prosecutors are willing to go to get a conviction when no other evidence is available. In 1999, the Chicago Tribune reported that informant testimony had been a factor in at least 46 out of 295 capital convictions since the reinstatement of the death penalty in Illinois. In at least half of those cases, the Trib said, the testimony had played a crucial role in obtaining a conviction. In some of those cases, prosecutors stood silent while informants lied in court - an occurrence that has been cited several times in reversals of death penalty convictions.

8. Virtually everyone on death row is poor and/or had an inadequate or underfunded defense.

Many of the condemned are on death row not because they committed the worst crimes, but because, in some cases, they had the worst lawyers. In Illinois there are no minimum standards for death penalty defense attorneys. And while the legislature's recent appropriation of $20 million dollars will no doubt address in part the problem of underfunded representation, to date the biggest user of the available funds has been the Cook County State's Attorney's office, which used the money to hire more prosecutors, more investigators and to buy 12 cars, not expenditures that will improve the quality of capital defense efforts. Nor will the funds alleviate the problem of incompetent attorneys - particularly in counties where judges may use any criteria they wish to appoint attorneys who simply pocket the fees while providing minimal and inadequate representation. And it isn't only incompetent lawyers who send their clients to death row. Overworked and underfunded lawyers do so, as well. Rich people, who can pay for a full defense, aren't sentenced to death. In fact, State's Attorneys rarely bring death penalty cases against rich defendants - obtaining a conviction in a capital case against a fully prepared defense is too difficult. It's the poor who face execution, and who have to rely on court appointed lawyers, many of whom simply lack the resources to properly defend capital cases.

9. Mental illness and mental retardation are also significant and disproportionate factors in capital convictions.

Another aspect of the arbitrariness of capital prosecutions and convictions is the frequency of mental impairment among death row inmates. Along with their poverty, capital defendants suffer a disproportionate amount of mental impairment relative to the general population. Based on mental health evaluations in connection with the sentencing hearings or post-conviction proceedings of death row inmates, it is obvious that the extent of mental retardation and illness is significant. And untreated mental illness is frequently associated in those cases with complicating factors such as childhood physical and sexual abuse, malnutrition, lead poisoning and more. How often must we convict and execute the mentally ill before we recognize that we have been punishing the sick, not the most culpable?

10. The death penalty doesn't deter homicide.

Since 1976, the number of executions in the United States and the size of death row have steadily and substantially increased with no apparent connection to local murder rates. In fact, for most of the period since '76, the murder rate was higher in 38 death penalty states than in 12 non-death penalty states. A New York Times study published this year found that states with the death penalty have had homicide rates 48 to 101 percent higher over the last 20 years than states without capital punishment. Four of Illinois' Midwestern neighbors - Iowa, Michigan, Minnesota and Wisconsin - are included among the states that control crime without capital punishment.
Texas has the highest number of executions in the country and also has one of the highest rates of violent crime. And in Illinois, the murder rate has declined for two years in a row, even though the state has not had an execution since March 1999.

Though sociologists do not know how poverty causes crime, they do know that poverty and other economic factors are sources of crime. Variations in poverty rates and the state of the economy have proven to be more closely connected to variations in violent crime rates, including murder, than other factors. Addressing those issues would be far more effective in reducing violent crime than the death penalty, which has never been shown to have a deterrent effect. And, if the death penalty was a deterrent, how can supporters explain variations by jurisdictions in homicide rates in a single state? Here, in Illinois, Cook County, the county with the highest murder rate, has also put the most people on death row with no apparent effect on homicides.

11. The death penalty is not a legitimate means for closure for victims' families.

We frequently hear death penalty supporters link capital punishment to victims' rights and the idea of "closure." Execution, they say, helps the families of murder victims to deal constructively with the cruel loss of a loved one. But such an idea plays havoc with the legitimate therapeutic concept of closure, which rejects the notion that vengeance can help reconcile people to loss in their lives. And if the average stay on death row is 10 years or more, aren't we only prolonging grief when we suggest to victims' families that execution is the path to real peace?

Instead, capital punishment establishes a hierarchy among victims based on severity of punishment. In 1999, there was one execution in Illinois. Did that one execution occur on behalf of the victim's family that most deserved "closure"? Or was it simply one more example of the arbitrary processes at work in selecting a tiny fraction of cases for death and leaving the others to be dealt with in some other way? The solution, of course, is not to begin executing more people, but to abandon the manipulative pretext that seeking the death penalty addresses the loss of the survivors of a homicide.

Nor do victims' families uniformly favor the death penalty. Murder Victims' Families for Reconciliation (MVFR) promotes other ways of addressing grief. Speaking around the country, MVFR members advocate counseling, reconciliation, restitution and other more certain ways of assuaging grief and achieving peace. Such methods also allow a victim's family member to take the initiative in their own healing rather than become a passive client of the justice system, enduring long, frustrating and painful delays on the path to a peace that may never be enough.

"In the aftermath of murder a family has two things to deal with - a crime and a death," says Pat Bane, a member of MVFR whose uncle was killed during a mugging. "The death penalty focuses on the crime and prevents us from grieving. By encouraging us to hate, it prolongs our rage. The death penalty is not a solution to violence, it is an escalation of violence."

12. The death penalty diminishes our moral authority on human rights issues.

Capital punishment has been abolished as a violation of human rights in almost all western industrial democracies. It's gone from eastern and western Europe, Scandinavia, Russia, South Africa, and most of Latin America. Almost all the nations we identify with, politically and culturally, view the death penalty as a barbaric relic of the past.

When capital punishment was abolished in Russia, a spokesman said, "The abolition of capital punishment . . . is aimed more at shaping the children's mentality - they will learn to live in a country where the State does not kill its own."

As more and more countries abolish capital punishment, the United States will increasingly be viewed as a pariah nation that violates the human rights of its own citizens. We don't cut off the hands of thieves to protect property; we do not stone adulterers to stop adultery. We consider that barbaric. Yet we continue to take life as a means of protecting life.

In addition to the United States, the countries with the most documented executions in 1997 included China, Iran, Saudi Arabia, Nigeria, Vietnam, Libya and Afghanistan. Is this really the international company we should be keeping?

You can contact us about our programs at:

Illinois Coalition to Abolish The Death Penalty
Executive Director Jane Bohman
332 S. Michigan Ave., Ste. 500
Chicago, IL 60604

Phone: 312-673-3816
Fax: 312-427-6130
email: info@icadp.org