Illinois' governor, George Ryan, has declared a moratorium on the execution of the death penalty while the problems revealed by the exoneration of thirteen men on death row since Illinois reinstated the death penalty in 1977 are examined. Governor Ryan stated "There is no margin of error when it comes to putting a person to death."
While the mistakes involving the death penalty in Illinois have garnered much attention, there is no reason to think the death penalty process here is less reliable than in other states. Indeed, what distinguishes the states that carry out the most executions while acknowledging the least mistakes is their refusal to provide any meaningful review of criminal cases. Virginia has one of the shortest time limits for presenting newly discovered evidence of any state in the country. Texas has a separate court of appeals to handle criminal cases. The judges on the criminal court of appeals are elected. Candidates campaign with promises that they won't reverse convictions or set aside death sentences. Judges who look at cases, see errors and seek to correct them are voted right out of their robes. The people of Texas want blood. Sadly, they get it.
Many courageous men and women deserve thanks for the role they played in bringing a halt to executions in Illinois. Chief Justice Harrison of the Illinois Supreme Court has been an outspoken critic of the death penalty. He praised Ryan's decision, saying "It may prevent some innocent people from being executed." And Governor Ryan has shown true leadership in declaring the moratorium. Chicago Tribune reporters Steve Mills and Ken Armstrong wrote an outstanding series of investigative reports documenting problems in death penalty cases last November [1999]. But the real soldiers in the fight to stop innocent people from being executed in Illinois have been defense lawyers, newspaper reporters and an exceptional group of journalism students working with professor Lawrence Marshall at Northwestern University.
In the wake of Governor Ryan's declaration of the moratorium, however, one could easily read the newspaper and conclude that the only problem with the death penalty in Illinois is the incompetence of the defense bar. One cartoon showed a man being strapped down for his execution while his lawyer lay down to rest up too. Newspaper articles have quoted law professors and practicing lawyers commenting on the problem of ineffective representation in death penalty cases.
It is true that many defendants on death row had ineffective counsel. Mills and Armstrong's series in the Tribune reported that often death penalty defendants and their families have very little to spend on counsel. In one death penalty case, the lawyer's fee was reported to be $200. (That's not a typo: $200). Another lawyer who handled a death penalty case reportedly handed out fliers saying "Any case. Any where. [sic] Maximum fee--$1,500." Obviously, a successful, experienced attorney is unlikely to accept a major case requiring extensive investigation and prolonged litigation for a few thousand dollars. The fact that you can't hire a good criminal defense attorney to handle a capital case for a few thousand dollars does not mean most defense attorneys are incompetent. No one would assume that the fact that you can't hire a good plumber for minimum wage means most plumbers are incompetent. Nonetheless, some lawyers have provided woefully deficient representation in death penalty cases. Still, the known errors involving the death penalty in Illinois are not limited to the defense bar.
An investigator for the Chicago Police Department's Office of Professional Standards concluded that Police Commander Jon Burge and his detectives engaged in "methodical" and "systematic" torture. Allegations of misconduct by Burge and his detectives include punching suspects, putting guns to their heads, shocking them and putting plastic bags over their heads to coerce confessions. Ten men "investigated" by Burge and his detectives now sit on death row. Allegations about Burge and his detectives have been around for years, but defendants' allegations were not readily accepted. Now the police department has acknowledged the problem and Burge has been fired. I have yet to hear of concerns about a case because of defense counsel torturing witnesses.
Another problem identified in the series of Tribune articles was the use by prosecutors of unreliable hair and fiber analysis. Eighteen people have reportedly been cleared by DNA evidence after the prosecution obtained convictions based on hair analysis. Unlike DNA evidence, hair analysis is based on a visual comparison of hairs and is subjective. Unfortunately, prosecutors regularly overstate the significance of the evidence and juries give it too much weight. Similarly, fiber analysis has proven unreliable. Last year, the FBI claimed fiber analysis implicated a group of drug users in three murders at Yosemite National Park. A hotel handyman's subsequent confession to the murders revealed the unreliability of that evidence. So far as I know, no one has been wrongly convicted as a result of the defense's use of junk science.
One recurring theme in cases in which an innocent person is sentenced to death is the jailhouse informant who testifies that the defendant confessed to the crime. Jailhouse informants have an agenda. They are looking for a way to lessen their own punishment and are willing to say anything to help themselves. When one considers the fact that these are jail inmates, it should hardly be surprising that they regularly prove to be dishonest. Jailhouse informants are not normally defense witnesses. They testify for the prosecution to obtain shorter sentences or get charges dropped. The defense is not allowed to reward witnesses. That would be considered witness tampering and bribery. But it is an accepted and court approved practice for the prosecution to reward witnesses. Of course, the prosecutor will only be willing to reward an informant for truthful evidence that turns out to be helpful. The problem is that the prosecutor can more easily tell if the jailhouse informant's story is helpful than if it is true.
As the Tribune series noted, such informants have little to lose by making up evidence for the prosecution; they are rarely charged with perjury. And informants can pick up details of the crime from newspapers, police, prosecutors, phone calls with people on the outside or even the defendant's own legal papers to put together a convincing confession.
Innocent people are convicted by jurors who set the threshold for "beyond a reasonable doubt" too low. They are convicted because the public does not really believe in the presumption of innocence. A juror who would not trust a convicted felon to clean his or her house will find the same felon worthy of belief beyond a reasonable doubt when the convicted felon testifies for the prosecution in a criminal case and admits he is hoping for a lower sentence.
And how many of those thirteen men who walked off Illinois' death row saw their convictions vacated by the first appellate court to review the case? At the federal level, Congress has put more restrictions on the ability of persons convicted of crimes to have their convictions and sentences reviewed. Congress also eliminated the death penalty resource centers.
The public wants the defense bar to be effective if ineffectiveness interferes with executions. Otherwise, the demand for effective defense counsel is not always as great. I know a former county public defender. He was fired because he won too many acquittals. Another former county public defender I know was not re-appointed after he raised the fact that the county was not paying the public defender the minimum percentage of the State's Attorney's salary set by state law. They upped the salary, but replaced the defender who made them pay the salary the law required. The new defender started out with a lawful salary. But when the State's Attorney's salary was increased, the public defender's salary was left unchanged. But it is no secret that elected officials and the public would rather pay for law enforcement and prosecutors than for defense counsel.
It is good that the media and the public have been forced to rethink the death penalty in Illinois after it has been proven unreliable thirteen times. It if unfortunate that instead of considering all the problems that led to innocent people being sentenced to death, the media and the public find it easier to blame everything on inadequate defense counsel. Competent, dedicated, and usually uncompensated defense counsel have been essential in correcting the system's mistakes.
Governor Ryan is correct. "There is no margin of error when it comes to putting a person to death." If we accept that "to err is human," we must wonder how many errors, in the form of the innocent, are among the more than three thousand people on death row in this country.