[Reader-list] death penalty

William Mazzarella mazzarel at midway.uchicago.edu
Fri Jun 25 18:06:33 IST 2004

Further to the debate on the death penalty, this recent-ish article by the
American crime writer and lawyer Scott Turow is remarkably thoughtful - as
as being written from an interestingly ambivalent position.

Coming to terms with capital punishment.
Issue of 2003-01-06
Posted 2002-12-30

When Joseph Hartzler, a former colleague of mine in the United States
office in Chicago, was appointed the lead prosecutor in the trial of
McVeigh, the Oklahoma City bomber, he remarked that McVeigh was headed for
no matter what. His job, Hartzler said, was simply to speed up the
That was also the attitude evinced by the prosecutors vying to be first to
the two Beltway sniper suspects. Given the fear and fury the multiple
inspired, it wasn't surprising that polls showed that Americans favored
what Attorney General Ashcroft referred to as the "ultimate sanction." Yet
despite the retributive wrath that the public seems quick to visit on
crimes, or criminals, there has also been, in recent years, growing
about the death-penalty system in general. A significant number of
question both the system's over-all fairness and, given the many cases in
DNA evidence has proved that the wrong person was convicted of a crime,
ability to distinguish the innocent from the guilty.

Ambivalence about the death penalty is an American tradition.When the
was founded, all the states, following English law, imposed capital
But the humanistic impulses that favored democracy led to questions about
whether the state should have the right to kill the citizens upon whose
government was erected. Jefferson was among the earliest advocates of
restricting executions. In 1846, Michigan became the first American state
outlaw capital punishment, except in the case of treason, and public
opinion has
continued to vacillate on the issue. Following the Second World War and
the rise
and fall of a number of totalitarian governments, Western European nations
abandoning capital punishment, but their example is of limited relevance
to us,
since our murder rate is roughly four times the rate in Europe. One need
glance at a TV screen to realize that murder remains an American
and the concomitant questions of how to deal with it challenge contending
strains in our moral thought, pitting Old Testament against New,
against forgiveness.

I was forced to confront my own feelings about the death penalty as one of
fourteen members of a commission appointed by Governor George Ryan of
to recommend reforms of the state's capital-punishment system. In the past
twenty-five years, thirteen men who spent time on death row in Illinois
been exonerated, three of them in 1999. Governor Ryan declared a
moratorium on
executions in January, 2000, and five weeks later announced the formation
of our
commission. We were a diverse group: two sitting prosecutors; two sitting
defenders; a former Chief Judge of the Federal District Court; a former
senator; three women; four members of racial minorities; prominent
Democrats and
Republicans. Twelve of us were lawyers, nine with experience as defense
attorneys and elevenincluding William Martin, who won a capital conviction
against the mass murderer Richard Speck, in 1967with prosecutorial
Roberto Ramrez, a Mexican-American immigrant who built a successful
business, knew violent death at first hand. His father was murdered, and
grandfather shot and killed the murderer. Governor Ryan gave us only one
instruction. We were to determine what reforms, if any, would make
of the death penalty in Illinois fair, just, and accurate. In March, 2000,
during the press conference at which members of the commission were
we were asked who among us opposed capital punishment. Four people raised
hands. I was not one of them.

For a long time, I referred to myself as a death-penalty agnostic,
although in
the early seventies, when I was a student, I was reflexively against
punishment. When I was an assistant U.S. attorney, from 1978 to 1986,
there was
no federal death penalty. The Supreme Court declared capital-punishment
unconstitutional in 1972, and although the Court changed its mind in 1976,
death penalty did not become part of federal law again until
1988. However,
Illinois had reinstated capital punishment in the mid-seventies, and
occasionally my colleagues became involved in state-court murder
In 1984, when my oldest friend in the office, Jeremy Margolis, secured a
sentence against a two-time murderer named Hector Reuben Sanchez, I
congratulated him. I wasn't sure what I might do as a legislator, but I
had come
to accept that some people are incorrigibly evil and I knew that I could
the will of the community in dealing with them, just as I routinely
accepted the
wisdom of the RICO statute and the mail-fraud and extortion laws it was my
to enforce.

My first direct encounter with a capital prosecution came in 1991. I was
private practice by then and had published two successful novels, which
me to donate much of my time as a lawyer to pro-bono work. One of the
cases I
was asked to take on was the appeal of Alejandro (Alex) Hernandez, who had
convicted of a notorious kidnapping, rape, and murder. In February, 1983,
ten-year-old girl, Jeanine Nicarico, was abducted from her home in a
suburb of
Chicago, in DuPage County. Two days later, Jeanine's corpse, clad only in
nightshirt, was found by hikers in a nearby nature preserve. She had been
blindfolded, sexually assaulted several times, and then killed by repeated
to the head. More than forty law-enforcement officers formed a task force
hunt down the killer, but by early 1984 the case had not been solved, and
heated primary campaign was under way for the job of state's attorney in
County. A few days before the election, three menAlex Hernandez, Rolando
and Stephen Buckleywere indicted.

The incumbent lost the election anyway, to a local lawyer, Jim Ryan, who
the case to trial in January, 1985. (Ryan later became the attorney
general of
Illinois, a position he is about to relinquish.) The jury deadlocked on
but both Hernandez and Cruz were convicted and sentenced to death. There
was no
physical evidence against either of themno blood, semen, fingerprints, or
forensic proof. The state's case consisted solely of each defendant's
statements, a contradictory maze of mutual accusations and demonstrable
falsehoods. By the time the case reached me, seven years after the men
arrested, the charges against Buckley had been dropped and the Illinois
Court had reversed the original convictions of Hernandez and Cruz and
separate retrials. In 1990, Cruz was condemned to death for a second time.
Hernandez's second trial ended with a hung jury, but at a third trial, in
he was convicted and sentenced to eighty years in prison.

Hernandez's attorneys made a straightforward pitch to me: their client,
who has
an I.Q. of about 75, was innocent. I didn't believe it. And, even if it
true, I couldn't envision persuading a court to overturn the conviction a
time. Illinois elects its state-court judges, and this was a celebrated
"the case that broke Chicago's heart" was how it was sometimes referred to
the press. Nevertheless, I read the brief that Lawrence Marshall, a
professor of
law at Northwestern University, had filed in behalf of Cruz, and studied
transcripts of Hernandez's trials. After that, there was no question in my
Alex Hernandez was innocent.

In June, 1985, another little girl, Melissa Ackerman, had been abducted
murdered in northern Illinois. Like Jeanine Nicarico, she was kidnapped in
daylight, sexually violated, and killed in a wooded area. A man named
Dugan was arrested for the Ackerman murder, and, in the course of
for a life sentence, he admitted that he had raped and killed Jeanine
as well.

The Illinois State Police investigated Dugan's admissions about the
murder and accumulated a mass of corroborating detail. Dugan was not at
work the
day the girl disappeared, and a church secretary, working a few blocks
from the
Nicarico home, recalled a conversation with him. A tire print found where
Jeanine's body was deposited matched the tires that had been on Dugan's
car. He
knew many details about the crime that had never been publicly revealed,
including information about the interior of the Nicarico home and the
applied to Jeanine.

Nevertheless, the DuPage County prosecutors refused to accept Dugan's
confession. Even after Cruz's and Hernandez's second convictions were
in the separate appeals that Larry Marshall and I argued, and
notwithstanding a
series of DNA tests that excluded Cruz and Hernandez as Jeanine Nicarico's
sexual assailant, while pointing directly at Dugan, the prosecutors
pursued the
cases. It was only after Cruz was acquitted in a third trial, late in
1995, that
both men were finally freed.

Capital punishment is supposed to be applied only to the most heinous
but it is precisely those cases which, because of the strong feelings of
repugnance they evoke, most thoroughly challenge the detached judgment of
participants in the legal processpolice, prosecutors, judges, and
juries. The
innocent are often particularly at risk. Most defendants charged with
crimes avoid the death penalty by reaching a plea bargain, a process that
someone who is innocent is naturally reluctant to submit to. Innocent
tend to insist on a trial, and when they get it the jury does not include
who will refuse on principle to impose a death sentence. Such people are
from juries in capital cases by a Supreme Court decision, Witherspoon v.
Illinois, that, some scholars believe, makes the juries more
In Alex Hernandez's third trial, the evidence against him was so scant
that the
DuPage County state's attorney's office sought an outside legal opinion to
determine whether it could get the case over the bare legal threshold
to go to a jury. Hernandez was convicted anyway, although the trial judge
refused to impose a death sentence, because of the paucity of evidence.

A frightened public demanding results in the aftermath of a ghastly crime
places predictable pressures on prosecutors and police, which can
sometimes lead
to questionable conduct. Confronted with the evidence of Brian Dugan's
the prosecutors in Hernandez's second trial had tried to suggest that he
Dugan could have committed the crime together, even though there was no
that the men knew each other. Throughout the state's case, the prosecutors
emphasized a pair of shoe prints found behind the Nicarico home, where a
would-be burglari.e., Hernandezcould have looked through a
window. Following
testimony that Hernandez's shoe size was about 7, a police expert
testified that
the shoe prints were "about size 6." Until he was directly cross-examined,
expert did not mention that he was referring to a woman's size 6, or that
he had
identified the tread on one of the prints as coming from a woman's shoe, a
he'd shared with the prosecutor, who somehow failed to inform the defense.

This kind of overreaching by the prosecution occurred frequently. A
grand jury was convened after Cruz and Hernandez were freed. Three former
prosecutors and four DuPage County police officers were indicted on
counts, including conspiring to obstruct justice. They were tried andas is
often the case when lawenforcement officers are charged with overzealous
execution of their dutiesacquitted, although the county subsequently
reached a
multimillion-dollar settlement in a civil suit brought by Hernandez, Cruz,
their onetime co-defendant, Stephen Buckley. Despite assertions by DuPage
prosecutors that Jeanine Nicarico's killer deserves to die, Brian Dugan
never been charged with her murder, although Joseph Birkett, the state's
attorney for the county, admitted in November that new DNA tests prove
role with "scientific certainty." In the past, Birkett had celebrated the
acquittal of his colleagues on charges of conspiring to obstruct justice
and had
attacked the special prosecutor who'd brought the charges. He continues to
public statements suggesting that Cruz and Hernandez might be guilty. An
ultimately unsuccessful attempt was made to demote the judge who acquitted
and last year, when the judge resigned from the bench, he had to pay for
his own
going-away party. In the meantime, the prosecutor who tried to incriminate
Hernandez with the print from a woman's shoe is now Chief Judge in DuPage

If these are the perils of the system, why have a death penalty? Many
would answer that executions deter others from committing murder, but I
found no
evidence that convinced me. For example, Illinois, which has a death
has a higher murder rate than the neighboring state of Michigan, which has
capital punishment but roughly the same racial makeup, income levels, and
population distribution between cities and rural areas. In fact, in the
decade the murder rate in states without the death penalty has remained
consistently lower than in the states that have had executions. Surveys of
criminologists and police chiefs show that substantial majorities of both
doubt that the death penalty significantly reduces the number of

Another argumentthat the death penalty saves money, because it avoids the
expense of lifetime incarcerationdoesn't hold up, either, when you factor
the staggering costs of capital litigation. In the United States in 2000,
average period between conviction and execution was eleven and a half
with lawyers and courts spewing out briefs and decisions all that time.

The case for capital punishment that seemed strongest to me came from the
who claim the most direct benefit from an execution: the families and
friends of
murder victims. The commission heard from survivors in public hearings and
private sessions, and I learned a great deal in these meetings. Death
brought on
by a random element like disease or a tornado is easier for survivors to
than the loss of a loved one through the conscious will of another human
It was not clear to me at first what survivors hoped to gain from the
death of a
murderer, but certain themes emerged. Dora Larson has been a
advocate for nearly twenty years. In 1979, her ten-year-old daughter was
kidnapped, raped, and strangled by a fifteen-year-old boy who then buried
her in
a grave he had dug three days earlier. "Our biggest fear is that someday
child's or loved one's killer will be released," she told the
commission. "We
want these people off the streets so that others might be safe." A
sentence of
life without parole should guarantee that the defendant would never repeat
crime, but Mrs. Larson pointed out several ways in which a life sentence
poses a
far greater emotional burden than an execution. Because her daughter's
was under eighteen, he was ineligible for the death penalty. "When I was
life, I thought it was life," Larson said to us. "Then I get a letter
saying our
killer has petitioned the governor for release."

Victims' families talk a lot about "closure," an end to the legal process
will allow them to come to final terms with their grief. Mrs. Larson and
told us that families frequently find the execution of their lost loved
killer a meaningful emotional landmark. A number of family members of the
victims of the Oklahoma City bombing expressed those sentiments after they
watched Timothy McVeigh die. The justice the survivors seek is the one
in the concept of restitution: the criminal ought not to end up better off
his victim. But the national victims'-rights movement is so powerful that
victims have become virtual proprietors of the capital system, leading to
troubling inconsistencies. For instance, DuPage County has long supported
Nicarico family's adamant wish for a death sentence for Jeanine's killer,
the virtually identical murder of Melissa Ackerman resulted in a life term
no possibility of parole for Brian Dugan, because Melissa's parents
preferred a
quick resolution. It makes no more sense to let victims rule the capital
than it would to decide what will be built on the World Trade Center site
according to the desires of the survivors of those killed on September
11th. In
a democracy, no minority, even people whose losses scour our hearts,
should be
entitled to speak for us all.

Governor Ryan's commission didn't spend much time on philosophical
debates, but
those who favored capital punishment tended to make one argument again and
again: sometimes a crime is so horrible that killing its perpetrator is
the only
just response. I've always thought death-penalty proponents have a point
they say that it denigrates the profound indignity of murder to punish it
in the
same fashion as other crimes. These days, you can get life in California
your third felony, even if it's swiping a few videotapes from a
Kmart. Does it
vindicate our shared values if the most immoral act imaginable, the
killing of another human being, is treated the same way? The issue is not
revenge or retribution, exactly, so much as moral order. When everything
is said
and done, I suspect that this notion of moral proportionultimate
punishment for
ultimate evilis the reason most Americans continue to support capital

This places an enormous burden of precision on the justice system,
however. If
we execute the innocent or the undeserving, then we have undermined, not
reinforced, our sense of moral proportion. The prosecution of Alex
demonstrated to me the risks to the innocent. A case I took on later gave
experience with the problematic nature of who among the guilty gets
selected for
execution. One afternoon, I had assembled a group of young lawyers in my
to discuss pro-bono death-penalty work when, by pure coincidence, I found
letter in my in-box from a man, Christopher Thomas, who said he'd been
of first-degree murder and sentenced to death, even though none of the
eyewitnesses to the crime who testified had identified him. We
investigated and
found that the letter was accuratein a sense. None of the eyewitnesses had
identified Thomas. However, he had two accomplices, both of whom had
against him, and Thomas had subsequently confessed three different times,
last occasion on videotape.

According to the various accounts, Chris Thomaswho is black, and was
at the time of the crimeand his two pals had run out of gas behind a strip
in Waukegan, Illinois. They were all stoned, and they hatched a plan to
somebody for money. Rafael Gasgonia, a thirty-nine-year-old Filipino
was unfortunate enough to step out for a smoke behind the photo shop where
worked as a delivery driver. The three men accosted him. Thomas pointed a
gun at
his head, and when a struggle broke out Thomas fired once, killing

I was drawn to Chris Thomas's case because I couldn't understand how a
parking-lot stickup gone bad had ended in a death sentence. But after we
the record, it seemed clear to us that Thomas, like a lot of other
was on death row essentially for the crime of having the wrong lawyers. He
been defended by two attorneys under contract to the Lake County public
defender's office. They were each paid thirty thousand dollars a year to
a hundred and three cases, about three hundred dollars per case. By
one assignment had to be a capital case. The fiscal year was nearly over,
neither of the contract lawyers had done his capital work, so they were
to Thomas's case together. One of them had no experience of any kind in
death-penalty cases; the other had once been standby counsel for a man who
defending himself.

In court, we characterized Thomas's defense as all you would expect for
hundred dollars. His lawyers seemed to regard the case as a clear loser at
and, given the impulsive nature of the crime, virtually certain to result
in a
sentence other than death. They did a scanty investigation of Thomas's
background for the sentencing hearing, an effort that was hindered by the
that the chief mitigation witness, Thomas's aunt, who was the closest
thing to
an enduring parental figure in his life, had herself been prosecuted on a
charge by one of the lawyers during his years as an assistant state's
As a result, Thomas's aunt distrusted the lawyers, and, under her
Chris soon did as well. He felt screwed around already, since he had
to the crime and expressed remorse, and had been rewarded by being put on
for his life. At the sentencing hearing, Thomas took the stand and denied
he was guilty, notwithstanding his many prior confessions. The presiding
who had never before sentenced anybody to death, gave Thomas the death

In Illinois, some of this could not happen now. The Capital Litigation
Fund has been established to pay for an adequate defense, and the state
Court created a Capital Litigation trial bar, which requires lawyers who
represent someone facing the death penalty to be experienced in capital
Nonetheless, looking over the opinions in the roughly two hundred and
capital appeals in Illinois, I was struck again and again by the wide
in the seriousness of the crimes. There were many monstrous offenses, but
also a
number of garden-variety murders. And the feeling that the system is an
ship is only heightened when one examines the first-degree homicides that
resulted in sentences other than death. Thomas was on death row, but
others from
Lake Countya man who had knocked a friend unconscious and placed him on
tracks in front of an oncoming train, for instance, and a mother who had
acid to her babyhad escaped it.

The inevitable disparities between individual cases are often enhanced by
factors, like race, which plays a role that is not always well
understood. The
commission authorized a study that showed that in Illinois, you are more
to receive the death penalty if you are whitetwo and a half times as
One possible reason is that in a racially divided society whites tend to
associate with, and thus to murder, other whites. And choosing a white
makes a murderer three and a half times as likely to be punished by a
sentence as if he'd killed someone who was black. (At least in Illinois,
and whites who murdered whites were given a death sentence at essentially
same rate, which has not always been true in other places.)

Geography also matters in Illinois. You are five times as likely to get a
sentence for first-degree murder in a rural area as you are in Cook
which includes Chicago. Gender seems to count, too. Capital punishment for
slaying a woman is imposed at three and half times the rate for murdering
a man.
When you add in all the uncontrollable variableswho the prosecutor and the
defense lawyer are, the nature of the judge and the jury, the
characteristics of
the victim, the place of the crimethe results reflect anything but a
proportionate morality.

And execution, of course, ends any chance that a defendant will
acknowledge the
claims of the morality we seek to enforce. More than three years after my
colleagues and I read Chris Thomas's letter, a court in Lake County
him to a hundred years in prison, meaning that, with good behavior, he
could be
released when he is seventy-one. He wept in court and apologized to the
family for what he had done.

Supporters of capital punishment in Illinois, particularly those in law
enforcement, often use Henry Brisbon as their trump card. Get rid of the
penalty, they say, and what do you do about the likes of Henry?

On the night of June 3, 1973, Brisbon and three "rap partners" (his
term) forced
several cars off I-57, an interstate highway south of Chicago. Brisbon
made a
woman in one of the cars disrobe, and then he discharged a shotgun in her
vagina. He compelled a young couple to lie down in a field together,
them to "make this your last kiss," and shot both of them in the back. His
in these crimes was uncovered only years later, when he confessed to an
working as a law librarian in the penitentiary where he was serving a
for rape and armed robbery. Because the I-57 killings occurred shortly
after the
Supreme Court declared capital punishment unconstitutional, Brisbon was
eligible for the death penalty. He was given a sentence of one thousand to
thousand years in prison, probably the longest term ever imposed in

In October, 1978, eleven months after the sentencing, Brisbon murdered
again. He
placed a homemade knife to the throat of a guard to subdue him, then went
several inmates to the cell of another prisoner and stabbed him
repeatedly. By
the time Brisbon was tried again, in early 1982, Illinois had restored
punishment, and he was sentenced to death. The evidence in his sentencing
hearings included proof of yet another murder Brisbon had allegedly
prior to his imprisonment, when he placed a shotgun against the face of a
clerk and blew him away. He had accumulated more than two hundred
violations while he was incarcerated, and had played a major role in the
takeover of Stateville prison, in September, 1979. Predictably, the death
sentence did not markedly improve Brisbon's conduct. In the years since he
first condemned, he has been accused of a number of serious assaults on
including a stabbing, and he severely injured another inmate when he threw
thirty-pound weight against his skull.

Brisbon is now held at the Tamms Correctional Center, a
"super-max" facility
that houses more than two hundred and fifty men culled from an Illinois
population of almost forty-five thousand. Generally speaking, Tamms
inmates are
either gang leaders or men with intractable discipline problems. I wanted
visit Tamms, hoping that it would tell me whether it is possible to
people like Brisbon, who are clearly prone to murder again if given the

Tamms is situated near the southernmost point of Illinois, farther south
parts of Kentucky. The Mississippi, a wide body of cloacal brown, floods
nearby lowlands, creating a region of green marshes along orange sandstone
bluffs. Tamms stands at the foot of one of those stone outcroppings, on a
savannalike grassland. The terms of confinement are grim. Inmates are
no physical contact with other human beings. Each prisoner is held
hours a day inside a seven-by-twelve-foot block of preformed concrete that
has a
single window to the outside, roughly forty-two by eighteen inches,
segmented by
a lateral steel bar. The cell contains a stainless-steel fixture housing a
toilet bowl and a sink and a concrete pallet over which a foam mattress is
The front of the cell has a panel of punch-plate steel pierced by a
network of
half-inch circles, almost like bullet holes, that permit conversation but
prevent the kind of mayhem possible when prisoners can get their hands
the bars. Once a day, an inmate's door is opened by remote control, and he
down a corridor of cells to an outdoor area, twelve by twenty-eight feet,
surrounded by thirteen-foot-high concrete walls, with a roof over half of
it for
shelter from the elements. For an hour, a prisoner may exercise or just
fresh air. Showers are permitted on a similar remote-control basis, for
minutes, several times a week.

In part because the facility is not full, incarceration in Tamms costs
about two
and a half times as much as the approximately twenty thousand dollars a
that is ordinarily spent on an inmate in Illinois, but the facility has a
remarkable record of success in reducing disciplinary infractions and
George Welborn, a tall, lean man with a full head of graying hair, a
and dark, thoughtful eyes, was the warden of Tamms when I visited. I
talked to
him for much of the day, and toward the end asked if he really believed
that he
could keep Brisbon from killing again. Welborn, who speaks with a
southern-Illinois twang, was an assistant warden at Stateville when
Brisbon led
the inmate uprising there, and he testified against him in the proceedings
resulted in his death sentence. He took his time with my question, but
guardedly, "Yes."

I was permitted to meet Brisbon, speaking with him through the punch-plate
the corridor in front of his cell. He is a solidly built African-American
man of
medium height, somewhat bookish-looking, with heavy glasses. He seemed
quick-witted and amiable, and greatly amused by himself. He had read all
the commission, and he displayed a letter in which, many years ago, he had
suggested a moratorium on executions. He had some savvy predictions about
political impediments to many potential reforms of the capital system.

"Henry is a special case," Welborn said to me later, when we spoke on the
"I would be foolish to say I can guarantee he won't kill anyone again. I
imagine situations, God forbid . . . But the chances are minimized
here." Still,
Welborn emphasized, with Brisbon there would never be any guarantees.

I had another reason for wanting to visit Tamms. Illinois's execution
chamber is
now situated there. Unused for more than two years because of Governor
moratorium, it remains a solemn spot, with the sterile feel of an
theatre in a hospital. The execution gurney, where the lethal injection is
administered, is covered by a crisp sheet and might even be mistaken for
examining table except for the arm paddles that extend from it and the
crisscrossing leather restraints that strike a particularly odd note in
world of Tamms, where virtually everything else is of steel, concrete, or

Several years ago, I attended a luncheon where Sister Helen Prejean, the
of "Dead Man Walking," delivered the keynote address. The daughter of a
prominent lawyer, Sister Helen is a powerful orator. Inveighing against
death penalty, she looked at the audience and repeated one of her favorite
arguments: "If you really believe in the death penalty, ask yourself if
willing to inject the fatal poison." I thought of Sister Helen when I
stood in
the death chamber at Tamms. I felt the horror of the coolly contemplated
of the life of another human being in the name of the law. But if John
Gacy, the mass murderer who tortured and killed thirty-three young men,
had been
on that gurney, I could, as Sister Helen would have it, have pushed the
I don't think the death penalty is the product of an alien morality, and I
respect the right of a majority of my fellow-citizens to decide that it
ought to
be imposed on the most horrific crimes.

The members of the commission knew that capital punishment would not be
abolished in Illinois anytime soon. Accordingly, our formal
many of which were made unanimously, ran to matters of reform. Principal
them was lowering the risks of convicting the innocent. Several of the
men who had been on death row and were then exonerated had made dubious
confessions, which appeared to have been coerced or even invented. We
recommended that all interrogations of suspects in capital cases be
We also proposed altering lineup procedures, since eyewitness testimony
proved to be far less trustworthy than I ever thought while I was a
We urged that courts provide pretrial hearings to determine the
reliability of
jailhouse snitches, who have surfaced often in Illinois's capital cases,
testifying to supposed confessions in exchange for lightened sentences.

To reduce the seeming randomness with which some defendants appear to end
up on
death row, we proposed that the twenty eligibility criteria for capital
punishment in Illinois be trimmed to five: multiple murders, murder of a
officer or firefighter, murder in a prison, murder aimed at hindering the
justice system, and murder involving torture. Murders committed in the
course of
another felony, the eligibility factor used in Christopher Thomas's case,
be eliminated. And we urged the creation of a statewide oversight body to
attempt to bring more uniformity to the selection of death-penalty cases.

To insure that the capital system is something other than an endless maze
survivors, we recommended guaranteed sentences of life with no parole when
eligible cases don't result in the death penalty. And we also outlined
aimed at expediting the post-conviction review and clemency processes.

Yet our proposals sidestepped the ultimate question. One fall day, Paul
the former U.S. senator who was one of the commission's chairs and is a
foe of the death penalty, forced us to vote on whether Illinois should
have a
death penalty at all. The vote was an expression of sentiment, not a
recommendation. What was our best advice to our fellow-citizens, political
realities aside? By a narrow majority, we agreed that capital punishment
not be an option.

I admit that I am still attracted to a death penalty that would be applied
horrendous crimes, or that would provide absolute certainty that the likes
Henry Brisbon would never again satisfy their cruel appetites. But if
death is
available as a punishment, the furious heat of grief and rage that these
inspire will inevitably short-circuit any capital system. Now and then, we
execute someone who is innocent, while the fundamental equality of each
survivor's loss creates an inevitable emotional momentum to expand the
categories for death-penalty eligibility. Like many others who have
with capital punishment, I have changed my mind often, driven back and
forth by
the errors each position seems to invite. Yet after two years of
deliberation, I
seem to have finally come to rest. When Paul Simon asked whether Illinois
have a death penalty, I voted no. 

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