growing list of factors that qualif
Illinois defendants for the death penalty
is at the center of a widening debate
by Aaron Chambers
Jack Davis wanted to add one more capital crime. Too many children
were being killed, he said, and their murderers should pay with
Beecher Republican was trying to convince the Illinois House the
time had come to expand the scope of the death penalty statute they
had enacted a few years earlier. Child killers, he argued, deserve
the same fate as cop killers and contract murderers and the five
other types of offenders the legislature had identified as terrible
enough to deserve this states ultimate punishment.
you invoked the death penalty for these people, then you certainly
should invoke the death penalty as a deterrent factor and,
yes, society demands some vengeance for those people who
have murdered children under the age of 16, and those people who
have murdered those children after a history of abusing that child
or torturing that child or feeding that child whiskey or drugs to
the ultimate demise of that child, he told his colleagues.
evidently was persuasive. The House voted 124 to 30 in favor of
his measure. The Senate and the governor agreed. And Illinois added
death penalty eligibility factor No. 8.
was 1981. Since Davis won his case against child killers, state
officials have added 12 other kinds of murder to the eligibility
list, bringing the total to 20. Murdering a schoolteacher or shooting
and killing someone from a vehicle, for example, can now qualify
a defendant for death. So can killing a community policing volunteer
or killing somebody in a cold, calculated and premeditated
manner pursuant to a preconceived plan, scheme or design.
Along the way, lawmakers also fiddled with the language that spells
out each eligibility factor. For instance, they narrowed Davis
amendment so that it would apply only in cases where the victim
is younger than 12. And they expanded the enumerated felonies that,
when committed together with murder, can qualify a defendant for
now the entire list of death-qualifying circumstances is at the
center of a widening debate that could come to a head this fall.
Thats when lawmakers, who are pressing to add yet another
type of murder to the statute, will consider Gov. George Ryans
veto of the legislation they approved last spring. Ryan, who called
a moratorium on state executions in January 2000 after 13 men on
Death Row were exonerated, says the list of eligibility factors
may already be too long.
the same time, a special commission, poised to recommend changes
in the states death penalty system, has been reviewing that
list with an eye to possible refinements. And the Illinois Supreme
Court could consider whether the broadening scope of the statute
has rendered it unconstitutional on its face.
be eligible for a death sentence in Illinois, a defendant must be
convicted of first degree murder and meet at least one of the eligibility,
or aggravating, factors. If a judge or jury finds the
defendant eligible for death, then a sentencing authority must weigh
aggravating factors against any number of so-called mitigating
factors, such as when a defendant has no significant history of
criminal activity. If there are no sufficient mitigating factors,
then the court must sentence the defendant to death.
framework like those in other states was designed
to comply with the U.S. Supreme Courts decision in Furman
v. Georgia and that decisions progeny. The 1972 decision
in Furman held that capital punishment, as it was administered
in Georgia and Texas, constituted cruel and unusual punishment in
violation of the Eighth and Fourteenth amendments because it could
be arbitrarily applied. That decision effectively invalidated the
death penalty. Subsequent decisions have held that a states
sentencing scheme must narrow the class of people eligible for the
death penalty. The statutes also must give judges and juries clear
guidelines for determining an appropriate sentence.
current death penalty law was enacted in 1977. In its original form,
it provided seven eligibility factors, circumstances in a murder
that the legislature deemed heinous enough to deserve death, including
killing a police officer, killing under contract and killing in
the course of a felony.
now have agreed that gang-related killings are heinous enough, too.
And when they return to Springfield next month, they could disregard
the governors objections on that point.
spring, the legislature voted overwhelmingly to add factor No. 21
when the offender commits murder in furtherance of
the activities of an organized gang. The measures sponsor,
Rep. Susana Mendoza, says it was prompted by a gang-related murder
in her district, and that it would deter future gang-related violence.
The Chicago Democrat promises to attempt to override the governors
veto. To do that, she would need support from three-fifths of the
members in each chamber 36 in the Senate and 71 in the House.
governor, who voted for the death penalty when he was in the legislature
25 years ago, has since raised concerns about the administration
of that system. When he called the moratorium, he said he feared
an innocent person could be executed. At the same time, he formed
the commission to review the system and said he wouldnt sign
off on more executions until the panel returned with recommendations
for change. In vetoing Mendozas measure, he said that while
it represents a well-meaning effort to address serious gang
activity, it is misdirected in light of existing laws,
constitutional concerns and our past history of erroneously sentencing
individuals to death.
his written explanation to lawmakers, Ryan argued the existing death
penalty statute covers most serious gang activity that results in
murder. Murders committed during various drug offenses, for example,
are punishable by death. So is murder while committing one of several
felony offenses and killing a police officer. Further, Ryan complained
that the scope of the proposed language pertaining to gang activities
is too broad and that it could discriminate against racial and ethnic
he had another concern. Moreover, as we continue to almost
annually add eligibility factors to our death penalty statute, we
introduce more arbitrariness and discretion and edge ever closer
to our previous capital punishment system that was effectively held
unconstitutional by the United States Supreme Court in 1972,
he wrote. Over the last year, I have heard from prosecutors,
judges and defense attorneys who have suggested we already have
far too many eligibility factors under our existing capital punishment
lawmakers stick by the votes they cast last spring, Mendoza will
prevail. Her measure passed with 44 votes in the Senate and 77 in
the House. Im looking forward to my colleagues standing
by their vote on that, she says.
the governor could get some extra ammunition as early as this month,
when his commission is expected to release its recommendations for
reforming the death penalty system. Panel members, including former
federal Judge Frank McGarr, the commissions chair, former
U.S. Sen. Paul Simon and former U.S. Attorney Thomas Sullivan, have
studied several aspects of the capital punishment law, not just
the aggravating factors. Nonetheless, eligibility for the death
sentence has been a subject of intense scrutiny and debate within
states high court could weigh in on the matter, too. The justices
are considering at least two cases in which Death Row inmates argue
that having so many eligibility factors has rendered the death penalty
statute unconstitutional on its face. Essentially, the defendants
maintain that, while each aggravating factor separately may narrow
the class of people who are eligible for death, collectively they
encompass the circumstances of most conceivable murders, making
the statute as a whole unconstitutional. They argue the statute
has become so broad that the intent of the law, to limit the cases
where death may be imposed, has been negated. The situation
is now that there are so many exceptions to the rule that they have
swamped the rule, says Charles Hoffman, an assistant appellate
defender challenging the law on behalf of Death Row inmate Raul
the 13 men were found to have been wrongfully convicted and sentenced
to death in this state, all three branches of government took steps
to reform the system. The governor called the moratorium and formed
his commission. The legislature set aside about $14 million per
year to help cover capital litigation expenses for poor defendants.
And the high court implemented a series of safeguards, including
requiring most attorneys handling capital cases to meet minimum
now, Illinois officials not only must wrestle with so-called prosecutorial
misconduct, ineffective assistance of defense counsel and a host
of other problems associated with the administration of capital
punishment, they might have to consider whether the legislature
has gone too far in its attempts to punish the worst offenders.
course, there are political considerations. Its no secret
that by voting for aggravating factors, lawmakers help build their
tough-on-crime images. Even the legislator who sponsored the first
additional aggravating factor admits as much. A lot of that
was press and showmanship, Davis says about all of the factors
that have been added. It was for the folks back home at election
lawmakers apparently are more interested than prosecutors in the
list of death-qualifying crimes. The majority of the statutes
20 aggravating factors have not been used widely, if at all, to
make defendants eligible for death.
decisions by the Illinois Supreme Court, to which defendants sentenced
to death can automatically appeal their cases, have referred to
only nine of the factors, says Bernard Murray, chief of the criminal
prosecutions bureau at the Cook County states attorneys
office. Those reported factors include six of the original seven,
as well as killing a child, premeditated murder and murder involving
torture, he says. The remaining 11 all but two added since
1990 have not been reported. Killing someone during a hijacking,
which took effect in 1977, and killing someone during any one of
various drug offenses, which took effect in 1990, have not been
an analysis circulated within the gubernatorial death penalty commission
indicates that prosecutors have overwhelmingly favored two aggravating
factors. The analysis, which covered 261 capital cases, found aggravating
factors were used 391 times to make defendants eligible for death
(defendants can meet more than one factor). And of those 391 instances,
prosecutors used committing a murder in the course of a felony 44
percent of the time, and committing two or more murders 36 percent
of the time.
eligibility factors] are all well-intended, says Peoria County
States Attorney Kevin Lyons, but when it comes to practically
applying them, they are for the most part set on the shelf by prosecutors.
outside the courtroom, leading prosecutors question whether the
death penalty statute is too broad. Anything we can do to
narrow the scope and raise the bar and make sure [the system] is
more fair and accurate, I would support, Republican Attorney
General Jim Ryan, a candidate for governor, told the Chicago
Sun-Times in August. We have to be certain that the person
that ultimately is executed is guilty and had full access to the
courts. Narrowing the scope means to make sure that
were only executing the worst of the worst.
specifically, the attorney general would like to see fewer aggravating
factors, according to spokesman Dan Curry, because Ryan believes
that more factors can lead to more people being sent to Death Row.
One of the ways that we can increase the fairness and accuracy
of the system is to subject fewer people to the death penalty system,
while the comprehensiveness of the death-qualifying list has created
constitutional concerns, the number of aggravating circumstances
doesnt appear to have coincided with more people on Death
Row. Still, Curry says, the issue does deserve closer study. Cook
County States Attorney Richard Devine, who for a time considered
running for governor on the Democratic ticket, also believes
there may be too many qualifying factors for the death penalty,
and that we should examine that number, says Marcy OBoyle,
political climate surrounding the death penalty may be softening.
As recently as a few years ago, it was not popular to talk about
reforming the system in any way. In fact, such talk could spell
trouble for anyone seeking elected office. Still, this reform-minded
mood has yet to take hold in the legislature. Many lawmakers are
happy to vote for additional aggravating factors; its likely
they would be reluctant to scale back the existing law.
law, with its death-qualifying factors, is governed largely by Furman,
the decision that struck down death penalty statutes across the
country as constituting cruel and unusual punishment. The principles
set forth were refined in subsequent decisions. The five justices
who formed the majority in Furman, detailing their reasoning
in separate opinions, said the death penalty had been implemented
in an arbitrary and capricious manner, had been wantonly
and freakishly imposed and had been applied selectively to
that decision, states reconstructed their death penalty statutes
in an effort to comply with the principles the justices set forth.
Those statutes then made their way back up to the court and, in
1976, the justices ruled in Gregg v. Georgia that that state
had managed to craft a death penalty law that met the constitutional
test. Concerns expressed in Furman that the death penalty
not be imposed in an arbitrary or capricious manner,
as three justices wrote, were met by a statute that gives a judge
or jury adequate information to impose punishment. The justices
said a bifurcated sentencing hearing, such as the one later implemented
in Illinois, is preferable. The Georgia statute also met the test,
they wrote, because it required the sentencing authority to consider
the crimes circumstances and the defendants character
before recommending sentencing.
decisions that followed, the court reiterated that under Furman
and Gregg, an aggravating circumstance must genuinely
narrow the class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder.
nascent argument in this state is that Illinois statute cannot
be permitted under those decisions because it no longer truly limits
the circumstances under which convicted murderers can face the death
the high number of aggravating factors so greatly expands the class
of death-eligible defendants that it is difficult to imagine a first
degree murder defendant who does not qualify under at least one,
if not several, factors, wrote Kathryn Saltmarsh, an assistant
appellate defender who represents Death Row inmate Mark Ballard,
in her brief to the state Supreme Court.
the state nor the federal high court has specifically considered
whether a states death penalty statute can be rendered unconstitutional
because there are too many aggravating factors, according to attorneys
handling the two Illinois Supreme Court cases.
their part, prosecutors are in court defending the constitutionality
of this states law. They argue the aggravating factors and
the statute in general sufficiently narrow the class of people eligible
for death. The parameters of the laws application, they say,
are clearly defined.
Attorney General David Iskowich, responding to arguments in the
Ballard case, wrote that there are two classes of people
those under 18 years of age and those convicted of second degree
murder that statutorily cannot be eligible for the death
penalty in Illinois. And he notes that several factors, such as
murdering an emergency medical technician, would only apply in specific
circumstances. Ballards blanket statement that there
are too many capital eligibility factors is preposterous
when a reading of the statutory factors shows that each provision
is narrowly tailored to fit a specific set of facts or circumstances
and, as such, each genuinely narrows the class of persons who can
be eligible for capital punishment.
Iskowich points out that Illinois law requires the capital sentencing
hearing to occur in two phases: the eligibility phase and the aggravation/mitigation
phase, where the sentencing authority must decide whether the defendant
should be sentenced to death. During that second phase, the state
can invoke statutory aggravating factors or other circumstances
not provided for by law.
the defendant can offer both statutory and nonstatutory mitigating
factors. That opportunity for the sentencing authority to consider
the unique circumstances of each case, Iskowich argues, puts the
law in line with the Eighth Amendments requirement that each
case be individ-ually assessed. Curry, the attorney generals
spokesman, says theres no conflict between the attorney generals
statutory obligation to defend state law in court and his attempt
to exert influence on the legislative process to reshape that law.
her part, Mendoza, the legislator who is sponsoring the proposal
to add gang-related murders to the eligibility list, argues lawmakers
have adequately scrutinized each of the additional factors and says
shes comfortable with the death penalty statute as a whole.
Youre always going to have arguments, she says.
I think if you have five eligibility factors, youre
going to have people arguing its unconstitutional for one
reason of another.
Sen. Carl Hawkinson, a Galesburg Republican and chairman of the
Senate Judiciary Committee who is regarded as one of the top legal
minds in the legislature, says, I think those elements that
have been enacted have been carefully considered and the argument
that the number of them would render [the statute] unconstitutional
is probably not a sound argument.
this isnt the first time defense attorneys have challenged
the statute. They are constantly trying different strategies for
dismantling it. In fact, this states first post-Furman death
penalty law was struck down as unconstitutional. That law required
that a three-judge panel be convened to decide whether to sentence
to death a defendant convicted of murder. The state Supreme Court
ruled in 1975 that the provision intruded on a circuit courts
states next death penalty statute, implemented in 1977, has
survived, though the Illinois Supreme Court once came within a single
vote of striking it down.
1979, the high court considered whether the death penalty statute
violated the state Constitutions separation of powers provision
because the prosecutor has unfettered discretion to seek a special
capital sentencing hearing after a defendant is found guilty of
first degree murder.
a typical criminal case, the judge decides the sentence after conviction,
within statutory guidelines. But in a capital case, the prosecutor
has sole discretion to ask for the special hearing, where a judge
or jury must decide whether to sentence the defendant to death.
The prosecutor, therefore, can preclude the imposition of a death
sentence by not requesting such a hearing and, it was argued, is
therefore unconstitutionally participating in the sentencing process.
the high court disagreed. The majority wrote that prosecutors generally
enjoy wide discretion in both the initiation and the management
of criminal litigation. They rejected the separation of powers
argument and a separate argument that letting the prosecutor decide
whether to seek the sentencing hearing would lead to arbitrary
and capricious action.
decision was the closest the justices have come to striking down
the current law. Three of the courts seven justices disagreed
with the majority opinion and said they would have invalidated the
statute. But two years later, after Justice Seymour Simon joined
the court, the dissenters declined to join their new colleague and
strike down the law. Instead, when Simon adopted their argument
in a 1981 decision, the three justices voted to uphold the law by
adhering to stare decisis the doctrine of precedent,
which requires courts to follow earlier judicial decisions when
the same points arise.
more recently, condemned inmate Donald Bull challenged the law after
nine Death Row inmates had their convictions reversed and sentences
vacated. He argued in 1998 that the law was flawed because of the
inevitability that innocent persons will be wrongly convicted of
capital crimes and executed.
state high court responded that the American criminal justice system
is not perfect, but it provides maximum protection against
mistakes. The General Assembly and the court, the majority noted,
had built additional safeguards into the system to protect defendants.
The issue before the court, according to the majority, was whether
Illinois law should provide the death penalty as punishment. And
that, the justices concluded, was a question for the legislature.
Justice Moses Harrison II, now chief justice, dissented from that
opinion with words that helped make him, like the governor, a darling
of the anti-capital punishment community. If these [nine]
men dodged the executioner, it was only because of luck and the
dedication of the attorneys, reporters, family members and volunteers
who labored to win their release, he wrote. They survived
despite the criminal justice system, not because of it.
the high court has a fresh opportunity to revisit the constitutionality
of the states death penalty statute. The legislature has a
shot at expanding the class of people eligible for death. And the
lame duck governor, who has held up the death penalty process for
nearly two years, can have a final word on the administration of
this states ultimate punishment.
Issues, October 2001
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