The burden of improving the death penalty
system shifts to Rod Blagojevich

by Aaron Chambers

The death penalty reform torch passed from Gov. George Ryan to Gov.-elect Rod Blagojevich early last month during a joint appearance outside the executive suite in the state Capitol.

The two discussed capital punishment only for a moment. But during that time, Blagojevich, a Democrat, made clear, as he stood beside the Republican governor who turned reforming the system into something of a crusade, that he intends to follow that legacy.

The governor-elect’s comments tracked the governor’s standard stump speech on the issue, from his reference to the 13 men who were exonerated from Death Row while another 12 were executed to his use of the term “broken” to describe the system. “I believe there is no reason to rush on lifting the moratorium,” Blagojevich said, referring to Ryan’s three-year ban on executions.

The burden of improving a system under which defendants were wrongfully convicted and sentenced to death shifts to Blagojevich. Yet, he who declares the system broken has the burden of declaring it fixed. And that means setting a standard for reform, and seeing that it’s met.

“When George Ryan put the moratorium in place and said, ‘Let’s fix it,’ he gave us an enormous duty,” says Sen. Robert Molaro, a Chicago Democrat who co-chaired a legislative task force on reform. “Trying to get the right model, something where both chambers [of the legislature], as well as Rod Blagojevich, can actually come out and say, ‘This is what I think will fix the problem with the death penalty,’ is going to be very difficult to do. That’s a pretty profound statement: ‘We in Illinois have fixed the death penalty and how to impose capital punishment.’”

Blagojevich has stated he believes the death penalty is an appropriate punishment in certain cases. Should he wish to revive executions, he must preside over revisions in the capital punishment system sufficient to make a declaration that it’s been “fixed.”

He has said he supports the mora-torium on executions and believes certain reforms must be enacted before he will permit them. He has not said what those reforms might be, but he has mentioned a few areas where he sees the need for change. These include enlarging the state’s trust fund used to offset capital litigation expenses, requiring that confessions in murder cases — but not interrogations — be videotaped, increasing funding for DNA testing and prohibiting the execution of somebody convicted solely on the testimony of a so-called jailhouse informant.

Blagojevich also has said he will not permit mentally retarded people to be executed. The U.S. Supreme Court last year ruled this practice unconstitutional. Thus, the state has no choice over whether to execute such people. Now, the state must provide a statutory definition for the condition.

Yet as Ryan’s struggle illustrates, persuading the General Assembly to make fundamental changes to the death penalty statute is no easy task, particularly when those changes involve installing additional protections for defendants. Such votes can be construed on the campaign trail as being soft on crime. Similarly, lawmakers are reluctant to vote against legislation that is viewed as getting tough on crime.

The debate, in large part, has pitted prosecutors, police and more-conservative lawmakers against proposals forwarded by Gov. Ryan’s commission on the death penalty.

“I don’t expect an overly large overhaul of the system because of the position of law enforcement,” House Speaker Michael Madigan, a Chicago Democrat, told a public radio reporter last month. “There are many Demo-crats who are very interested in the position of law enforcement. So I’m not expecting real big-time change.”

Consider the legislature’s handling, during its fall veto session, of two measures related to the death penalty. Lawmakers embraced a bill that expands the scope of the death penalty — just the opposite of what reformers want to do — and forwarded “reform” legislation that would do little to change the handling of capital trials.

The first measure was aimed at expanding investigatory powers of law enforcement officials to fight terrorism. The most controversial provision: It makes murder in the course of terrorism punishable by death, creating the 21st death-eligibility factor. The governor objected to this point in particular, saying lawmakers should not expand the death penalty when he’s trying to reform it. He vetoed the provision twice; during the November session, lawmakers overrode that veto, enacting the measure into law.

“It’s almost impossible to vote against it because how do I go back to my district and say I voted against an anti-terrorism bill?” Molaro asks. “When you’ve got something that’s called an anti-terrorism bill, does that mean if you vote against it you’re pro-terrorism?”

The second measure lawmakers considered, which represented an effort to address concerns that have been raised about the system, centered on a provision that would expressly permit the Illinois Supreme Court to reduce to life in prison death sentences it deems “fundamentally unjust.” Proponents called the bill, advanced by Senate Republicans and supported by prosecutors, a good first step toward repairing the system. But critics called that provision meaningless because, they say, the court already has the authority to reduce a sentence that’s fundamentally unfair. In addition, as State Appellate Defender Theodore Gottfried says, “The bill fails to include the great majority of reforms” forwarded by the governor’s commission.

The Senate passed the bill and the governor pledged a veto should it pass the House on January 6 or 7, the last two days of the 92nd General Assembly. The House isn’t likely to approve the measure, though. Madigan has called for deeper revisions and has been less than enthusiastic about the proposal. “There has to be more change than the Senate Republicans are prepared to do,” he told the radio reporter. “I’m not certain where it will end, but the examination will continue through the next term of the General Assembly.”

A new two-year session, the 93rd General Assembly, begins January 8.

The legislature has in recent years passed several measures geared to improve the administration of the ultimate punishment. They include the fund for capital litigation expenses (an effort to address inadequate funding for lawyers handling capital cases), a requirement that forensic evidence in some criminal cases be preserved until the defendant is executed and a requirement that all felons submit DNA samples to a statewide database.

The Illinois Supreme Court, meanwhile, changed its rules governing death penalty cases to require, for example, that most attorneys handling capital cases meet enumerated standards of experience.

But the legislature has not acted on proposals that would fundamentally alter the administration of capital cases at the trial level — something that reform advocates say is necessary to fix the system. Lawmakers declined to act, for example, on recommendations forwarded last spring by the governor’s commission. Several of the proposals are sweeping, such as a reduction in factors that together with murder make a defendant eligible for death and creation of a statewide panel to review a state’s attorney’s decision to seek death in a murder case.

But Blagojevich will be operating in a legislative climate some believe will be more conducive to reform than during Ryan’s tenure. The key change in the new General Assembly: Republicans will no longer control the agenda in the Senate. That doesn’t mean reform proposals will sail through the chamber once Democrats assume control this month, but it does mean that measures designed to overhaul the system will more likely get a vote. Under retiring Senate President James “Pate” Philip, a Wood Dale Republican, the Senate didn’t schedule hearings on the most far-reaching proposals.

“We will vote on them, but we may find that the details of these reforms are very difficult to reach consensus on,” says Sen. John Cullerton, a Chicago Democrat expected to chair the Senate Judiciary Committee once his party takes control of the chamber. “For example when you say let’s videotape the confession and not the interrogations, there’s a real practical question as to when the interrogation ends and the confession begins. And there’s also the issue of cost.”

The climate also could be altered if Gov. Ryan decides to commute to life in prison the sentences of any or all of the 160 inmates on Illinois’ Death Row. Statutory changes generally are not retroactive and, as such, would not affect the cases of those already convicted and sentenced to death. Ryan could render this question moot by commuting the sentences. Doing so, though, could produce a backlash among lawmakers.

The burden now belongs to Blagojevich.

Illinois Issues, January 2003

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