The death penalty: "Arbitrary and capricious"

Some people have assailed my power to commute sentences, a power that literally hundreds of legal scholars from across the country have defended. The prosecutors in Illinois have the ultimate commutation power, a power that is exercised every day. They decide who's going to be the subject to the death penalty, who will get a plea deal, or even who may get a complete pass on prosecution. Every day in this state that happens. I ask about what standards they make these decisions on. We don't know. They're not public. There were more than 1,000 murders last year in Illinois, and there is no doubt that all murders are cruel and they're wrong, yet less than 2 percent of those murder defendants are going to receive the death penalty. That means that more than 98 percent of victims' families don't get and will not receive whatever satisfaction can be derived from the execution of the murderer. Moreover, if you look at the cases as I have done, both individually and collectively, a killing within the same circumstances might get you 40 years in one county and the death sentence in another county. I have also seen co-defendants who are equally guilty, where one gets sentenced to a term of years, while another ends up on death row.

[Former U.S.] Supreme Court Justice Potter Stewart has said that the imposition of the death penalty on defendants in this country is as freakish and arbitrary as who gets hit by a bolt of lightning.

After the flaws of our death penalty system were exposed, the Supreme Court of Illinois began to reform its rules and to improve the procedures for trying capital cases. It changed the rule to require that state's attorneys give advance notice to defendants that they plan to seek the death penalty, before trial, instead of after conviction. The Supreme Court also enacted new discovery rules designed to prevent trials by ambush and to allow for better investigation of cases from the very beginning.

But shouldn't that mean if you were tried or sentenced before the rules changed, you ought to get a new trial or sentencing with the new safeguards of the rules? This issue has divided our Supreme Court, some saying yes, a majority saying no. These justices have a lifetime of experience with the criminal justice system, and it concerns me that these great minds so strenuously differ on an issue of such importance, especially where life or death hangs in the balance.

What are we to make of the studies that showed that more than 50 percent of Illinois jurors couldn't understand the confusing and obscure sentencing instructions? What effect did that problem have on the trustworthiness of death sentences? A review of the cases shows that often even the lawyers and the judges are confused about the instructions. Cases still come before the Supreme Court with arguments about whether the jury instructions were proper.

As I came closer to my decision, I knew that I was going to have to face the question of whether I believed so completely in the choice I wanted to make that I could face the prospect of even commuting the death sentence of Danny Edwards, a man who had killed a close family friend of mine. Even my wife was angry and disappointed at my decision, like many of the other families are going to be.

I was struck by the anger of the families of murder victims. To a family, they talked about closure. They pleaded with me to allow the state to kill an inmate in its name to provide the families with closure. But is that the purpose of capital punishment? Is it to soothe the families? And is that truly the families' experience?

I can't imagine losing a family member to murder, nor can I imagine spending every waking day for 20 years with a single-minded focus to execute the killer. The system of death in Illinois is so unsure that it's not unusual for cases to take 20 years before they are resolved. Thank God. Because if it moved any faster, then Anthony Porter, the Ford Heights Four, Ronald Jones, Madison Hobley and all the other innocent men that we've exonerated might already be dead and buried.

But it is cruel and unusual punishment for family members to go through this pain, this legal limbo for 20 years. Perhaps it would be less cruel if we sentenced the killers to life in a 6-by-12 cell and used our resources to better serve victims.

My heart ached when I heard one grandmother who lost children in an arson fire. She said that she couldn't afford proper grave markers for her grandchildren who died. Why can't the state help families provide a proper burial?

Another crime victim came to our family meeting. He believed an inmate sent to death row for another crime also shot and paralyzed him. The inmate, he says, gets free medicine, free healthcare, while the victim that he shot struggles to pay his substantial medical bills, and as a result, he has forgone getting proper medical care to alleviate the physical pain that he endures.

What kinds of victim services are we providing? Are all of our resources geared toward providing this notion of closure by an eye for an eye? Closure by execution instead of tending to the physical and social needs of family victims? And what kind of values are we instilling in those wounded families and in the young people? As Gandhi said, an eye for an eye only leaves the whole world blind.

President Lincoln often talked of binding up wounds as he sought to preserve the Union. He said: "We're not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection."

I have had to consider not only the horrible nature of the crimes that put men on death row in the first place, the terrible suffering family members of the victims, the despair of the family members of the inmates, but I have had also to watch in frustration as members of the Illinois General Assembly failed to pass even one substantive death penalty reform in the state! The fact is that the failure of the General Assembly to act is merely a symptom of the larger problem. Many people express the desire to have capital punishment. Few, however, seem to prepare to address the tough questions that arise when the system fails. It's easier and more comfortable for politicians to be tough on crime and to support the death penalty. It brings votes. But when it comes to admitting that we have a problem, most run for cover ... When will the system be fixed? When is it going to be made better? We know that it's worse than 50 percent. How much more risk can we afford? And will we actually have to execute an innocent person before the tragedy that is our capital punishment system in Illinois really be understood? This summer, the United States district court judge held the federal death penalty was unconstitutional and noted that, with the number of recent exonerations based on DNA and new scientific technology, we without a doubt executed innocent people before this technology emerged.

Next Page: "I no longer shall tinker with the machinery of death"

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