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By F. MARK SIEBERT

Capital punishment: Illinois' first execution after 28 years

After a hiatus of 28 years capital punishment returned to Illinois on September 12 when Charles Walker was executed by lethal injection. This was the first execution under a law passed 13 years ago. Predictably, a great deal of legal skirmishing over its constitutionality filled the intervening period, and it was still in progress at the time of Walker's execution. It was a race between final pronouncement on the law and Walker's execution. That the execution took place was in part possible because Walker had indicated that he preferred death to life imprisonment and wished no more efforts at delay to be made on his behalf.

Legal maneuvering for the individual fills the period between initial imposition of the sentence and ultimate execution. State and federal statutes together provide eight possible levels of appeal of death sentences. These ordinarily review procedure rather than evidence. One is automatic: Article VI, section 4b of the Illinois Constitution requires that the Illinois Supreme Court review all impositions of the death sentence.

It is hard to assess the situation for all those under sentence at any given time. For example, at the end of 1988 there were 109 Illinois death sentence cases at seven of the eight possible levels of appeal. By this summer there were 126 inmates on death row, at various stages of appeal. Even after Walker had exhausted all possible appeals and had informed the Prisoner Review Board that he wished no efforts to be made on his behalf, there was a request from some sources for executive stay of the execution because another Illinois case raising constitutional issues might reach the U.S. Supreme Court.

The route to the present looks like this.

August 24, 1962: The last execution in Illinois took place in the Cook County jail (coincidentally, Gov. James R. Thompson was involved in this case in his role as prosecutor in the Office of the Cook County State's Attorney). 1972: The U.S. Supreme Court, ruling on a Georgia case, threw out the death penalty for the entire nation because laws in most states could result in unequal imposition and failure to consider mitigating circumstances.

1973: The Illinois General Assembly passed Public Act 78-921, placing imposition of the death penalty in the hands of a three-judge panel.

November 1975: The Illinois Supreme Court declared the law unconstitutional. The provision for a three-judge panel touched upon the operation of the courts, since sentencing had conventionally been exercised by a single judge. In effect the legislature created a court. The high court struck down the law as breaching constitutionally guaranteed separation of powers.

. . . at the end of 1988 there were 109 Illinois death sentence cases . . .this summer there were 126 inmates on death row, at various stages of appeal
July 1976: In another Georgia case (Gregg v Georgia) the U.S. Supreme Court ruled that capital punishment would be permissible under certain circumstances. This triggered a flurry of activity in many states to pass acceptable legislation.

June, 1977: The General Assembly passed Public Act 80-26, modeled on the law found acceptable in Gregg. The law was described as "defendant-oriented."

June 1977: The governor signed the new law.

January 1979: A Cook County circuit court ruled the law unconstitutional because of the possibility of uneven application across the state. Amid the spate of death penalty laws passed across the nation, Illinois' is unique in its provision that the court can consider the death penalty only if recommended by the

26/Octobcr 1990/Illinois Issues


prosecution; the state's attorney can make this decision after conviction. This, said the circuit judge, could result in uneven application. (In the three-year period 1977-80 the state's attorney in Sangamon County refrained from requesting the penalty in all 10 cases in which he might have done so. During the same period his counterpart in Champaign County recommended the penalty in all eight possible cases; in Cook County the recommendation was made in 51 out of 80 cases.)

April 1979: The circuit court in Sangamon County ruled the law constitutional. In his opinion circuit court Judge Ben Miller, now a justice on the state Supreme Court, said that it is not unconstitutional to grant discretion to state's attorneys. He also said that imposition was not automatic, and that the death sentence did not constitute cruel and inhuman punishment.

November 1979: The first case questioning the law, People ex rel Carey v Cousins, reached the Illinois Supreme Court, which ruled it constitutional 4-3. The dissenters (Chief Justice Joseph H. Goldenhersh and Justices William G. Clark and Howard C. Ryan) established the battle lines for a controversy that lasted for the next 10 years. They criticized the discretion given state's attorneys because it breached the separation of powers. They also criticized the lack of standards to guide state's attorneys. The majority held that while there might be uneven application this ultimate penalty might be imposed for varying degrees of culpability that it would not be arbitrary because in each case it would depend upon the strength of the conviction.

February 1980: The next case to reach the Supreme Court injected a highly emotional issue when the court ruled that killing a fetus during killing of the mother is not murder. The Senate rushed to prepare a bill on fetal murder.

April 1980: The court ruled for the first time on specific imposition of the sentence in People v Carlson. It overturned on the grounds of lack of consideration of mitigating circumstances.

November 1981: In People v Lewis the court upheld the sentence for the first time. By this time Justice Seymour Simon had replaced Justice Thomas E. Kluczynski. Simon agreed with the minority in Carey v Cousins on the matter of unequal application and expected them to join him in finally declaring the law unconstitutional. They declined on the grounds of stare decisis the legal principle that a decision once made should remain in place in the absence of unusual circumstances. Simon began a series of dissents from each death penalty decision, always raising the objection of unequal application in addition to other reasons he might find. (Interestingly, this sentence was later changed to life imprisonment when it emerged that prosecutors had used information they knew to be inaccurate at post-trial hearings.)

September 1983: The legislature changed the method of execution from electrocution to lethal injection.

October 1984: A sharp exchange between Simon and Ryan. Simon pointedly criticized the three early dissenters for not joining him, and Ryan responded with the stare decisis argument, saying that Simon's repeated dissents caused unrewarding delays. (For a discussion of the situation see Illinois Issues, November 1987, p. 10.)

February 1988: In five decisions the court clarified a number of issues relating to imposition of the death penalty. As usual, Simon dissented.

January 1989: In an opinion upholding the penalty Ryan criticized the almost automatic argument of ineffective counsel. Significantly, he also criticized the protracted appeal process, which probably reflected the "law and order" temper of the times.

May 1989: In an appeal (People v Silagy) a U.S. district court judge ruled the Illinois law unconstitutional because of the discretion given state's attorneys, the lack of guidelines and the fact that the permission for prosecution to recommend the penalty after conviction hindered the defendant's constitutional right to effective counsel.

April 1990: After a series of decisions broadening the possibility of imposing a death sentence, the U.S. Supreme Court ruled that friends and supporters cannot intervene for a person who does not wish to continue appeals procedures. This applied to Walker who had so signified in a statement to the Prisoner Review Board and in a press conference.

May 1990: A federal appeals court overturned the decision of the U.S. district court in Silagy.

May 17, 1990: The Illinois Supreme Court set the September 12 date for Walker's execution.

Summer 1990: Several hundred Illinois attorneys petitioned Gov. Thompson to delay Walker's execution pending a possible U.S. Supreme Court decision on Silagy.

August 1990: The Illinois Department of Corrections began preparation for Walker's execution.

. . . in his final . . . address Chief Justice Thomas J. Moran decried protracted appeals of the death penalty and blamed them on inexperience on the part of trial lawyers

September 1990: A U.S. district court judge denied a request for a stay of Walker's execution as part of a class action suit challenging the execution procedure. This arose out of doubts raised by the manufacturer of the apparatus for administering the lethal injection about its efficacy and questions about the legality of the drugs to be used.

In August, in his final "State of the State's Judiciary" address, Chief Justice Thomas J. Moran decried protracted appeals of the death penalty and blamed them on inexperience on the part of trial lawyers.

September 10: Gov. Thompson refused to delay the execution or grant clemency.

September 12, 12:12 a.m.: Walker was declared dead.

Contributing material to this summary was Peggy Boyer, Statehouse bureau chief for Sangamon State University's WSSU-FM, the anchor station of the Illinois Public Radio Network.

October 1990/Illinois Issues/27


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