Q&A Interview                                                          

An interview with Terry Madsen

State could take steps to streamline
death penalty appeals process

By EMILY WILKERSON

It's been nearly 20 years since the death penalty was reinstated in Illinois. But with an appeals process that can take more than a decade, the state has executed only a handful of the more than 150 inmates on Death Row.

Some Republican lawmakers, believing the process takes too long, have introduced legislation to reduce the amount of time from conviction to execution.

Bureau County Judge Terry Madsen, the former chief of the criminal appeals division in the Illinois attorney general's office, believes the state could take some steps to streamline the process. But, in an interview with Illinois Issues, Madsen also said the state must act carefully when carrying out its most serious sanction.

Q. How long does it take to litigate a death penalty case in Illinois from conviction to execution?

A. I have seen statistics nationwide that run about eight to 11 years for an execution. In Illinois, it's been longer than that for the early cases, but I believe that time will start to shorten now that they've started to execute.

There was, several years ago, an ad hoc committee the Supreme Court formed that I served on to review the length of time it takes in capital cases and try to figure out how to cut back. That committee made some recommendations, and some of those have since been followed.

The concern of the committee was to have better qualified counsel involved at the state review level. It seemed that the state post-conviction stage was really where the death penalty cases were getting bogged down.

We thought if we could increase the quality of counsel at that stage — and not just the quality of counsel but the resources available to them — that we might be able to present the inmate's best position at the earliest possible time.

Q. Why does the appeals process take so long in death penalty cases?

A. Part of the problem with the delay, particularly in death penalty cases, is the sequential nature of the appeals process. You take one step at a time. And I've always felt there are some steps that could be going on at the same time.

Q. How does that compare to other criminal cases that are going through the appeals process?

A. There's an interesting twist to this because people say, "It takes so long to execute somebody." But up until a year or so ago, [convicted murderer] William Heirens [who is serving a life sentence] still had litigation pending challenging his conviction. And he was convicted in 1947. That's the thing about capital litigation. Eventually, one way or the other, one side prevails. But with life sentences, litigation can go on and on.

Q. So, I guess the goal is to reach a balance between carrying out the punishment swiftly and ensuring the defendant's rights.

A. There's a very fine line that you walk between the goal of swift delivery of justice and the protection that you have to have when you go about the business of taking the life of another — that you don't make a mistake.

People have said, "Why did it take so long in the [John Wayne] Gacy case to execute him?" It's important that it did take so long, because what we're willing to do for someone like John Gacy [who was convicted of killing 33 young men and boys] holds the line for all of us. If we're not willing to do that for him, some day what won't we be willing to do for someone else?

Q. Do you believe the death penalty deters people from committing murder?

A. There's a very minimal deterrent effect of the death penalty. I don't believe that we have the death penalty to deter murderers. Most murders are committed within 25 feet, by someone you know. And normally the circumstance doesn't qualify it for the death penalty, and it's not committed by people who are thinking what's going to happen to them.

I think it comes down to the fact that as a society, we haven't reached a point where we don't want to exact revenge for certain acts. As a society we say to some people that what happened to you is so egregious that we're going to exact this penalty.

It's something I've said many times: Wouldn't it be nice if we reached a point when we didn't need it. And I've also sat many nights at my kitchen table, looking at pictures and reading descriptions of crimes and said, "Boy, if this happened to my little girl, I would want to find justice. What would I think would be the appropriate justice?" And the answers that I reached when I try and answer those questions allowed me to continue to work on capital cases.

I tell you, one kind of strange effect hit me about the impact of all of this procedure when Charles Walker was executed. The death certificate came back to me, and it listed the cause of death as homicide — legal. And that brings home what it is we're doing, and how important it is that we not rush into things but that we do it deliberately if we're going to do it. *

Emily Wilkerson is a Statehouse reporter for Copley News Service.