When the 91st General Assembly convenes in a few days, a host of familiar issues will await lawmakers: managed care reform, factory hog farms, highway and mass transit needs, and the annual task of fashioning a state budget, to name a few.
Legislators also may feel obliged to take a new look at an ancient issue — capital punishment — in the wake of a thought-provoking dissent by Illinois Supreme Court Justice Moses W. Harrison II to a majority decision that upheld the death sentence for a Canton man in a double murder case.
In blunt language, Harrison warned that "inevitably ... innocent persons are going to be sentenced to death and executed in Illinois" because of human fallibility and flaws in administering the state's death penalty law.
Harrison's point was underscored a few days later at a Northwestern University national conference on wrongful capital convictions. The conference heard personal accounts from Death Row inmates whose convictions were later overturned, including nine in Illinois. In all, 74 such "mistakes" have been made nationwide since the U.S. Supreme Court cleared the way for states to reimpose capital punishment in the early 1970s.
Debate over the propriety of the death penalty is nothing new in Illinois, and it has taken some interesting twists.
| Now, an Illinois Supreme Court justice insists that the question of innocent victims of the state executioner is no longer hypothetical. |
Framers of the 1970 Illinois Constitution, for example, submitted a proposed ban on capital punishment to voters separately, as a compromise between those wanting to outlaw the death penalty and those who feared writing a ban into the charter would harm its chances of ratification. Voters rejected the separate proposal by a wide margin, and public opinion polls suggest support for the death penalty remains just as strong today.
The issue also strained the usual collegiality of the state Supreme Court after the legislature in 1977 enacted the current death penalty statute. The justices upheld the law, 4-3, in 1979, but one of its four supporters retired a year later. His replacement, Justice Seymour Simon, thought the law unconstitutional, resulting in an unusual situation in which a majority of the seven-member court was on record against the statute's validity.
For three years, Simon pointed out the anomaly every time the court upheld a death sentence, finally prompting the three original dissenters to tell him in a 1984 case to stop "needlessly cluttering up opinions" with dissents chiding the trio for abiding by the majority ruling in the earlier decision.
In the years since, death penalty foes have been steadfast but unsuccessful in convincing lawmakers to repeal the law, or at the least impose a moratorium on sending more people to Death Row, home to 156 men and three women at this writing.
Typically, the debate has focused on philosophical issues. Is the death sentence fitting punishment for coldblooded murder, or a barbaric descent to the defendant's level? Does capital punishment violate basic human rights, or does society have a greater right to defend itself from vicious predators? Does it deter would-be killers? Is it less humane, or more costly, than life imprisonment? Are death sentences imposed unfairly or discriminatorily, or only meted out to those who deserve what they get because of their criminal deeds?
At times the list would include, as just another abstract proposition: Might innocent persons be sentenced to death? More frequently, however, the discussion would come down to a simple judgment: Did John Wayne Gacy (or any other embodiment of evil you might choose) deserve to die for what he did?
Now, Harrison insists, the question of innocent victims of the state executioner is no longer just a hypothetical. Nine flesh-and-blood individuals, men with names and families, have been sentenced to die here, only to later be absolved. There are a host of explanations for how that can have happened — slipshod murder investigations, overzealous prosecutors, second-rate defense attorneys, suspect testimony from jailhouse snitches, juries offended by the horror of the crime. The bottom line is clear: Despite all the safeguards built into the criminal justice system,
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it's not perfect here in Illinois or anywhere else, and the inescapable conclusion is that someday Illinois will put to death an innocent person.
"It is no answer to say that we're doing the best we can." Harrison wrote. "If this is the best our state can do, we have no business sending people to their deaths. ... When a system is as prone to error as ours is, we should not be making irrevocable decisions about any human life."
The nine who "dodged the executioner" here, Harrison added, did so only because of luck and the dedication of attorneys, family members, reporters, and volunteers who rallied to their cause. "They survived despite the criminal justice system, not because of it. ... Left to the devices of the court system, they would probably have all ended up dead at the hands of the state." he wrote. "One must wonder how many others have not been so fortunate."
| Is being able to put to death the John Wayn Gacys of the world worth the price of executing someone no more guilty than his victims? |
Strong advocates of the death penalty shrug that question off, reasoning it's a small price to pay for what they see as fitting punishment and a strong deterrent.
Sending an innocent person to Death Row "shouldn't happen, but the system isn't perfect," Senate President James "Pate" Philip, a Wood Dale Republican, told the Chicago Tribune. "We make mistakes. There are a lot more of those people who have killed people ... out in the state today that should have had the death penalty but never were convicted because of some kind of technicality."
Others, however, might be moved to a bit more soul-searching, pondering a fundamental question: Is being able to put to death the John Wayne Gacys of the world worth the price of executing someone no more guilty than any of his victims? ž
Charles N. Wheeler III is director of the Public Affairs Reporting program at the University of Illinois at Springfield.
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