By GARY DELSOHN
A graduate student in the Public Affairs Reporting Program at Sangamon State University, Delsohn edited a weekly newspaper in Colorado, the Del None Prospector, after graduating from Southern Illinois University with a bachelor's degree in journalism. Hammering out a new Illinois law

Capital punishment

'Few issues stir public passions and individual soul-searching as much as capital punishment." In their rush to revive the death penalty, Illinois lawmakers are reacting to public opinion and facing limitations from the courts and a vocal opposition

THE LAST state execution in Illinois took place August 24, 1962 when cop killer James Duke was electrocuted in the basement of the Cook County Jail. The deep and abiding doubts about the morality of capital punishment can be seen in the recent statement of Warden Jack Johnson, the man who pulled the switch in Duke's electrocution. Johnson said, "I had a definite feeling it was wrong. There was a feeling of guilt. But I rationalized it. I said, 'Okay, society, this is what you wanted and I gave it to you. It must be right."'

Illinois Administrative Director of Courts Roy O. Gulley, a man who says he has "no real strong feelings about capital punishment either way," witnessed an execution when, as a young man fresh out of law school in 1951 he was chosen by the late Gov. Adlai E. Stevenson to be one of the six state witnesses required by law. "I stood there in complete terror, with my eyes closed," Gulley said. "I went away thinking it was unbelievably cruel." Opponents of capital punishment claim those in favor of it would feel differently if forced to witness the grisly spectacle of a human being convulsing in an electric chair as waves of electricity pulsed through the body, burning the life away. Rep. Anne Wilier (D., LaGrange), realizing this reluctance to witness execution, offered an amendment to a proposed death penalty bill (House Bill 3204) which nearly passed during the closing moments of the veto session of the 79th General Assembly. Willer's amendment would have required state witnesses to executions to be drawn by lottery from the legislature. The amendment failed miserably.

Few issues stir public passions and individual soul-searching as much as capital punishment. Legislative debate and public hearings sometimes become forums for scriptural exhortations, libertarian denunciations, legal analyses and a variety of emotional outbursts. There is no doubt, however, that the public, like its lawmakers, is firmly in favor of the death penalty as the best way to deal with murderers. Yet, vocal opponents claim murder by the state is no less perverse or senseless than murder by individuals. With last summer's U.S. Supreme Court ruling (Gregg v. Georgia) upholding capital punishment within certain strict guidelines, Illinois, like the rest of the states, is rushing to revive the death penalty. The sensationally publicized case of Utah killer Gary Gilmore, illustrating that state's reluctance to carry out the ruling it imposed, brought the issue to the forefront of public attention. Yet, there are profound and persistent questions in the capital punishment debate that have gone unanswered for centuries as civilized societies have sought ways to protect themselves and punish criminals. Against this backdrop, it is only a matter of time before an Illinois governor signs the death penalty into law.

"The clamor is there," cried Rep. Roscoe Cunningham, (R., Lawrenceville), "for us to pass capital punishment. Public opinion is behind us on this. We are in a strong box." Cunningham's remarks, made during a hearing of the House Judiciary II Committee last session, underscore lawmakers' intentions to bring the death penalty back to Illinois. Our state's last capital punishment law was ruled unconstitutional by the Illinois Supreme Court in November 1975 in People v. Cunningham on the grounds that creation of a three-judge review panel called for in the law was an improper usurpation of the powers of the judicial branch of state government. By creating the "court," the legislature overstepped its authority, the Supreme Court ruled.

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'There will be few executions; we all know that. But somebody's going to have to pay for murder with his life to set an example'

Although even the staunchest proponents admit they cannot empirically prove that capital punishment is a deterrent to murder, or that it accomplishes anything more than quenching society's thirst for revenge, Illinois lawmakers, with the support of their constituencies, are determined to pass a capital punishment measure. House Judiciary Chairman Harold Katz, (D., Glencoe), is fighting a losing battle when he says, "The clamor is not enough. If we react to clamor so will the judges." Although one might imagine the death penalty to be one issue where politics would defer to considerations of justice, deterrence, and morality, the fact that "the people of Illinois have spoken" is paramount, claims death bill sponsor Roman J. Kosinski (D., Chicago). In fact, Kosinski and others realize there is quite a bit of political stock to be gained in sponsoring and supporting death penalty legislation. "We got 67 co-sponsors on this thing without even trying," he said.

Kosinski was the primary sponsor and force behind a measure calling for restoration of capital punishment that passed the House during the veto session last fall. The bill passed by an overwhelming 122-45 vote in the House but stalled in the Senate when its Rules Committee refused to consider the bill on an emergency basis. For the 80th General Assembly, Kosinski has filed House Bill 10,* almost identical to his last effort. His primary co-sponsor on the failed bill was George E. Sangmeister (D., Mokena), now senator, who said he will introduce a companion bill in the Senate. Kosinski said, "We will be going at this thing from both sides next time. It will be my number one priority." Hardly anyone thinks such a measure will fail to be passed and signed by Gov. James Thompson this session.

Illinois' 'defendant oriented bill'
Kosinski's bills were modeled after the statute upheld July 2, 1976, in the U.S. Supreme Court's Gregg v. Georgia ruling. The statute calls for a mandatory death sentence for certain categories of murder, provided none of a list of mitigating circumstances are determined to have been present at the time of the offense. Because, as Kosinski has said, "Ours is a defendant-oriented bill," defendants can bypass traditional rules of evidence and introduce any information pertinent to consideration of the death sentence. H.B. 10 calls for death for murdering a policeman, fireman, judge or state's attorney who was on duty, personnel of the Department of Corrections, or persons inside correctional facilities with the knowledge of officials — this presumably would include visitors and hostages in prisoner uprisings. Also included are murders committed in the act of arson, rape, burglary, indecent liberties with a child and hijackings. Persons convicted of multiple murders would also be subject to execution, as would persons who murdered on "contract" and persons convicted of murder taking place in public places and endangering the lives of others.

To satisfy the U.S. Supreme Court's ruling in Gregg v. Georgia, the presence of one or more mitigating factors would preclude the death penalty. In its famous Furman v. Georgia decision of 1972, the Supreme Court invalidated all existing capital punishment statutes on grounds they were indiscriminate and failed to consider mitigating circumstances. Under Kosinski's bill it would be the defendant's responsibility to claim such circumstances and the burden of proof would be on the state to show, "beyond a reasonable doubt," that no such factors existed. The same standard of proof would apply to the state's responsibility to show the presence of one or more of the aggravating circumstances, that is, one or more of the types of murders listed above.

A defendant convicted of murder but spared, due to mitigating circumstances, would be sentenced to an indeterminate term of not less than 14 years in a state prison. The mitigating factors in Kosinski's bill that would void the death penalty are: (1) a defendant found to have no prior criminal background or record; (2) a defendant under age 18 at the time of the offense; (3) a defendant "under extreme mental or emotional disturbance," although not such as to constitute a defense to prosecution; (4) a defendant whose victim was a participant in the criminal act; (5) a defendant acting under threat of death or great bodily harm; and (6) a defendant not present at the commission of the murder, except in contract murders. Discussing the third situation of emotional disturbance, Sangmeister admitted in committee that "I don't like this, it will lead to all kinds of horrendous trials with psychiatrists, but we kept it in as a result of testimony we received in our subcommittee hearings."

A six-year moratorium on executions?
Any death penalty bill, in addition to the expected questions involving purpose and morality, falls prey to criticism for the seemingly arbitrary selection of aggravating and mitigating circumstances it includes, and opponents usually hammer away at these decisions in public hearings. Opponents of capital punishment say: "What makes the life of a policeman or fireman worth any more than the life of another individual? If we are asking for execution for murdering state's attorneys and judges, then what about the witnesses? They need protection at least as much." Rep. Robert E, Mann (D., Chicago) alluding to these questions, asked, "What is the rush to put the state back in the business of killing?" He suggested a six-year moratorium on executions until such time that these problems can be worked out, Proponents answer by pointing to the 15 years since the last Illinois execution and cite the tremendous amount of work and time that went into Kosinski's bill. Three public and well publicized subcommittee hearings last summer in

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Wheaton, Joliet and Chicago produced reams of testimony, and supporters questioned the need to procrastinate any longer. A few days after the veto session ended, Mann said he would introduce a resolution this session calling for a joint committee "to produce a nonpolitical examination, which could hear persons from both sides of the issue, in a non-emotional, deliberative fashion." Regardless of the fate of Mann's proposal or eventual findings or recommendations of such a committee, he said, "The chances are very good that we are going to get a death' penalty law very soon."

There are some alternatives to imposing a death penalty. Some opponents point to a recently released report by a Judiciary II Subcommittee on Adult Corrections, chaired by Rep. L. Michael Getty (D., Dolton). The subcommittee's recommendation for "flat-time," or determinate sentencing, would shift the emphasis of incarceration from the present idea of rehabilitation to punishment. (See Illinois Issues series on these proposals, Jan.-March, 1976). Although it would still be a goal of the corrections system to rehabilitate prisoners who wish to be, the subcommittee called the present system of varied sentences, "Capricious ... an obstacle to rehabilitation . . . without significant results." The idea of mandatory life imprisonment for murder conviction is also discussed, although capital punishment advocates ask what will then prevent a prisoner "with nothing to lose" from killing guards or other inmates. Cedric Russell, a spokesman for the Illinois Coalition against the Death Penalty, said lawmakers want the death penalty because they lack answers or solutions to the complex problems of crime in society. Russell told a Springfield press conference last November that the death penalty is discriminatory and implies not justice, but "just-us." One lawmaker who said he favors the death penalty voted against it and said, "It might lull people into believing that we're making things all right. It takes attention from the social problems that lead to murder."

Dual trial system for capital cases
The legislation that eventually becomes law will most likely employ a "bifurcated" or dual trial system, whereby one jury determines innocence or guilt and another convenes to consider the applicability of the death sentence. A unanimous recommendation of death would be necessary from the jury for the judge to sentence the defendant to death. The judge would review the entire proceeding and decide whether to honor the jury's recommendation. The House staff member who drafted the bill said it has not yet been determined whether the judge can ignore the jury's recommendation of mercy and sentence the defendant to death. In a further effort to meet the Supreme Court's standards as they apply to reviewing procedures, all death penalty convictions would automatically go to the Illinois Supreme Court for review. Any death sentence found to be improper would lead to an indeterminate sentence of not less than 14 years. Of course, neither Kosinski's bill nor any other introduced would be retroactive, but would apply only to defendants sentenced to death after the law took effect.

Although the U.S. Supreme Court has sanctioned capital punishment, the picture is becoming increasingly muddled as events develop. The U.S. high court recently overturned the capital conviction of a Georgia man on the grounds that a potential juror was eliminated because he expressed reservations about capital punishment. Because many persons share such reservations, the court said, elimination of a potential juror without sufficient questioning to determine if those reservations would prejudice him or her in the case would lead to overturned convictions. An interesting sidelight to that ruling is Cook County State's Atty. Bernard Carey's opposition to capital punishment. Carey, who is the number one legal officer in a county that has as much violent crime as any in the nation, opposes capital punishment because juries are so reluctant to recommend it that the legal system is "corroded" by it, according to Rep. Katz. Thus, capital punishment is a legal quicksand for the courts and lawmakers. Statistics can be found to buttress almost any argument for or against capital punishment, and even the U.S. Supreme Court has called the case for and against deterrence "simply inconclusive." Despite this and the myriad moral and religious considerations of the issue, legislators are reacting to what they perceive to be a "clamor for capital punishment." Gov. Thompson has said he will sign death penalty legislation meeting the Supreme Court's standards. In his position paper on criminal justice, however, Thompson said, "If punishment does not swiftly follow an offense its impact is diminished. The deterrent value of a criminal penalty depends upon swift and certain adjudication." The absolute finality of capital punishment makes mistakes irreparable, and the slowness of the legal system in such cases detracts from the force of any potential deterrent value. In fact, because the Illinois Constitution mandates a Supreme Court review of all death sentences (Article VI, section 4b), speedy disposition of such cases is impossible.

The larger questions of deterrence and rehabilitation behind capital punishment will not be answered when a bill is signed into law to revive executions of the most vicious criminals. For the law to have even the slightest trace of deterrence, it must be enforced. The Gilmore case in Utah has shown the reluctance to carry out what capital punishment laws mandate — state executions. Perhaps underlining this reluctance is Sangmeister's comment, "I'm not eager to see anyone strapped into a chair and have the life burned out of him. I'm not a sadist. There will be few executions; we all know that. But somebody's going to have to pay for murder with his life to set an example."

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