Finally, to ensure that the capital system is something other than an endless maze for survivors, we recommended guaranteed sentences of natural life when death is not imposed in eligible cases. In addition, we outlined reforms aimed at expediting the post-conviction and clemency processes.
Our recommendations were greeted respectfully, although hardly with universal acclaim. The major newspapers endorsed most of what we had proposed, as did the state bar association. The state prosecutors’ organization, on the other hand, embraced many less far-reaching items, but dug in its heels on more fundamental reforms such as videotaping interrogations or creating a statewide review commission. Nonetheless, by appearances, there seemed to be substantial momentum for reform. All the major players—the prosecutors, the papers, even the two candidates vying to succeed Governor Ryan—supported significant changes in the capital system.
By the end of the year, none had been enacted. This was owing in part to political wrangling, but much more to the chronic timidity of politicians in taking positions that can later be labeled soft on crime. The Chair of the Illinois Senate Judiciary Committee, Kirk Dillard, eventually sponsored a legislative package produced by the Governor’s staff. But the day our recommendations were issued, Dillard predicted a quick death for one of our central proposals—to reduce the number of factors for death eligibility—saying it might be “headed straight for the trash bin” because it ran contrary to the preferred political posture of legislators of both parties to expand, rather than reduce, the scope of criminal laws.
Dillard’s crystal ball proved accurate. In June, I testified before a subcommittee of the Illinois Senate Judiciary Committee that was considering that proposal. Looking at his colleagues, Senator John Cullerton of Chicago pointed out to me that each of them had already run for higher office. Curbing the death penalty, he said, would give potent ammunition to future political opponents. I tried to invoke the example of Governor Ryan’s courage, but the fact that the Governor didn’t have enough support to run for reelection hardly helped my case. Cullerton, like Dillard, was merely brave enough to state the truth. In December, despite the Commission’s recommendation to reduce the number of death eligibility factors, the Illinois General Assembly overrode Governor Ryan’s veto and added a twenty-first factor for murder in the course of terrorism.
Nonetheless, the legislature’s failure to act on reform only deepened Governor Ryan’s predicament. In March, at a conference on the death penalty in Oregon, Ryan had remarked that he might consider commuting all death sentences in Illinois. In the wake of the Commission’s report, lawyers for all but a few of the inmates on death row used our recommendations as the basis to petition the Governor to exercise his constitutional clemency powers to reduce their sentences. Throughout the fall, victims and prosecutors appeared in public hearings before the Prisoner Review Board, which considers clemency requests in the first instance. The survivors relived the gruesome facts of many of these crimes and the anguish they’d experienced, gaining widespread and sympathetic coverage. Death penalty opponents responded with a number of mediagenic events of their own, including importing stars like Richard Dreyfuss and Danny Glover for a performance of The Exonerated, a play telling the true stories of a number of the wrongfully convicted, before an audience that included Governor Ryan.
In dealing with the clemency issue, the Governor received no help or cover from anyone else. No one—not the legislature, the prosecutors, the candidates, or even the Commission on which I served—offered George Ryan any alternatives. He had either to accept the results of a system everyone agreed needed to be fixed or to act by himself. The latter course was not especially appealing, because as the year moved to a close, legal proceedings began in federal court in the criminal racketeering case against Scott Fawell, George Ryan’s former chief of staff in the Secretary of State’s Office, and against the Governor’s campaign fund. In its pretrial filings, the U.S. Attorney’s Office made clear that there would be testimony that the Governor might have had some role in unsavory doings. For Ryan, facing the increasing prospect that he would be in front of a jury himself, locking arms with the most unpopular minority group imaginable—convicted first-degree murderers—was not an appealing course.
But the Governor had been emphatic, especially once the Commission report detailed the long-running problems in Illinois’ capital system, that he would address the cases that system had produced. Cynics claimed that in declaring the moratorium or reviewing the death row clemency petitions, Ryan was attempting to create a legacy that could compete in history books with the ignominy of the criminal conviction they saw as forthcoming. But this view of Ryan offers no explanation of other principled acts he took in this area, ones garnering him no special attention. For example, Governor Ryan twice vetoed bills that would have added new eligibility factors to the Illinois death penalty, because he regarded the statute as overly broad already.
I have no special insight into what drove George Ryan’s decisions. If the government’s five-year investigation of Ryan had any influence on his views about clemency, I suspect it was by providing a firsthand experience of how unfettered prosecutorial power essentially is. In my practice, I’ve seen federal grand jury investigations turn law-and-order conservatives into dues-paying members of the ACLU. It’s even conceivable that George Ryan wanted to do the right thing as Governor because he felt he’d done wrong things in the past. Certainly I think the Governor’s deep religious beliefs, which he refuses to wear on his sleeve, had a place here. Whatever the motives, though, George Ryan’s refusal to duck the clemency issue despite its perils to him personally was inspiring to me, as he often was.
Initially, the Governor had spoken about a blanket clemency for all on death row. When the public hearings began, he had back-pedaled, promising the victim families he would evaluate matters case by case. After seeing The Exonerated, he again began to wonder aloud about clemency for all. His vacillation infuriated many observers, but I had no trouble understanding why Ryan was wrestling so fitfully with the issue.
As the time for decision drew near, reporters and others asked my opinion about what the Governor should do. I had no comment for the record, but privately I was against blanket clemency. I favored reducing sentences to life without parole in the many cases infected by the problems outlined in the Commission report. My approach would have commuted, for example, those who had been death—sentenced for felony-murder, or whose convictions rested on jailhouse snitch or accomplice testimony, or whose confessions were not well corroborated. I would have made lifers out of most, but not all, on death row, hoping to show some deference to the popular will in favor of capital punishment. I feared that a blanket commutation might inspire a powerful backlash that would scuttle all hope for reform. As an attorney, I also worried that the reliability of the law as an institution could be brought into question when the work of many years by police, prosecutors, judges, and juries—as well as the implied promise to victims’ families—was overturned because of the beliefs of a single individual, no matter how well intentioned.
On the Friday before he left office, January 10, 2003, Governor Ryan pardoned four men on death row on grounds of innocence. Their cases had all come out of Chicago’s Area Two Violent Crimes station house in the 1980s, where evidence introduced in a police disciplinary hearing and an ensuing federal civil rights trial had been found to show that the commander, Jon Burge, had approved extracting confessions from suspects through systematic torture—electric shock to the genitals, placing typewriter covers over defendants’ heads to deprive them of oxygen, burnings, beatings, forced games of Russian roulette, and hanging suspects from handcuffs. In all four pardoned cases, the principal evidence against the defendant was a confession, which each man maintained Area Two officers had used torture to obtain. Aaron Patterson, a gang leader with a history of serious violence, had contended, since his first court appearance, that he had confessed only after twenty-five hours of physical abuse that included
beatings and placing a plastic bag over his face. At one point, he said he had found a paper clip, and on a bench where he’d briefly been left alone, etched a dated message reading, “I lied about murders / Police threatened me with / violence, slapped and / suffocated me with plastic.” The words were later found—and photographed—by an investigator from the Public Defender’s Office.
The Governor’s pardons brought to seventeen the total number of those sentenced to death in Illinois and later exonerated. But that still left the question of what to do with all the others on death row. After favoring broad but partial clemency, I’d gradually come to recognize the problems with that approach, especially as I began considering how it could be applied in given cases. Deciding on a reasoned basis who would live and who would die was, as ever, virtually impossible.
Surely, if there was a case to execute anyone, Henry Brisbon, the inmate I’d visited at Tamms, who is probably the most dangerous man in the Illinois prison system, would seem to stand at the top of the list. Yet in the days since Brisbon was first sentenced to death for stabbing an inmate, two prisoners who testified against him, the only eyewitnesses who’d seen Brisbon approach or assault the victim, had both recanted, providing affidavits stating that they lied in response to threats and promises from prosecutors. True, they are convicts, who might have many motives to change their stories—but the state had been willing to take their word at trial, even though both had initially claimed to know nothing about the murder. There was other evidence against Brisbon: his fingerprint was found beneath the tape on the handle of the knife that was probably the murder weapon, leaving little doubt that he was its manufacturer. Given this, I have no question that the evidence against Brisbon supported his conviction. But no one can possibly rest easy with an execution where the only eyewitnesses are jailhouse snitches whose stories have changed often and who now say prosecutors got the wrong man.
And yet, if you do not execute Henry Brisbon, who in good conscience can be executed? Again and again, the cases that seemed to present the most compelling facts favoring execution proved, under scrutiny, to have elements that raised second thoughts. Kenneth Allen murdered two police officers in 1979, but a portion of his brain had been removed in 1972. He has been in a mental institution for more than two decades. Latasha Pulliam and her boyfriend sexually abused a six-year-old girl with a shoe polish applicator and a hammer, and then strangled her. But Pulliam’s death sentence contrasts with the life sentence the boyfriend received; and there is evidence that Pulliam is retarded, which, if sustained, would prohibit her execution anyway. Andrew Johnson committed a gruesome armed robbery and stabbing to earn a death sentence, but his co-defendant, who stabbed another victim and hit a third with a fireplace tool, got forty years.
Frustrated by the impossibility of picking and choosing among cases on any principled basis, Governor Ryan has said he ultimately decided against “playing God.” On Saturday, January 11, at Northwestern’s Center for Wrongful Convictions, where Larry Marshall had spearheaded the legal fight that led to the exoneration of so many of those 17, George Ryan commuted the sentences of the 167 persons left on death row. He reduced 3 sentences to 40 years, bringing them into line with what co-defendants in the cases had received. The 164 others were commuted to life in prison without parole.
Given what faced him, I think George Ryan made an understandable choice, even though such men as Henry Brisbon and Hector Sanchez, the killer of Michelle Thompson, now will not die. Lost in the ensuing furor was the fact that in everyday terms nothing had changed for the 164 prisoners commuted to life. They were in the penitentiary the day before their commutation. They would be in the penitentiary the day after. And they would still be in the penitentiary the day they died.
In 1994, as his years on the U.S. Supreme Court were approaching an end, Justice Harry Blackmun expressed his frustrations with the dizzying and persistent inequities of a capital system that, in his view, had defied all the efforts he’d supported over the decades to rationalize it. “From this day forward, I no longer will tinker with the machinery of Death,” Justice Blackmun wrote, in a famous dissent. “The basic question—does the system accurately and consistently determine which defendents ‘deserve’ to die?—cannot be answered in the affirmative…”
In commuting all of Illinois’ standing death sentences, Governor Ryan quoted Justice Blackmun. He had reached the same point. But unlike Justice Blackmun, Governor Ryan had the one vote that counted.
The reaction to Governor Ryan’s commutations in many regards defied predictions. A number of prosecutors, police officers, and survivors expressed outrage, but the public mood was far calmer than I, for one, had anticipated. In February, the St. Louis Post-Dispatch, a newspaper that serves much of southern Illinois, published poll results showing that Illinoisans were essentially evenly divided about whether the former Governor had done the right thing. Although 55 percent of the poll respondents still favored the death penalty, only 29 percent said they did so “strongly.” Even more impressive to me, given the skittishness I’d encountered among legislators, was this result: 65 percent of those polled said they were not likely to vote against a representative who favored abolition. Clearly, recent history had had a formative impact on opinion in my state.
Furthermore, the fact that roughly half the state agreed with their former Governor suggested that many in Illinois were sympathetic to the argument George Ryan had made in granting clemency, namely, that he had been left with little choice because the legislature had failed to enact any kind of reform. Rather than prompting the backlash I feared, George Ryan’s clemencies end up spurring the Illinois General Assembly, now in control of a Democratic majority, at last to make changes in Illinois’ death penalty system. In March 2003, a bill to abolish the death penalty actually received a favorable vote from a House committee before dying on the House floor. Yet the withering away of that effort occurred only as both the Illinois House and the Senate passed reform legislation, embodying a number of measures rooted in the Commission’s proposals. One bill mandated videotaping interrogations in homicide cases. A second, broader reform measure sponsored by Senators Cullerton and Dillard, among others, passed both houses in late May 2003 and embodied many more of the Commission’s most prominent recommendations. The reform bill called for hearings prior to the testimony of in-custody informants in capital cases, pilot programs to test the new lineup procedures the Commission favored, easier access for defendants to DNA testing after trial, and limiting felony-murder to inherently violent felonies. The measure also established procedures that would bar capital punishment if a court found the conviction was based solely on the uncorroborated testimony of an informant, accomplice, or eyewitness. It provided for decertification of law enforcement officers who willfully lie in homicide cases, and established procedures for determining whether a defendant is mentally retarded, presumptively barring capital punishment for those with an IQ of 75 or less.
Naturally, I would have liked even more, especially a state commission to approve death penalty cases, but prosecutors continue to insist that such a measure would be unconstitutional. I was disappointed that the bill still left Illinois with 21 death-eligibility factors. And factual review of guilty verdicts in death cases would remain limited under the new legislation. Trial judges may state their reasons for disagreeing with a death verdict, but not to overturn it; the law, though, would give the Supreme Court the power to set aside any death sentence it deemed “fundamentally unjust.”
Nonetheless, taken as a whole, the measures would constitute important vindication for the work of the Commission and for Governor Ryan and would clearly enhance the quality of capital justice in Illinois. Early in May the new Governor, Rod Blagojevich, promised to sign the videotaping bill. Without making a final commitment, Governor Blagojevich also spoke favorably about the broader reform package when it passed at the end of the month.
Most remarkable to me was the altered political landscape. The omnibus reform bil
l passed the Illinois House in a vote of 117–0, and the Senate 56–3. Reform notwithstanding, Governor Blagojevich, who had run to succeed George Ryan supporting capital punishment, said, through a spokesman, that he had no intention of lifting the moratorium “anytime soon” and indicated that it might well remain in place throughout his term. Blagojevich has said there will be no executions until he is certain that the innocent can no longer be sent to death row and until there has been further review of “social inequities” that are part of the capital system. His remarks irked a few conservative legislators, but there was no widespread furor. For the time being, the lessons, the labor, and the turmoil of the last few years seem to have left Illinoisans content to see the death chamber continue to gather dust.
14
WRITING ABOUT THE DEATH PENALTY: REVERSIBLE ERRORS
WHEN MATT BETTENHAUSEN, the Deputy Governor, had first spoken to me about joining the Commission, I said there was one complication: I had already begun work on a novel with capital punishment as its theme. Thinking it through, neither Matt nor I could see why that would pose what lawyers would recognize as a conflict of interest. In the end, though, my commitment to myself was that I wouldn’t publish that book until the Commission had made its report to the Governor. I knew that the novel would bring questions from reporters about my views on capital punishment, and I was reluctant to offer any opinions while the Commission’s deliberations, which were confidential, were under way.
The book I was working on, Reversible Errors, was published in October 2002, six months after the Commission report was issued. I had always said I would never write a novel about Cruz and Hernandez. The experience was too loaded, and I didn’t want anyone to think I was exploiting a case I’d taken on for free. More important, it wasn’t what I think of as my kind of story. As I saw it then—and see it even today—Cruz and Hernandez is a tale of good guys and bad guys. On one side was the cadre of virtuous defense lawyers, supported by earnest journalists and honest cops, who passed these cases to one another like a torch over more than a decade, convinced of the innocence of these men and working for little or no compensation. On the other side were a number of prosecutors and police officers whose reluctance to admit their errors, for fear of the damage to their own self-esteem or ambitions, drove them to ever graver mistakes.