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MORATORIUM AND REFORM: ILLINOIS’S EFFORTS TO

MAKE THE DEATH PENALTY PROCESS “FAIR, JUST,

AND ACCURATE”

BARBARA J. HAYLER

This article provides an overview of recent efforts to reform the death penalty system and its

operation in Illinois. Three different stages of the reform process are examined: the Illinois

Supreme Court’s Special Committee on Capital Cases, which led to changes in supreme

court rules in 2001; Governor George Ryan’s Commission on Capital Punishment, which

studied the capital process from investigation through post-conviction appeals and submitted

eighty-five recommendations in 2002; and reform legislation adopted by the Illinois General

Assembly in 2003. The Governor’s Commission was charged with making recommenda-

tions to ensure that the application and administration of the death penalty in Illinois was

“just, fair and accurate.” Reflecting the concern with wrongful conviction that has driven

the reform movement in Illinois, changes implemented since 2000 have done more to

improve the accuracy of the trial process than the overall fairness of prosecutors’ decisions to

seek and impose the death penalty.

he death penalty came under increasing criticism in the 1990s as capital sen-

tences and executions peaked even as the violent-crime rate decreased (Death

Penalty Information Center, 2008). In Illinois, the debate was characterized by a ris-

ing level of concern over both the accuracy of the capital-trial process and the fair-

ness of decisions to seek and impose the death sentence. This article will describe the

process of reform of the capital-punishment system in Illinois, including changes in

required counsel qualifications and pretrial procedure imposed by the Illinois

Supreme Court and a series of recommendations for legislative reform put forward by

the Governor’s Commission on Capital Punishment. It will present information on

the implementation of these changes and identify areas where proposed reforms have

yet to be adopted.

Undergraduate journalism students at Northwestern University, working under

the direction of Professor David Protess, began investigating claims of wrongful con-

viction in the 1990s. They contributed to the exoneration in 1995 of Rolando Cruz

and Alejandro Hernandez, who were being retried on capital-murder charges and also

developed evidence that cleared death-row inmates Dennis Williams and Verneal

Jimerson (two of the “Ford Heights Four”) in 1996 (Warden, 2005). In 1997 the

American Bar Association called for a national moratorium on executions. The

Chicago Council of Lawyers called for a moratorium in Illinois, and petitioned the

Illinois Supreme Court to stop setting execution dates until a study could be complet-

ed and its recommendations considered. In 1998, in his dissent in

People v. Bull

(1998), Justice Moses Harrison II of the Illinois Supreme Court wrote:

THE JUSTICE SYSTEM JOURNAL, VOL. 29, NUMBER 3 (2008)

424 THE JUSTICE SYSTEM JOURNAL

Despite the courts’ efforts to fashion a death penalty scheme that is just, fair,

and reliable, the system is not working. . . . The result, inevitably, will be

that innocent persons are going to be sentenced to death and be executed

in Illinois. A sentencing scheme which permits such horrific and irrevoca-

ble results cannot meet the requirements of . . . the United States

Constitution . . . or . . . the Illinois Constitution (at 225, 228).

In February 1999, Northwestern University students obtained a confession that

exonerated Anthony Porter, a death-row inmate who had come within two days of

execution the previous year. Porter’s case brought the number of exonerated inmates

released from Illinois’s death row to ten (Warden, 2003). The Illinois General

Assembly also initiated the process of reforming the system in 1999 by adopting the

Capital Crimes Litigation Act (Public Act 91-589

), which created the Capital

Litigation Trust Fund and authorized the state to pay certain capital-case expenses for

both defense attorneys and prosecutors. Unless renewed, the Trust Fund authorization

would expire in 2004. (For Illinois Public Acts, see General Assembly Web page:

http://www.ilga.gov/legislation/ publicacts/default.asp.)

THE SPECIAL SUPREME COURT COMMITTEE ON CAPITAL CASES

Just a few weeks after Anthony Porter was exonerated, the Illinois Supreme Court

created the Special Supreme Court Committee on Capital Cases (“Special

Committee”). The seventeen-member Special Committee was chaired by Thomas R.

Fitzgerald, presiding judge of the Cook County Criminal Courts since 1989 and a

respected expert in criminal law. The remaining members, all judges, were chosen

equally from Cook County and the rest of Illinois. The Special Committee solicited

information and recommendations primarily from the legal community. It issued a

report in October 1999 in which it recommended specific changes that could be made

by the supreme court under its administrative and supervisory authority. Adoption of

these changes, the Special Committee said, would “vastly reduce the risk of trial error,

and fundamentally improve the capital trial process in Illinois” (Special Committee,

1999:2). The Special Committee held hearings and accepted comments during the

next several months, but it made only one substantive change to its original report,

recommending that Rule 3.8 of the Illinois Rules of Professional Conduct be amend-

ed to state explicitly that the duty of a prosecutor is “to seek justice, and not merely

to convict.”

The Special Committee identified three major sources of trial errors: prosecu-

tors and defense attorneys who were poorly prepared to try a capital case, often due

to general inexperience or limited involvement with serious felony cases; prosecutors

The two r

epor

ts of the Special Supr

eme Cour

t Committee on Capital Cases wer

e printed in limited numbers

and are not readily available online. The

Executive Summary of the 1999 report is available at http://www.

illacad.org/special_committee_report.html. The author will provide copies of both reports on request in Adobe

document for

m (pdf).

MORATORIUM AND REFORM 425

who did not comply fully with the disclosure requirements established in Brady v.

Maryland

(1963) and subsequent cases; and inadequate judicial supervision and con-

trol of the capital-trial process. The Special Committee transmitted its final report

to the Illinois Supreme Court in October 2000. The supreme court accepted all the

recommendations as drafted or with only minor editorial changes, and the new rules

were officially filed by a unanimous Illinois Supreme Court on March 1, 2001. (For

supreme court rules, see the Illinois courts Web page: http://www.state.il.us/court/

SupremeCourt/Rules.)

Improving the Quality of Attorneys. The Special Committee devoted more than

half its report to recommendations for improving the quality of attorneys who prepare

and try capital cases, noting, “No reform, rule, or procedure can substitute for compe-

tent attorneys in a capital case” (Special Committee, 1999:3). Its recommendations

were similar to those put forward in 1999 by the Illinois State Bar Association. The

Special Committee recommended the creation of a Capital Litigation Trial Bar (pro-

posed Supreme Court Rule 714), with both prosecutors and defense attorneys in cap-

ital cases required to be members. The only exceptions were the Illinois Attorney

General and elected state’s attorneys (county prosecutors).

Lead counsel would be required to have at least five years of criminal litigation

experience; to have tried at least eight felony trials, including two murder cases; and

to have specialized capital-case training or experience. The proposal also required

that two attorneys be appointed for indigent capital defendants once the prosecutor

provided notice of intent to seek the death penalty. The Special Committee conclud-

ed that imposing this requirement from the start would be “wasteful” of the county’s

resources and unnecessary in cases where the state eventually decided not to seek the

death penalty but made it clear that only qualified members of the Capital Litigation

Trial Bar should be assigned to or accept potential capital cases.

The Special Committee strongly agreed that this requirement must apply to

retained counsel. It dismissed concerns that the Capital Litigation Trial Bar require-

ment might interfere with a defendant’s right to be represented by counsel of choice,

noting that the right to retain counsel of choice is not absolute and that the right does

not require judges to allow defendants to retain unqualified counsel. The Special

Committee noted that the judiciary, and society as a whole, have an interest in the

“fair and just administration of capital punishment” that is as impor

tant as the defen

dant’

s right to counsel of choice (Special Committee, 2000:7).

The primar

y objection to these requirements was that some smaller counties

might not have enough cer

tified defense attorneys. Attorneys from the Office of the

State Appellate Defender (OSAD) wer

e, therefore, allowed to provide trial assistance

in capital cases, and private attor

neys from outside the county could be appointed as

defense counsel (see Burke, 2008). Some pr

osecutors argued that these standards

should apply only to defense attor

neys, as they were intended to prevent ineffective

assistance of counsel. The Special Committee (2000:11-12) disagr

eed, noting that

while prosecutors “generally perform in a fair and professional manner,” there were

426 THE JUSTICE SYSTEM JOURNAL

“too many preventable errors to ignore.” It expressed the belief that most instances of

“prosecutorial misconduct” were actually errors due to inexperience or lack of training

and that they would be reduced as the recommended changes were implemented.

Discovery and Disclosure. The Special Committee (1999:34) recommended sever-

al procedural changes to encourage “more complete and effective disclosure” of excul-

patory or mitigating information. Changes in Supreme Court Rule 416 would create

an “affirmative duty” to seek out

Brady material, material known to the police or

prosecution and potentially helpful to the defendant, which must be disclosed to the

defense, as first established in

Brady v. Maryland (1963). Prosecutors would be

required to consult with each person involved in investigating or preparing a capital

case and to file a certificate of compliance with the court and opposing counsel at

least fourteen days before trial. The Special Committee (1999:37) also recommend-

ed that prosecutors be required to “specifically identify by description or otherwise”

any

Brady material disclosed, so that the defense would be less likely to be over-

whelmed by the sheer volume of discovery materials. It believed these changes would

impose only “modest burdens” on prosecutors and would “greatly reduce” the possi-

bility that

Brady materials would not be disclosed.

Of all the Special Committee’s recommendations, these proposed changes

prompted the “most divergent and heated comments” (Special Committee, 2000:40),

with sharp divisions between prosecution and defense attorneys. Prosecutors argued

that a capital-case investigation might involve as many as one hundred law enforce-

ment officers alone and that the lead prosecutor could not be expected to consult per-

sonally with all of them. Acknowledging that its proposals imposed additional bur-

dens on prosecutors, the Special Committee (2000:42) concluded that the burdens

were “less onerous than suggested by some” and the possible benefits “far greater than

those with reservations . . . would concede.” It rejected an alternative “open file” pol-

icy proposed by prosecutors, under which materials favorable to the defense might not

be disclosed if they were not in the prosecutor’s file. The failure of police to provide

all relevant material to the prosecutor had already emerged as a problem in Chicago’s

“street file” cases (Bogira, 2005; see also

Palmer v. City of Chicago, 1986, and Jones v.

City of Chicago,

1988). The Special Committee modified its disclosure proposal to

require only a “good faith” effort by prosecutors to identify exculpatory information,

but left the other r

equir

ements intact. In its final r

epor

t, the Special Committee

(2000:85) “r

espectfully submits that to the extent the pr

oposed r

ule r

equires addition-

al ef

fort on the part of prosecutors, it is effort that is necessary to prevent substantial

discover

y errors.” It also confirmed that these proposed rule changes should apply in

all felony cases, not just capital cases (Special Committee, 2000:63, n. 55).

The Special Committee also r

ecommended that trial judges be allowed to

appr

ove discovery depositions of prosecution witnesses “upon a showing of good

cause” (pr

oposed additions to Rule 416), that a standardized discovery process for

DNA evidence befor

e and after trial be established (proposed Rule 417), and that all

discovery rules apply to the capital-sentencing hearing as well as the trial itself (pro-

MORATORIUM AND REFORM 427

posed Rule 411). The most controversial of these proposals was the one to allow the

deposition of prosecution witnesses. The Special Committee (2000: 66) emphasized

the need to improve the reliability and accuracy of capital trials and sentencing pro-

cedures, taking the position that pretrial depositions would provide better and more

complete access to information and “substantially improve the truth seeking function

of capital trials.”

Decision to Seek the Death Penalty. Illinois prosecutors have great discretion in

deciding whether to seek the death penalty. Prosecutors could wait until after the

trial verdict to announce that decision; in

People v. Gaines (1981) and People v. Brown

(1996), the Illinois Supreme Court ruled that due process was satisfied by pretrial

notice that capital punishment might be sought (see Bienen, 1998). The Special

Committee (1999:47-48) recommended that notice be given well before the trial

began, resulting in “more efficient” use of capital-case resources and “fairer proceed-

ings for the defendant.” Proposed Rule 416 required the prosecution to give notice

within 120 days of arraignment and to specify the eligibility factors that would be

alleged. If the prosecution failed to give timely notice, the trial judge was required to

treat the case as one in which the death penalty would be sought, triggering all capi-

tal-case requirements. Some defense attorneys were concerned that prosecutors

might use the new rule to justify routinely waiting the full l20 days to announce their

intentions, depriving capital defendants of the benefit of other reforms during the

early months of the case. The Special Committee expressed confidence that prose-

cutors could—and would—announce this decision before the deadline in most cases.

The Special Committee recommended that a case management conference be

held during this same period to confirm attorney qualifications and establish a sched-

ule for discovery and other pretrial activities. Case management conferences would

help “in focusing the attention of counsel on their pretrial duties . . . well in advance

of trial” (Special Committee, 1999:55). The Special Committee recommended spe-

cialized training for all judges who might hear capital cases (Proposed Rule 43).

The Special Committee also gathered comments and information on a number

of proposals that could not be implemented directly by the Supreme Court, including

reducing the number of aggravating factors that made cases eligible to be capital

cases. It refused to support a “residual doubt” standard that would prohibit imposi-

tion of the death penalty if jur

ors had even a “lingering uncer

tainty” about facts in

the case. However

, members agr

eed that “the death penalty should be imposed only

when the fact finder is convinced to a moral cer

tainty of the defendant’s guilt”

(Special Committee, 2000:101).

GOVERNOR RYAN’S MORATORIUM AND THE COMMISSION ON

CAPITAL PUNISHMENT

In January 2000, Illinois governor George Ryan declared an open-ended moratorium

on executions in Illinois, the first full moratorium on executions in the United States.

Governor Ryan stated that while he still believed the death penalty was a proper pun-

428 THE JUSTICE SYSTEM JOURNAL

ishment for some crimes, he was putting the moratorium in place because he had

“grave concerns about our state’s shameful record of convicting innocent people”

(“Governor Ryan Declares,” 2000). He added, “Until I can be sure that everyone sen-

tenced to death in Illinois is truly guilty, until I can be sure with moral certainty that

no innocent man or woman is facing a lethal injection, no one will meet that fate.”

At the same time he announced his intent to create a Governor’s Commission on

Capital Punishment (“the Governor’s Commission”) to study the problem and make

recommendations. The moratorium on executions remained in place through the

remainder of Ryan’s term as governor.

On March 4, 2000, Governor Ryan announced the creation of that commission.

Noting that thirteen death-row inmates had by then been exonerated and released

from prison, Ryan said it was time to conduct a “thorough review of the death penal-

ty process” (“Governor Ryan Names Judge McGarr,” 2000). As specified in Ryan’s

Executive Order, the Governor’s Commission was charged with determining why the

capital-punishment process had failed in Illinois, resulting in the wrongful conviction

of innocent people; considering how to provide safeguards and make improvements

throughout the process; reviewing recommendations made by other bodies studying

these problems; and making recommendations to ensure that “the application and

administration of the death penalty in Illinois is just, fair and accurate” (Governor’s

Commission, 2000:1).

The governor named retired federal judge Frank McGarr to head the fourteen-

member Governor’s Commission. Its cochairs were former U.S. senator Paul Simon

and Thomas Sullivan, a U.S. attorney under President Jimmy Carter and a senior

partner at Jenner & Block with a long record of bar-association activities on behalf of

criminal defendants. Other members included six current or former prosecutors and

three attorneys active in criminal defense, including the state appellate defender.

(For information on all members, see “Governor Ryan Names,” 2000.) The

Governor’s Commission was different from the Special Supreme Court Committee in

several ways. It had a broader mandate to study all aspects of capital punishment; it

reported directly to the governor, who could move its recommendations into the leg-

islative arena; and it had a budget that would allow it to conduct its own studies. (All

Governor’s Commission documents are available at http://www.idoc.state.il.us/ccp/

ccp/r

epor

ts/index.html.)

Investigations and Police Pr

ocedur

. The Gover

nor

’

s Commission began by

addr

essing investigative problems that had been dramatically underscored in the

exonerations of the For

d Heights Four (Protess and Warden, 1998), Anthony Porter

arden, 2005), and capital defendants Rolando Cruz and Alejandro Hernandez

(Frisbie and Gar

rett, 1998). Its recommendations included videotaping questioning

of suspects and key witnesses, conducting double-blind serial-lineup pr

ocedures, and

eating an independent state forensic laboratory. The Governor’s Commission pre-

sented a total of twenty-six r

ecommendations on investigations and police procedure,

almost one-third of the report’s total recommendations

MORATORIUM AND REFORM 429

Capital-Punishment Statute. When Illinois adopted its current capital-punishment

statute in 1977, after the Supreme Court’s rulings in

Furman v. Georgia (1972) and

Gregg v. Georgia (1976), it identified seven factors in aggravation that could make a

murder eligible for the death penalty. The Governor’s Commission called these “eli-

gibility factors.” By 2001, there were twenty eligibility factors. A small number

accounted for most capital cases; half of the factors had not been used in a single cap-

ital prosecution. The Governor’s Commission (2002:67) unanimously condemned

this statutory expansion as “unwise.” Studies by James Liebman and his colleagues at

Columbia University have reached similar conclusions: the wider the range of eligi-

bility factors, the greater the opportunity for sentencing disparity and disproportion

(Liebman, 2002; Liebman et al., 2002). However, the Governor’s Commission was

divided over which eligibility factors to eliminate, and by 2008 the Illinois General

Assembly had yet to eliminate any of them.

Decision to Seek the Death Penalty. In addition to supporting the Illinois Supreme

Court’s time limits on the decision to seek or decline the death penalty, the

Governor’s Commission recommended state standards to increase the consistency of

those decisions. Commission members unanimously supported voluntary standards to

guide individual state’s attorneys. A majority also supported a stronger recommenda-

tion for mandatory standards enforced by a state review and approval process.

Trial Lawyers and Judges. The Governor’s Commission supported the Illinois

Supreme Court’s rules that created the Capital Litigation Trial Bar and required two

defense attorneys in capital cases. It recommended that training for lawyers and

judges specifically address trial problems that had been shown to result in wrongful

convictions and urged the Illinois Supreme Court to establish a certification process

for judges as well as attorneys. The Governor’s Commission also reminded judges of

their obligation under Supreme Court Rule 63 to report violations of the Rules of

Professional Conduct by either prosecutors or defense attorneys. A study of approxi-

mately 250 death penalty cases under the Illinois post-

Gregg statute found that more

than 20 percent of the reversals resulted from inadequate representation by defense

lawyers and more than 25 percent from improper conduct by prosecutors (Pierce and

Radelet, 2002; see also Armstrong and Mills, 1999). A majority of commission mem-

bers believed that judicial reporting of “improper conduct” by either party would

allow it to be “fully investigated, and sanctioned wher

e appr

opriate” (Gover

nor

’s

Commission, 2002:191).

etrial Proceedings

. The Gover

nor’s Commission endorsed the new Illinois

Supr

eme Court rules on discovery, pretrial depositions, and case management confer-

ences, but it ur

ged the court to define “exculpatory evidence” more clearly and pro-

vided draft language for this purpose. It r

ecommended that prosecutors be required

to pr

ove that proposed testimony by an in-custody informant was reliable and to dis-

close any discussion with a witness about the benefits of testifying. The Gover

nor’s

Commission (2002:123) also r

ecommended that judges “carefully scrutinize” interro-

gations that misrepresent the strength of the case against a suspect, even though such

430 THE JUSTICE SYSTEM JOURNAL

tactics are lawful, to determine whether the interrogations “would be likely to induce

an involuntary or untrustworthy confession.”

Trial (“The Guilt-Innocence Phase”). The Governor’s Commission reviewed prob-

lems associated with eyewitness testimony, in-custody informants, and witness or

defendant statements that are summarized by the police rather than recorded or pre-

sented verbatim. It recommended cautionary instructions on the reliability of all three

types of evidence and concluded that expert testimony on the reliability of eyewitness-

es should be admitted. The Governor’s Commission recommended that perjury by a

police officer be grounds to revoke the officer’s state certification as a peace officer.

Demonstrably false testimony by at least one police officer had been part of the case

against Rolando Cruz, but a subsequent criminal prosecution had ended in jury acquit-

tals of the police officers and prosecutors on trial (Possley and Armstrong, 1999).

Sentencing. In 2000 Illinois’s death penalty law listed five mitigating factors for juries

to consider during the sentencing phase, although jurors could consider any relevant

information (720 ILCS Art. 5/9-1, available online at http://www.ilga.gov/legislation/

ilcs/ilcs.asp). The Governor’s Commission recommended adding two mitigating fac-

tors: a history of extreme emotional or physical abuse and a defendant’s reduced men-

tal capacity. The Governor’s Commission recommended that mentally retarded

defendants be excluded from the death penalty, a prohibition that the U.S. Supreme

Court subsequently held in Atkins v. Virginia (2002) was constitutionally required.

The Governor’s Commission (2000:58) also said that the death penalty should be

prohibited when a conviction was based entirely on the testimony of a single eyewit-

ness or accomplice, or on the “uncorroborated testimony of an in-custody informant

witness concerning the confession or admission of the defendant.”

The Governor’s Commission supported the application of discovery rules to the

capital-sentencing phase and also recommended that defendants be allowed to make

a statement during this stage, rather than being limited to formal testimony.

Moreover, said the commission, the sentencing jury should be informed of the alter-

nate sentences that would apply if death were not recommended. With studies hav-

ing showed that jurors were confused by existing language and often uncertain about

their responsibilities (Berlow, 2002; Diamond and Levi, 1996), the Governor’s

Commission encouraged the Illinois Supreme Court to approve clearer instructions

on the jur

y’

s r

ole in the sentencing decision. It also r

ecommended that a death sen-

tence be authorized only when the judge and sentencing jur

y agr

eed that this is the

appr

opriate sentence.

Other Recommendations. The Gover

nor’s Commission recommended legislation to

give the Illinois Supr

eme Court authority to determine whether a death sentence was

impr

operly imposed due to some arbitrary factor, to conduct an independent assess-

ment of the aggravating and mitigating factors, and to car

ry out a proportionality

eview to determine whether a death sentence is excessive or disproportionate com-

par

ed to similar cases. It lamented the “astonishing lack of data about how the capi-

tal punishment system works” and recommended that information be collected and

MORATORIUM AND REFORM 431

used to assess “whether the death penalty is, in fact, being fairly applied” (Governor’s

Commission, 2002:189). At the end of its report, the Governor’s Commission noted

that many of its recommendations also applied to other criminal cases. Although the

commission had only been charged with the study of the capital-punishment process,

it concluded that recommendations to improve the accuracy and fairness of that

process “apply with equal force to cases where non-death sentences are imposed”

(Governor’s Commission, 2002:188; see also Sullivan, 2002).

To implement the Governor’s Commission’s recommendations, Illinois would

have to make a “significant commitment of resources.” Concluding that “[f]ailure to

fund and implement meaningful reform casts doubt upon the reliability of the entire

system,” the Governor’s Commission (2002:178) pointed to the Capital Litigation

Trust Fund as an important first step and unanimously recommended that the Capital

Crimes Litigation Act be made permanent.

GOVERNOR RYAN’S RESPONSE: LEGISLATIVE REFORM AND EXECUTIVE

CLEMENCY

The Governor’s Commission on Capital Punishment presented its final report to

Governor Ryan on April 15, 2002. Within a month, he proposed legislation to enact

most of its recommendations. However, the lame-duck governor was already mired

in a corruption scandal, and an initial spirit of partisan cooperation among state leg-

islators was blunted by election-year politics. The only legislation appr

oved by the

Illinois General Assembly actually increased the number of eligibility factors.

Governor Ryan vetoed the bill.

In 2002 Governor Ryan announced his intent to review each death penalty case

for possible clemency. He asked the Illinois Prisoner Review Board to conduct

clemency hearings for all prisoners then under sentence of death and to make recom-

mendations to him. The prisoner review board set up three panels, each of which

heard testimony on six cases a day for two weeks in October. The recommendations

to the governor were confidential, but public reports at the time suggested that the

board had recommended few if any commutations.

In addition to reviewing the board’s recommendations, the governor met with

the families of victims and of inmates and also with various advocacy groups (Ryan,

2003). On January 10, 2003, he announced the pardon of four men on the grounds

of actual innocence. The four were part of a group known as the “Burge 10,” death-

row prisoners who claimed to have been tortured by Chicago Police commander Jon

Burge or others under his command. An internal-affairs investigation had confirmed

the likelihood of systematic torture in these and other cases (Bogira, 2005; Conroy,

2000). In announcing the pardons, Ryan said: “I believe these men are innocent.

. . . There isn’t any doubt in my mind that these four men were wrongfully prosecut-

ed, and wrongfully sentenced to death” (Flock, 2003).

Then, the next day, on January 11, 2003, just days before his term ended,

Governor Ryan issued a “blanket clemency” for all 167 inmates under sentence of

432 THE JUSTICE SYSTEM JOURNAL

death, in which he commuted the sentences to life without parole or, in three cases,

to a sentence of forty years to life that matched the sentences received by codefen-

dants. Ryan (2003) explained that although he had originally been concerned about

the possibility of error and the conviction of innocent individuals, his study of the

capital-sentencing process had led him “to care above all about fairness. . . . If the sys-

tem was making so many errors in determining whether someone was guilty in the

first place, how fairly and accurately was it determining which guilty defendants

deserved to live and which deserved to die?”

GOVERNOR BLAGOJEVICH: CONTINUING THE MORATORIUM,

EGISLATING REFORMS

Governor Rod Blagojevich, elected in 2002, announced that he would continue the

Ryan moratorium on executions until he was sure that no innocent person could be

sent to death row or executed (Goldstein and Harmon, 2006). A spokeswoman reit-

erated this position in 2008, stating that the governor would keep the moratorium in

place “until it’s clear beyond a doubt that the reforms . . . are adequate and working

and there’s no chance that an innocent person will wrongfully be put to death”

(Barnum, 2008). Governor Blagojevich has continued to emphasize the accuracy

issue, where Governor Ryan began, more than the issue of fair and proportional use

of the death penalty, with which Governor Ryan concluded.

In 2003 a death penalty r

eform bill very similar to the one proposed by

Governor Ryan was introduced in the Illinois General Assembly and quickly

approved in both houses. After six months of political negotiation over the standard

of proof and the reviewing agency in police-perjury allegations, Governor

Blagojevich finally signed a death penalty reform bill (PA 93-605) and an accompa-

nying bill specifying the procedures to be used in perjury allegations (PA 93-655) (see

Cullerton, Dillard, and Baroni, 2004). The bill authorized decertification of police

officers when there was clear and convincing evidence that an officer had knowing-

ly and willingly made a false statement under oath regarding a material fact in a mur-

der case, even if there was no criminal prosecution or conviction for perjury. During

the first four years after adoption of the law (2004-07), no formal complaints of police

perjury were made.

PA 93-605 incorporated many of the Governor’s Commission’s recommenda-

tions, including changes in identification procedures, mandatory recording of custo-

dial interviews with suspects and key witnesses in capital cases, “advisory” guidelines

for the decision to seek the death penalty, stiffer disclosure and discovery require-

ments, judicial screening of an in-custody informant’s (“jailhouse snitch”) testimony,

and revisions in capital-jury instructions to clarify jurors’ sentencing options and

responsibilities. The new legislation prohibited the imposition of the death penalty

on mentally retarded defendants, or in cases based on the uncorroborated testimony

of an in-custody informant or a single accomplice or eyewitness. It required trial

judges who disagreed with a jury’s decision to sentence a defendant to death to put

MORATORIUM AND REFORM 433

their reasons in writing and make them part of the appellate record, but it did not

authorize them to override the jury’s death sentence. It also gave new authority to

the Illinois Supreme Court to overturn any death sentence it considered “fundamen-

tally unjust,” even though no specific procedural or constitutional basis existed for

that ruling. PA 93-605 also permanently authorized the Capital Litigation Trust Fund

and created a Capital Punishment Reform Study Committee (“Study Committee”) to

study the impact of the reforms and report annually to the Illinois General Assembly

for the next five years.

Some of the Governor’s Commission’s key recommendations were not included

in this legislation. Public Act 93-605 did

not:

• reduce or substantially change the eligibility factors for capital cases;

• create an independent forensic laboratory or establish independent oversight of

existing laboratories;

• require double-blind procedures in witness identifications or in forensics testing;

• require mandatory state review or approval of prosecutors’ decisions to seek the

death penalty;

• authorize the trial judge to impose a non-death sentence when the jury recom-

mended death; or

• establish a system for the systematic collection of data on potential capital

cases.

No major reform legislation regarding the death penalty has passed, or even

received serious attention, in the four years after 2003. The Study Committee itself

was not fully constituted until early 2005, did not submit its first “annual” report until

April 2005, and did not hold its first public hearing, as directed by the law, until

November 2006. Thomas Sullivan, cochair of the Governor’s Commission, was

selected as chair. (A complete archive of documents, including minutes of the Study

Committee and its subcommittees, reports received by the Study Committee, and its

annual reports to the Illinois General Assembly, is maintained at http://www.icjia.

org/public/index.cfm?metasection=dpsrc.) The Capital Crimes Database Act (PA

95-688), directing the Illinois Criminal Justice Information Authority to collect

information on capital-eligible cases, was adopted in 2007, but the authorizing legis-

lation did not include any appropriations to support the project. By mid-2008, there

was still no systematic collection or analysis of infor

mation on these cases.

IMPLEMENTING

THE

REFO

RMS

: 2004-2007

Custodial Inter

rogations and Identification Procedures

. The Study Committee

(2006:5) r

eported that the recording of custodial interrogations was “proceeding

without major pr

oblems” in Chicago, where the police department had developed a

sophisticated system for r

ecording interrogations in most station houses around the

city

. Many departments in downstate Illinois, some of which investigate only a few

mur

der cases a year, had not yet established a standard recording protocol. After

interviewing police, prosecutors, and defense attorneys, the Study Committee con-

434 THE JUSTICE SYSTEM JOURNAL

cluded that police were generally complying with their obligation to record the entire

interview, not just a suspect’s final statement. There appeared to be fewer motions to

suppress confessions in homicide cases, and fewer disputes about what was said or

done during the interrogation. However, the Illinois Coalition Against the Death

Penalty (ICADP) reported that Cook County judges had used their discretion to

admit unrecorded statements in several capital cases (ICADP, 2008).

Public Act 93-605 mandated a pilot program to test the “double-blind, sequen-

tial” system for lineups and photo-array identifications (called “photo spreads” in the

legislation). After one year, an evaluation concluded that the sequential process was

not as accurate as the traditional simultaneous process (Mecklenburg, 2006); this

contradicted the results of most previous studies reviewed by the Governor’s

Commission (O’Toole, 2006; Wells, 2006). The Study Committee (2007:15) con-

cluded that the evaluation did not provide a sufficient basis for conclusions and rec-

ommended that “blind” administrators (who do not know which person is the actual

suspect) should still be used “whenever practicable.” A proposed recommendation

that the Illinois General Assembly adopt legislation to require blind administration

of lineups and photo spreads was initially included in the Study Committee’s

Third

Annual Report

(2007), then withdrawn later in 2007 to allow further consideration of

the issue by the Study Committee (2008).

Deciding Whether to Seek the Death Penalty. Supreme Court Rule 416 required

state’s attorneys to announce their intent to seek the death penalty within 120 days of

arraignment. Experience with this provision has been mixed. In some cases, the deci-

sion has been announced shortly after arraignment, while in others, the decision has

been announced at or substantially after the 120-day point. Cook County, where more

than 80 percent of the state’s capital cases are brought, has often failed to meet the

deadline. This has imposed a substantial burden on the public defender’s office, which

has to treat cases where no decision has been announced as if they will be death penal-

ty cases, even though most are eventually decertified or resolved by guilty pleas to non-

capital murder. Some state’s attorneys have openly acknowledged keeping the death

penalty on the table to encourage defendants to plead guilty (see Ehrhard, 2008). It

also appears that some cases may be certified in part to take advantage of the state-

funded assistance provided through the Capital Litigation Trust Fund.

The Illinois Attor

ney General and the Illinois State’

s Attor

ney’

s Association

issued voluntar

y guidelines for pr

osecutors in Febr

uar

y 2006, more than two years

after the legislation r

equiring them was adopted. Rather than providing concrete

guidelines for deciding when to seek the death penalty

, the document identified

“basic factors which should be consider

ed in the exercise of discretion” (quoted in

Study Committee, 2007:17). The most impor

tant of these were 1) the strength of the

state’

s case, where the prosecutor should have “absolutely no doubt” about the defen-

dant’

s guilt and should be able to “meet, and even surpass” the burden of proof; 2) the

natur

e of the offense, as to which the prosecutor should resist public pressure to seek

the death penalty solely because of the brutality of the crime; 3) the views of defense

MORATORIUM AND REFORM 435

counsel, to whom prosecutors should give “a fair opportunity to present valid reasons”

why the death penalty is not appropriate in a specific case; and 4) the views of “other

experienced prosecutors” (quoted in Sullivan, 2007:954-55).

Thirteen people were sentenced to death in the first five years (2003-07) after

Governor Ryan’s mass clemency in January 2003. This compares with a total of more

than 275 capital convictions between 1977 and 2003, an average of more than ten

death penalty sentences a year. Because there is no state database on capital or poten-

tially capital cases, it is difficult to determine the proportion or types of murder cases

that are actually prosecuted as capital cases. Relying primarily on information gath-

ered by the Illinois Coalition Against the Death Penalty (ICADP), the Study

Committee found that the vast majority of potential capital cases in Illinois after

2003 have resulted in sentences other than death. Of the sixty-one defendants

charged with capital murder in 2006, eight (13 percent) were acquitted at trial, six

(10 percent) pled guilty to noncapital offenses, and forty-four (72 percent) pled guilty

or were convicted of first-degree murder and received noncapital sentences. Only

three defendants (5 percent of the total) were convicted at trial and sentenced to

death (Sullivan, 2007). The ICADP (2008) reported a comparable pattern for 2007.

Approximately sixty capital cases were resolved during that year, but only one-third

of them were actually tried as capital cases. Three defendants (approximately 5 per-

cent of the total) were convicted on capital charges and sentenced to death, while six

defendants (approximately 10 percent) were found not guilty at trial. Inconsistent

application of the death penalty across the state had also been reported anecdotally

(see ICADP, 2008, 2007, 2006, 2005).

Capital Case Litigation. The Capital Litigation Trial Bar had several hundred mem-

bers by the end of 2007. A list of all those certified to try capital cases is maintained

online by the Administrative Office of the Illinois Courts and is readily accessible

(at http://www.state.il.us/court/SupremeCourt/Cap_Lit/default.asp). The Capital

Litigation Trial Bar requirement has become an accepted part of capital-case litiga-

tion, and defense lawyers who have not been certified simply decline to accept these

cases. Defendants with adequate private resources may hire an attorney who is not a

member of the Capital Litigation Trial Bar as part of the defense team, but the two

lead chairs must be filled by certified attorneys. Many smaller counties still have rela-

tively few members of the Capital Litigation T

rial Bar

, even within the county pub

lic defender

’

s of

fice. When no one in the public defender

’s office is certified to try

capital cases, the judge must appoint qualified private attor

neys who are paid out of

the Capital Litigation T

rust Fund (see Burke, 2008).

State Funding. Both pr

osecutors and defense attorneys agree that the Capital

Litigation T

rust Fund has done the most to change the way in which capital cases are

handled. It established a state-based system of funding to supplement the county-

based public-defender system, r

educing the dependence of defense counsel on local

judges and the county budget. It funds essential investigation, for

ensic testing, and

legal experts during pretrial preparation, trial, sentencing, and postconviction

436 THE JUSTICE SYSTEM JOURNAL

appeals. Because funds for nonsalary items are available to both prosecution and

defense, objections to the trust fund have been minimized.

IMPLICATIONS OF INCREMENTAL REFORM

The number of capital cases tried in Illinois has decreased since 2000, as has the num-

ber of death sentences imposed. Some credit these changes to the reforms adopted

since 1999, which make it more likely that capital prosecutions will be vigorously

defended. Yet other states that have not adopted major reforms have seen similar pat-

terns (Constitution Project, 2005). The fact that defendants who have spent years in

prison continue to be exonerated of the crimes for which they were convicted has led

to greater scrutiny of capital cases and more caution in the use of the death penalty.

It remains to be seen whether the improvements in the quality of judges and lawyers,

and in their preparation for capital cases, will lead to the kinds of systemic changes

envisioned by the Illinois Supreme Court and the Commission on Capital

Punishment.

The Illinois General Assembly imposed new investigative and reporting

requirements on law-enforcement agencies in 2003. In general, judges are responsi-

ble for enforcing those requirements. Past experience with attempts to reform the

investigative process in Cook County and to apply those reforms to individual crimi-

nal cases suggests this will be a slow process. In capital cases heard after 2003, trial

judges have been generous in accepting police reports on whether it was “feasible” to

videotape or otherwise record full interviews with suspects or key witnesses in murder

investigations. However, both police and prosecutors are becoming more supportive

of these requirements as they see the benefits of such a record in pretrial negotiations

and at trial.

Pretrial depositions of prosecution witnesses have also become standard practice

in capital cases. Although judges are authorized under Rule 416 to use their discre-

tion in deciding when to permit discovery depositions, the emerging practice appears

to be to approve deposition requests unless there is a clear reason not to do so. Thus,

the burden of proof is gradually shifting from the defense (to justify the need for a

deposition) to the prosecution (to justify denying a request).

Governor Ryan’s charge to the Commission on Capital Punishment directed it

to identify ways to ensur

e that the capital-punishment system operated in a way that

was “just, fair and accurate.” Most of the r

eforms that were subsequently adopted in

Illinois have been designed to incr

ease the accuracy of the capital-case pr

ocess and

event the wr

ongful conviction of innocent defendants. The pr

oblem of wr

ongful

conviction in capital cases has also been the focus of r

efor

m ef

for

ts in other states. By

2005, commissions to study capital punishment had been established in nearly half

the states that allow it, and innocence commissions had been cr

eated in two states

(Gould, 2007). Other states had implemented specific changes without br

oader study

of the overall capital-punishment pr

ocess.

MORATORIUM AND REFORM 437

The charge to make the system more just and fair has been less successful.

These are the problems that led Governor Ryan to issue his mass clemency to those

on Illinois’s death row. Sentences were reduced from death to life imprisonment not

because there was evidence that these inmates were innocent of the crimes for which

they had been convicted, but because there was no rational basis for sentencing them

to death when others convicted of similar crimes did not face even the possibility of

such a sentence. These are the same problems that led the Supreme Court to strike

down state capital-punishment laws in

Furman (1972) more than thirty-five years

ago. Proposals to reduce discrimination and arbitrariness fall into three general cate-

gories: reducing the number of aggravating factors (or “eligibility factors”) so that the

death penalty is reserved for the worst of the worst; limiting discretionary decision

making so that the death penalty is imposed more consistently; and implementing

some form of proportionality review that compares death decisions across cases.

The Governor’s Commission recommended changes in all three areas. They

included mandatory review and approval of prosecutors’ decisions to seek the death

penalty, a requirement that the Illinois Supreme Court conduct a proportionality

review as part of the appellate review of each capital sentence, and the collection of

detailed information on all murder cases to better understand the factors that lead to

a death sentence being sought and imposed. None of these proposed changes were

included in the reform legislation adopted by the Illinois General Assembly. Other

states have made limited progress in this area. For example, New Jersey now requires

appellate judges to conduct a proportionality review by comparing each death penal-

ty case to other capital cases that resulted in a sentence of death (on reform in New

Jersey, see Henry, 2008). Several states, including Washington and Georgia, require

each death penalty case to be compared to the overall pool of death-eligible cases (see

Kaufman-Osborn, 2008; Constitution Project, 2005).

The Illinois General Assembly declined to impose state standards to control the

decision to prosecute certain murders as capital offenses. Instead, it chose to shift the

problem to the Illinois Supreme Court, authorizing it to overturn any death sentence it

considered to be “fundamentally unjust.” This may help to eliminate some of the most

obvious cases of arbitrary decision making, but it will inevitably leave others in place.

By focusing on wrongful conviction, rather than fair and evenhanded sentencing,

Illinois has avoided addr

essing a cor

e pr

oblem in the pr

osecution of capital cases.

jsj

438 THE JUSTICE SYSTEM JOURNAL

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