Hold Off on Death Penalty

Gov. George Ryan of Illinois recently marked a clear path to improved justice throughout the nation. By executive action, he effectively made Illinois the first of the 38 states with capital punishment to halt all executions while it reviews its death penalty procedures.

In the face of a number of examples of how its system has failed, Illinois acknowledged the intolerably high risk of error and is seeking answers. Ryan’s leadership should be followed by conscientious public officials in other jurisdictions.

Ryan decided to block the executions by granting stays before any scheduled lethal injections are administered, a move that would keep condemned prisoners under the death sentence but would indefinitely postpone their execution. The American Bar Assn. could not be more supportive of this courageous action.

In 1997, the ABA called for a halt to executions until jurisdictions that impose the death penalty adopt policies to ensure fundamental fairness and due process. Our goal is clear, and it is apparent from his statements that the governor has similar concerns: We must minimize the risk that innocent people are put to death. These concerns are mounting, and moves toward moratoriums on the death penalty are growing.

Ryan became convinced that the death penalty system was “broken” in Illinois. Capital punishment was reinstated 23 years ago and, since that time, 13 death row inmates in Illinois have been cleared of murder charges, while 12 were put to death. When the resource centers that provided free legal guidance lost federal funding, the state of Illinois picked up some of the slack. Pro bono work by Illinois law firms, coupled with the willingness of the Illinois Supreme Court to review cases, also played a major role. Finally, Illinois death penalty inmates benefited from the work of journalism and law schools intervening from outside the system when it failed.

It is only because Illinois was more open to review than most other states that it allowed parties outside the capital punishment system to expose its flaws. The same flaws may remain largely undiscovered in other systems that are designed to expedite punishment. These systems may yet prove to be at least as rife with prosecutorial misconduct, police corruption, poor science and inadequate judicial review.

Although none of the other 37 states has yet declared a moratorium, Nebraska came close last year. The Nebraska Legislature passed a moratorium on executions, but it was vetoed by Gov. Mike Johanns. The Legislature, however, prevailed in requiring a review of the state’s capital punishment system. The ABA’s 147-page report calling for a moratorium on capital punishment, released this month, recommended:

* Establishing guidelines for the appointment and performance of counsel in death penalty cases;

* Preserving, enhancing and streamlining state and federal courts’ authority and responsibility to exercise independent judgment on the merits of constitutional claims in state post-conviction and federal habeas corpus proceedings;

* Striving to eliminate discrimination in capital sentencing on the basis of race of either the victim or the defendant;

* Preventing the execution of people under age 18 at the time of their offenses and the execution of mentally retarded individuals.

The apparent need to resolve these concerns should continue to spur more reviews of death penalty systems, with concurrent moratoriums. The ABA is not opposed to the death penalty per se, but both opponents and proponents of the death penalty are in agreement that we do not want to make a fatal mistake.