In Illinois, Sweeping Review of Death Penalty

CHICAGO -- At 9 a.m. Tuesday, in a series of drab state government conference rooms, the Illinois Prisoner Review Board began an unprecedented process: considering clemency requests from nearly every inmate destined for execution by the state.

Over the next week and a half, 142 of the state’s 160 death row inmates will plead for their lives.

By noon Tuesday, the myriad moral quandaries the hearings would dredge up, the immense anguish and potentially profound political ramifications, had become clear.

Time after time defense attorneys acknowledged that their clients were guilty of the crimes that sent them to death row but said the question of life or death should not come from a system that has repeatedly failed. Prosecutors, in response, pointed out that the people of Illinois decided in 1977 to reinstate the death penalty with the expectation that the most vicious murderers would die for their crimes.

The loved ones of the dead, meanwhile, sobbed.

The system is not perfect, but, Carolyn DeWitt wanted to know, does that mean that Gov. George Ryan, who ordered the reviews, should commute to life in prison the death sentence of Donald Armstrong? In 1992, Armstrong murdered DeWitt’s aunt. He used 86-year-old Marion Smigel’s own cane to pulverize her skull.

“Why is the governor doing this?” DeWitt cried. “Do you know how much heartache this is bringing to people? And for what reason?”

A former death penalty supporter, Ryan called a moratorium on executions in Illinois in January 2000, after revelations of serious flaws in the system. The state has executed 12 people since capital punishment was reinstated and freed 13 who were wrongfully condemned to die.

Three months after imposing the moratorium, Ryan appointed a commission to study the state’s death penalty system. In April this year, the commission released its report. The capital punishment system was broken, it said, and required a massive overhaul if it was ever to be used again.

Among the commission’s suggestions: Mentally retarded convicts should not be executed; the state should do away with 15 of the 20 contributing factors that allow juries to impose a death sentence; a defendant should not be sentenced to death based solely on a single witness’ testimony or the uncorroborated testimony of a jailhouse informant; trial judges should be allowed to ignore a jury’s death sentence.

After the commission released its findings, Ryan ordered the Prisoner Review Board to hold a hearing on every case in which the inmate sought clemency. All but 18 of Illinois’ death row inmates asked to have their cases heard.

The recommendations of the review board are confidential. Ryan can review each case individually, or commute all death sentences to terms of life in prison, or do nothing. In a recent interview, Ryan, who is known for weighing difficult decisions at the last minute, said he had not made up his mind as to how he will handle the board’s recommendations.

On the eve of the hearings, Cook County State’s Atty. Richard Devine pleaded with the governor: If he already knows he is going to overturn all death sentences, please say so.

“If, in fact, the governor has his mind made up and plans to grant wholesale clemency, he should have the decency to cancel these hearings and spare the families the trauma of reliving their horror yet again, to no purpose,” Devine said.

Ryan said nothing, and Tuesday morning prosecutors handed victims’ family members yellow lapel ribbons and the hearings commenced in Chicago and Springfield. All the cases are expected to be heard by Oct. 25. Inmates do not attend hearings.

One of the first names to be called, in a packed room on the 9th floor of the James R. Thompson Center downtown, was that of Leonard Kidd, whose case embodies many of the difficult questions in the debate about the death penalty. The 48-year-old is a man proponents and opponents alike can point to in making their arguments.

Kidd was sentenced to death twice, once for intentionally setting a fire that killed 10 children in 1980 and for stabbing four people to death during a drug binge.

“There are few others on the planet who have killed more people,” prosecutor David O’Connor said.

Kidd’s attorney, Sharon Hicks, testified that a recent test showed Kidd had an IQ in the high 50s. In Illinois, a person is considered legally retarded if he scores 70 or below. (Some prosecutors in the case, and the relatives of some victims, have claimed that Kidd has faked diminished mental capacity.)

Additionally, Kidd’s defenders say he was tortured into confessing -- an argument expected to be made by at least 10 inmates who were interrogated in the 1980s at Chicago’s Area 2 police headquarters, where a station commander allegedly sanctioned the torture of suspects. The detective who questioned Kidd has been accused of applying electrodes to the testicles of suspects, including Kidd, and delivering electric shocks.

A short time later, just down the hall from Ryan’s 16th-floor offices, four members of the review board were hearing the Armstrong case.

During a decade in prison for Smigel’s murder, Armstrong never sought a clemency hearing, his attorneys acknowledged, but on Tuesday they alleged that his confession had been coerced, that his attorney had been ill during the trial and perhaps unable to defend him properly, and that various tests place his IQ at between 73 and 76 -- very low, if not indicating legal retardation.

“This case does exemplify many of the reasons the governor’s commission gave as to why the system is broken,” defense attorney John Morgan said.

“If I had a nickel for every time I heard the system was broken we’d be doing this at the Bellagio Hotel in Las Vegas,” James McKay, the prosecutor on the case, snapped when it was his turn to speak. “Even if you believe the capital punishment process in the state of Illinois is broken, it wasn’t broken in this case.”

McKay pointed out that Armstrong’s cousin turned him in to police, that two of his brothers testified against him during the trial, that his IQ was not so low that, having broken into Smigel’s apartment, he apparently killed her because she saw his face and could identify him. He was also smart enough to tell family members he had to get out of town for a while after the murder, McKay said.

So it went, throughout the day, the vast majority of the witnesses testifying not to the guilt or innocence of the condemned, but to an even more difficult question: Should they die for their crimes?

In their appeals, neither Armstrong nor Kidd nor a man named Mark Ballard ever argued “actual innocence,” the legal phrase. Indeed, during his 1999 trial, Ballard, 41, said he deserved to die for his crime, and the jury agreed.

In 1997 he lured a former roommate, Patty Ann Noland, to the house they once shared in order to rob her. When she arrived, he grabbed her and held a chloroform-soaked cloth over her mouth until she fell to the floor. Then he hit her with a hammer, more than 30 times in the head and face.

“Mark Ballard is guilty of this crime,” one of his attorneys told the panel Tuesday. But his defenders added that he suffered from bipolar disorder and that if the proposed changes to the death penalty are adopted, a person who committed the same crime might not meet the requirements for a death sentence.

Ryan, who will bow out of politics in January after one term in the governor’s mansion, has not said he opposes the death penalty, only that he refuses to allow any executions until he is certain an innocent person could not possibly be killed.

He ordered the hearings, he said, to help him decide whether to commute the sentences of some or all death row inmates.

An aide to Ryan, who along with several staffers has studied to varying degrees the cases of every Illinois death row inmate, said in a recent interview that they believe one or two may in fact be innocent.

Over the years a handful of governors who philosophically opposed the death penalty has issued blanket clemencies. In 1970, Arkansas Gov. Winthrop Rockefeller commuted the death sentences of all 15 of his state’s condemned inmates, and New Mexico Gov. Toney Anaya did the same in 1986, sparing the lives of five killers.

Tuesday’s hearings revolved less around questions of guilt or innocence, or even fairness, than around the philosophy and morality of the death penalty.

“Shame on you, Gov. Ryan,” Margie Kalbert, Noland’s sister, said at one point.

David Elliott of the Washington-based National Coalition to Abolish the Death Penalty applauded Ryan.

“Any justice system that is built by humans is going to contain some element of human fallibility,” he said. “So we have to ask ourselves: What’s the acceptable level of risk? Is it one innocent person per 100 guilty people? Is it three per hundred?”