The death penalty: "Arbitrary and capricious"

Outgoing Illinois Gov. George Ryan provoked bitter controversy Saturday when he commuted the sentences of 157 death row inmates. In a speech, he explains his decision.

Published January 14, 2003 11:08PM (EST)

Four years ago I was sworn in as the 39th governor of Illinois. That was just four short years ago -- that's when I was a firm believer in the American system of justice and the death penalty. I believed that the ultimate penalty for the taking of a life was administrated in a just and fair manner.

Today -- three days before I end my term as governor, I stand before you to explain my frustrations and deep concerns about both the administration and the penalty of death ...

During my time in public office I have always reserved my right to change my mind if I believed it to be in the best public interest, whether it be about taxes, abortions or the death penalty. But I must confess that the debate with myself has been the toughest concerning the death penalty. I suppose the reason the death penalty has been the toughest is because it is so final -- the only public policy that determines who lives and who dies. In addition it is the only issue that attracts most of the legal minds across the country. I have received more advice on this issue than any other policy issue I have dealt with in my 35 years of public service. I have kept an open mind on both sides of the issues of commutation for life or death.

I have read, listened to and discussed the issue with the families of the victims as well as the families of the condemned. And I know that any decision that I'll make today will not be accepted by one side or the other. I know that my decision will be just that: my decision, based on all of the facts that I could gather over the past three years. I may never be comfortable with my final decision, but I will know in my heart that I did my very best to do the right thing.

Having said that I want to share a story with you:

As you all know, you have heard me say I grew up in Kankakee, Illinois. And Kankakee is not far from Chicago, but it's still a thousand miles away in terms of a lot of things. It is still a small Midwestern town, a place where people tend to know each other. And I had a great neighbor, and his name was Steve Small. He and his wife would look after our young children when Lura Lynn and I were out of town. That wasn't for the faint of heart, because we had six kids and five of them were under the age of 3. But he was a bright young man who helped run the family business, and he and his wife had three children of their own. Lura Lynn was especially close because we knew that we were there for each other.

One September midnight, Steve received a call at his home. He had bought an old Frank Lloyd Wright house and was restoring it to its original form. There had been a break-in at that house, and he had to go sign a complaint with the police. When he got to the garage, he was seized at gunpoint by kidnappers. His captors buried him alive in a shallow hole. He suffocated to death before police could find him.

His killer eventually led police to where Steve's body was buried. The young man's name was Danny Edwards. He was also from my hometown of Kankakee. And he now sits on death row. I know his family. I know his brother. I know his mother and father. I share this story with you so that you know that I don't come to this without having experienced a small bit of the bitter pill the survivors of murder must swallow.

But my responsibilities and obligations are more than my neighbors and my family. I represent all of the people of Illinois and the decision that I make about our criminal justice system is felt not only here but as I found out, the world over.

I received a call from Nelson Mandela. The message he basically delivered was that the United States sets the example for justice and fairness for the rest of the world. And today the United States is not in league with most of our allies when it comes to the death penalty. We're not in league with Europe or South Africa or Canada or Mexico, most South and Central American countries. These countries have rejected the death penalty. We're partners in death with several Third World countries. Even Russia has now called a moratorium.

The death penalty has been abolished in 12 states and in none of those states has the homicide rate increased. Now, here's a good number for you to remember: In Illinois last year, we had about 1,000 murders and only 2 percent were sentenced to death. I want to know, where is the fairness and the equality in that? The death penalty in Illinois is not imposed fairly or uniformly, because of the absence of standards for 102 counties in this state and the state's attorneys who must decide whether to request a death sentence. Should geography be a factor in determining who gets the death sentence? I don't think it should. But in Illinois it makes a difference. You are five times more likely to get a death sentence for the first-degree murder in the rural areas of the state than you are here in Cook County. Five times more. Where's the fairness in that? Where is the fairness in the justice system? Where is the proportionality?

The Most Reverend Desmond Tutu wrote to me this week stating that "to take a life when a life has been lost is revenge. It's not justice." He says justice allows for mercy and clemency and compassion. These virtues are not weaknesses.

I never intended to be an activist on this issue, needless to say. But soon after taking office, I watched in surprise and amazement as the freed death row inmate Anthony Porter was released from jail. Anthony Porter was 48 hours away from being wheeled into the execution chamber where the state would kill him.

It would be so antiseptic that most of us wouldn't have even paused for a second, except that Anthony Porter was innocent. He was innocent for the double murder for which he had been condemned by the state of Illinois to die.

After Mr. Porter's case there was the report by Chicago Tribune reporters Steve Mills and Ken Armstrong documenting the systemic failures of our capital punishment system. Half of the nearly 300 capital cases in Illinois had been reversed for a new trial or resentencing.

Now, how many of you people here today that are professionals can call your life a success if you're only 50 percent successful? Certainly, I can't as a pharmacist. I don't think doctors can. I don't know how the Justice Department can think they have a system that works when 50 percent of the cases are sent back for fixing.

Thirty-three percent of the death row inmates were represented at trial by an attorney who had later been disbarred or at some point suspended from the practice of law. Of the more than 160 death row inmates, 35 were African-American defendants who had been convicted or condemned to die not by a jury of their peers, but by all-white juries. More than two-thirds of the inmates on death row were African-Americans. Forty-six inmates were convicted on the basis of testimony from jailhouse informants.

I can recall looking at these cases and the information from the Mills/Armstrong series, and I asked myself and my staff: How does that happen? How in God's name does that happen? In America, how does it happen? I've been asking this question for nearly three years, and so far nobody's answered the question. Even as I stand here today, nobody's answered the question.

Over the next few months three more exonerated men were freed because their sentences hinged on a jailhouse informant or some new DNA technology proved beyond a shadow of a doubt that they were innocent.

We then had the dubious distinction of exonerating more men than we had executed. Thirteen men found innocent, 12 executed. As I reported yesterday, there is not a doubt in my mind that the number of innocent men freed from our death row stands at 17, with the pardons of Aaron Patterson, Madison Hobley, Stanley Howard and Leroy Orange.

That is an absolute embarrassment. Seventeen exonerated death row inmates is nothing short of a catastrophic failure. But the 13, now 17, men is just the beginning of our sad arithmetic in prosecuting murder cases. During the time we have had capital punishment in Illinois, there were at least 33 other people wrongly convicted on murder charges and exonerated. Since we reinstated the death penalty there are also 93 people -- 93 -- where our criminal justice system imposed the most severe sanction and later rescinded the sentence or even released them from custody because they were innocent.

How many more cases of wrongful conviction have to occur before we can all agree that this system in Illinois is broken?

I also had a meeting with a group of people who are less often heard from and who are not as popular with the media. The family members of death row inmates have a special challenge to face, and I spent an afternoon with those family members at a church here in Chicago on the South Side. At that meeting, I heard a different kind of pain expressed. Many of these families live with the twin pain of knowing not only that in some cases their family members were responsible for inflicting a terrible trauma on another family but also that society has called for another killing. These parents, siblings and children are not to blame for the crime that has been committed, yet these innocents stand to have their loved ones killed by the state. As Mr. Mandela told me, they are also branded and scarred for life because of the awful crime committed by their family member.

Others were even more tormented by the fact that their loved one was another victim, that their loved one was truly innocent of the crime for which they had been sentenced to die.

It was at that meeting that I looked into the face of Claude Lee, another Kankakee citizen. Claude Lee is the father of Eric Lee, who was convicted of killing a Kankakee police officer, Anthony Samfay, a few years ago. It was a traumatic moment, once again, for my hometown of Kankakee. A brave officer, part of that thin blue line that protects all of us from being struck down by wanton violence. If you will kill a police officer, you have absolutely no respect for the laws of man or God.

I have known the Lee family for many years. There does not appear to be a whole lot of question about the guilt of Eric Lee. He killed that officer. However, I can say now that after our review there is also not much question that Eric is and has been for some time very seriously ill, with the history of treatment for mental illness going back a number of years.

I had to ask myself, could I send another man's son to death under the deeply flawed system of capital punishment that we have in Illinois, a troubled young man with a history of mental illness? Could I rely on the system of justice that we have in this state not to make another horrible mistake? Could I rely on a fair sentencing program? Could I rely on a fair sentencing program in the United States?

In the United States, the overwhelming majority of those executed are psychotic, alcoholic, drug-addicted or mentally unstable. And they're frequently raised in an impoverished and abusive environment. Seldom are people with money or prestige convicted of capital offenses, but even more seldom are they executed.

Earlier this year, the U.S. Supreme Court held that it's unconstitutional and cruel and unusual punishment to execute the mentally retarded. It's now the law of this land. How many people have we already executed who were mentally retarded and are now dead and buried? Although we now know that they have been killed by the state unconstitutionally and illegally. Is that fair? Is that right?

This court decision was last spring. The General Assembly of the state of Illinois has failed to pass any measure defining what constitutes mental retardation. We are a rudderless ship, because they failed to act. This was even after the Illinois Supreme Court also told lawmakers that it was their job and it must be done.

I started with this issue because I was and still am concerned about innocence, but once I studied, I pondered what had become of our justice system. I came to care above all about fairness. Fairness is fundamental to the American system of justice and to our way of life.

The facts that I've seen in reviewing each and every one of these cases raised questions not only about the innocence of people on death row, but about the fairness of the death penalty system as a whole.

If the system 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? What effect was race having? What effect was poverty having?

And almost every one of the exonerated 17, we'd not only had breakdowns with police and prosecutors and judges, we have terrible cases of shabby defense lawyers. There is no way to sugarcoat what goes on. There are defense attorneys that did not consult with their clients. They didn't investigate the cases that they had, and they were completely unqualified to handle complex death penalty cases. They often don't put much effort into fighting a death sentence, and if your life is on the line, your lawyer certainly ought to be working a little extra hard to make sure that your life is saved. As I've said before, there's more than enough blame to go around about our failures with this system.

I had more questions.

In Illinois I have learned, we have 102 decision-makers. Each of them are politically elected. Each beholden to the demands of their community, and in some cases, to the media or especially vocal victims' families. And I ask you, in cases that have the attention of the media and the public, are decisions to seek the death penalty more likely to occur? What standards are these prosecutors using?

Some people have assailed my power to commute sentences, a power that literally hundreds of legal scholars from across the country have defended. The prosecutors in Illinois have the ultimate commutation power, a power that is exercised every day. They decide who's going to be the subject to the death penalty, who will get a plea deal, or even who may get a complete pass on prosecution. Every day in this state that happens. I ask about what standards they make these decisions on. We don't know. They're not public. There were more than 1,000 murders last year in Illinois, and there is no doubt that all murders are cruel and they're wrong, yet less than 2 percent of those murder defendants are going to receive the death penalty. That means that more than 98 percent of victims' families don't get and will not receive whatever satisfaction can be derived from the execution of the murderer. Moreover, if you look at the cases as I have done, both individually and collectively, a killing within the same circumstances might get you 40 years in one county and the death sentence in another county. I have also seen co-defendants who are equally guilty, where one gets sentenced to a term of years, while another ends up on death row.

[Former U.S.] Supreme Court Justice Potter Stewart has said that the imposition of the death penalty on defendants in this country is as freakish and arbitrary as who gets hit by a bolt of lightning.

After the flaws of our death penalty system were exposed, the Supreme Court of Illinois began to reform its rules and to improve the procedures for trying capital cases. It changed the rule to require that state's attorneys give advance notice to defendants that they plan to seek the death penalty, before trial, instead of after conviction. The Supreme Court also enacted new discovery rules designed to prevent trials by ambush and to allow for better investigation of cases from the very beginning.

But shouldn't that mean if you were tried or sentenced before the rules changed, you ought to get a new trial or sentencing with the new safeguards of the rules? This issue has divided our Supreme Court, some saying yes, a majority saying no. These justices have a lifetime of experience with the criminal justice system, and it concerns me that these great minds so strenuously differ on an issue of such importance, especially where life or death hangs in the balance.

What are we to make of the studies that showed that more than 50 percent of Illinois jurors couldn't understand the confusing and obscure sentencing instructions? What effect did that problem have on the trustworthiness of death sentences? A review of the cases shows that often even the lawyers and the judges are confused about the instructions. Cases still come before the Supreme Court with arguments about whether the jury instructions were proper.

As I came closer to my decision, I knew that I was going to have to face the question of whether I believed so completely in the choice I wanted to make that I could face the prospect of even commuting the death sentence of Danny Edwards, a man who had killed a close family friend of mine. Even my wife was angry and disappointed at my decision, like many of the other families are going to be.

I was struck by the anger of the families of murder victims. To a family, they talked about closure. They pleaded with me to allow the state to kill an inmate in its name to provide the families with closure. But is that the purpose of capital punishment? Is it to soothe the families? And is that truly the families' experience?

I can't imagine losing a family member to murder, nor can I imagine spending every waking day for 20 years with a single-minded focus to execute the killer. The system of death in Illinois is so unsure that it's not unusual for cases to take 20 years before they are resolved. Thank God. Because if it moved any faster, then Anthony Porter, the Ford Heights Four, Ronald Jones, Madison Hobley and all the other innocent men that we've exonerated might already be dead and buried.

But it is cruel and unusual punishment for family members to go through this pain, this legal limbo for 20 years. Perhaps it would be less cruel if we sentenced the killers to life in a 6-by-12 cell and used our resources to better serve victims.

My heart ached when I heard one grandmother who lost children in an arson fire. She said that she couldn't afford proper grave markers for her grandchildren who died. Why can't the state help families provide a proper burial?

Another crime victim came to our family meeting. He believed an inmate sent to death row for another crime also shot and paralyzed him. The inmate, he says, gets free medicine, free healthcare, while the victim that he shot struggles to pay his substantial medical bills, and as a result, he has forgone getting proper medical care to alleviate the physical pain that he endures.

What kinds of victim services are we providing? Are all of our resources geared toward providing this notion of closure by an eye for an eye? Closure by execution instead of tending to the physical and social needs of family victims? And what kind of values are we instilling in those wounded families and in the young people? As Gandhi said, an eye for an eye only leaves the whole world blind.

President Lincoln often talked of binding up wounds as he sought to preserve the Union. He said: "We're not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection."

I have had to consider not only the horrible nature of the crimes that put men on death row in the first place, the terrible suffering family members of the victims, the despair of the family members of the inmates, but I have had also to watch in frustration as members of the Illinois General Assembly failed to pass even one substantive death penalty reform in the state! The fact is that the failure of the General Assembly to act is merely a symptom of the larger problem. Many people express the desire to have capital punishment. Few, however, seem to prepare to address the tough questions that arise when the system fails. It's easier and more comfortable for politicians to be tough on crime and to support the death penalty. It brings votes. But when it comes to admitting that we have a problem, most run for cover ... When will the system be fixed? When is it going to be made better? We know that it's worse than 50 percent. How much more risk can we afford? And will we actually have to execute an innocent person before the tragedy that is our capital punishment system in Illinois really be understood? This summer, the United States district court judge held the federal death penalty was unconstitutional and noted that, with the number of recent exonerations based on DNA and new scientific technology, we without a doubt executed innocent people before this technology emerged.

And as I prepare to leave the office of governor, I had to ask myself whether I could really live with the prospect of knowing that I had the opportunity to act but that I failed to do so because I might be criticized.

This week, Mamie Till-Mobley died. Her son, Emmett, was lynched in Mississippi in the 1950s. She was a strong advocate for civil rights and reconciliation, and in fact just three weeks ago she was a keynote speaker at the Murder Victims Families for Reconciliation right here in Chicago. This group opposes the death penalty even though their family members have been lost to some senseless killings. Mamie's strength and her grace not only ignited the civil rights movement, including inspiring Rosa Parks to refuse to go to the back of the bus, but inspired murder victims until her dying day.

Is our system fair to all? Is justice blind? These are important human rights issues, ones that need answers.

In 1994, near the end of his very distinguished career as a Supreme Court justice of the United States, Justice Harry Blackmun wrote an influential dissent in the body of law on capital punishment. Twenty years earlier, he was part of the court that issued the landmark Furman decision. The court decided that the death penalty statutes in use throughout the country were fraught with severe flaws that rendered them unconstitutional, and quite frankly, they were the same problems that we see right here in Illinois. To many, it looked like the Furman decision meant the end of the death penalty in the United States.

This was not the case. Many states responded to Furman by developing and enhancing new and improved death penalty statutes. And in 1976, four years after it had decided Furman, Justice Blackmun joined the majority of the United States Supreme Court in deciding to give the states a chance with these new and improved death penalty statutes. There was great optimism in the air.

This was the climate in 1977, when the Illinois Legislature was faced with the momentous decision of whether to reinstate the death penalty in Illinois. I was a member of that General Assembly, and I voted in favor of reinstating the death penalty. I did so with the belief that whatever problems that plagued the capital punishment system in the past were now being cured. I'm sure that most of my colleagues who voted with me on that day shared the same view.

But 20 years later, after affirming hundreds of death penalty decisions, Justice Blackmun came to the realization in the twilight of his very distinguished career that the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake. He expressed frustration with the 20-year struggle to develop procedural and substantive safeguards. In a now very famous dissent, he wrote in 1994: "From this day forward, I no longer shall tinker with the machinery of death."

Our systemic case-by-case review has found more cases of innocent men wrongfully sentenced to death row, and because our three-year study has found only more questions about the fairness of the sentencing, and because of the spectacular failure to reform the system, because we have seen justice delayed for countless death row inmates with potentially meritorious claims, and because the Illinois death penalty system is arbitrary and capricious and therefore immoral, I no longer shall tinker with the machinery of death.

I cannot say that as eloquently as Justice Blackmun did, but I've got to tell you:

The Legislature couldn't reform it.

Lawmakers won't repeal it.

And I won't stand for it.

I've been asked why I waited for the last 48 hours before I made this decision. There are a lot of reasons, but one was that I wanted to go as far as I could and learn and know as much as I could. But I also thought that I couldn't leave without getting something done. I had to act.

Our capital system is haunted by the demon of error, error in determining guilt, error in determining who among the guilty deserves to die. Because of all of these reasons, I'm commuting the sentence of all death row inmates.

[Applause.] Thank you. As I said earlier, this was a blanket commutation. I realize that my decision will draw ridicule and scorn and anger from many who oppose this decision. And they'll say that I'm usurping the decision of judges and juries and state legislators. But as I have said, the people of our state have invested in me the power to act in the interests of justice. Even if the exercise of my power becomes my burden, I'll bear it.

Our Constitution compels it. I sought this office, and even in my final days of holding it, I can't shrink from the obligations to justice and fairness that it demands. There have been many nights where my staff and I have been deprived of sleep in order to conduct the exhaustive review of this system. But I can tell you this -- I'm going to sleep well tonight, knowing that I made the right decision.

As I said when I declared the moratorium, it's time for a rational discussion on the death penalty. While our experience in Illinois has indeed sparked a debate, we have fallen short of a rational discussion. Yet if I didn't take this action, I feared that there would be no comprehensive and thorough inquiry into the guilt of the individuals on death row or of the fairness of the sentences applied.

To say it plainly one more time -- the Illinois capital punishment system is broken. It has taken innocent men to a hair's-breadth escape from their unjust execution. Legislatures past have refused to fix it. Our new legislature and our new governor must act to rid our state of the shame of threatening the innocent with execution and the guilty with unfairness.

In the days ahead, I'm going pray that we can open our hearts and provide something for victims' families other than the hope of revenge.

You know, Abraham Lincoln was a hell of a guy. He took this state -- and this country -- through the toughest times and the toughest part of our history we've ever known. He was always criticized, the press was always on him. His party was after him all the time. His cabinet was after him. He couldn't do anything right. But he always came up with the right solutions to tough problems. Lincoln once said: "I have always found that mercy bears richer fruits than strict justice." I can only hope with God's help that will be so.

By Salon Staff

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