Coin-Flip Reliability of Illinois' Death Penalty and Now, Revival
In the two decades leading up to the 2000 death penalty moratorium in Illinois, the state executed 12 men while exonerating 13 innocent ones sitting on death row.
Some, including Illinois Governor George Ryan, were troubled by the coin-flip reliability of the system. In 2003, Ryan followed up the moratorium by commuting all death sentences to life in prison without parole. (Only one of my many cases ended in a death penalty - I was a prosecutor in the 1996 Niels Nielsen case.) In 2011, the death penalty was abolished in a rapid and surprising development that caught even those at the heart of the system off guard.
Now, Illinois Governor Bruce Rauner, a pro-abortion Catholic Republican, has included both reinstatement of the death penalty and strict new anti-gun measures in an effort to square the political circle. The initial death penalty qualifiers would be mass murder and killing a police officer, but more would no doubt be added over time. A curious "beyond all doubt" standard has been proposed. (Don't ask me; I don't know either.)
Do not fear, your Bear has not set paws to keyboard to debate the morality of the death penalty in the abstract. He has salmon of a more practical nature to fry.
Why the Death Penalty was Abolished in the First Place
The last execution in the Land of Lincoln took place on March 17, 1999. Andre Kokoraleis, an abominable member of the infamous "Ripper Crew" in Chicago, was executed by lethal injection at the Tamms Supermax, deep in the heart of nowhere, down in southern Illinois. (In a surreal conversation the next day or so at the Alexander County State's Attorney office, I was present as the warden spoke with an almost paternalistic note of approval about how well-behaved Kokoraleis was at the end.)
Southern Illinois has a history of death penalty lasts. In 1928 our colorful local gangster Charlie Birger was the last person hanged in the state.
By the time of the 2000 moratorium, Illinois had spent $800 million dollars in the previous two decades to execute those 12 men. (This is on top of what life in prison would have cost.) Those 13 innocent men had spent a combined 115 years on death row. And there were tens of millions of dollars in settlement money for the wrongfully convicted.
Besides wrongful convictions themselves, Illinois was rocked by Chicago's Commander Burge torture scandal and evidence DuPage County police and prosecutors suppressed evidence favorable to Hernando Cruz in the horrible Jeanine Nicario murder. Brian Dugan had confessed, and when the case was reopened, his DNA linked him to the crime. Cruz was freed, and three prosecutors and four deputies were indicted. They were acquitted of deliberately railroading Cruz. Burge was convicted and spent four years in the federal pen.
When the death penalty was abolished in 2011, I was one of a handful of lawyers on the state payroll charged with assisting defense counsel in these unique and difficult cases. My position was just part of the foundation Illinois had painstakingly laid to guarantee (as much as humanly possible) that past death row scandals would not be repeated.
Some of the fixes were simple. Perhaps one of the most effective was requiring police to tape interrogations in homicide cases. Others, however, were more complex and expensive.
Strict standards of experience and training were established, and lawyers had to be screened and admitted by the Illinois Supreme Court to an elite new Capital Trial Litigation Bar. Continuing legal education requirements were established. A multi-million dollar fund was created to pay for trials. There were not only lawyers’ fees to cover, but the unique multidisciplinary challenge of “mitigation” (providing the jury context for their verdict on the death penalty).
And, there was the unit of which I was a part.
Putting Humpty Dumpty Protections Back Together Again
In 2011, that complex machinery of safety was not put into mothballs. It was nuked. Fund money was reallocated. The cadre of certified lawyers moved on. Death penalty specific training ceased. And the office to which I belonged that trained and assisted lawyers was abolished within weeks.
If the death penalty reforms were Humpty Dumpty, abolition pushed him off the wall in 2011 and all the king's horses and all the king's men haven't even thought about putting him back together again.
Aside from political, constitutional and moral considerations, no debate over reinstating the death penalty in Illinois can be complete without recognizing the significant difficulty, expense and time it would entail. Oddly, this seems to have been missed.
It was easy to abolish the death penalty - and the protections my state had determined were necessary - with the stroke of the very pen that hangs on the Bear's wall as a souvenir, or, perhaps, consolation prize. Recreating all those protections will not be so easy seven years later. It seems unlikely Illinois could return to the relative safety of 2011 any time during a second Rauner term.