“Our capital system is haunted by the demon of error: error in determining guilt, and error in determining who among the guilty deserves to die,” outgoing Illinois Gov. George H. Ryan said on Saturday. “Because of all of these reasons today I am commuting the sentences of all death-row inmates.” And with that, 163 men and four women on the state’s death row were spared.
Ryan might be headed for prison himself — he’s leaving office today, and is under criminal investigation for possible corruption; but he did the right thing here. He did not set those death-row prisoners free (that would have required pardon), only reduced their sentences to life in prison. Now, if DNA or other evidence proves that any of these convicts are in fact innocent, they will be around to be freed. If there are innocents among those 167 inmates, the State of Illinois will not have their blood on its hands.
There is a reasonable chance that some of those Illinois inmates really are innocent, given the gross abuses of justice that have been uncovered in capital cases in recent years. In pardoning four death-row inmates last Friday, Ryan pointed out that the former Chicago detective who extracted confessions from these men was known for using electric cattle prods, suffocation, and beatings to get suspects to admit to crimes — crimes they may never have committed. That detective, Jon Burge, was fired a decade ago after a police internal investigation found it likely that he oversaw the systematic torture of suspects under questioning. A special prosecutor is now investigating Burge, and may bring criminal charges against him.
The four pardons on Friday bring the number of death-row inmates in Illinois set free in the past quarter century to 17. One of them was Anthony Porter, who in 1989 was 48 hours away from execution when journalism students and private investigators obtained confessions from men first identified to police by the victim’s mother. Porter was set free. Information on twelve other cases in which innocent men were set free from the state’s death row can be found here.
This is the context in which to understand Ryan’s controversial action. For even more context, read this remarkable essay recently published in The New Yorker; the lawyer and novelist Scott Turow wrote about how his two years of work on a panel Ryan appointed in 2000 to study the Illinois death penalty turned him from a capital-punishment supporter to a reluctant opponent.
Turow is not a bleeding heart, nor a man who believes the death penalty is immoral in principle (neither, by the way, am I; I would go so far as to theoretically support the death penalty for child rapists). But Turow is also a man who believes, as I do, that capital punishment in practice is so fraught with systemic error and injustice as to make it intolerable in our society. Turow recounts how personal experience with gross prosecutorial misconduct in capital cases helped change his mind. What he reports is chilling evidence of how garden-variety human corruption — coerced confessions, suppression of evidence, lying on the witness stand — can send a man to his state-sanctioned death.
There is also the possibility that an impoverished defendant will suffer from a lousy case mounted on his behalf by an inept public defender. And there is no question that there are disparities related to race, geography, class, and other factors that result in some convicted first-degree murderers going to death row, and others to prison. (For a list of factors involved in the death-penalty convictions of inmates later exonerated by DNA testing, go here). It should make all of us squeamish to realize that under the present system, the ultimate penalty — death — is dealt with such relative arbitrariness.
If capital punishment deterred capital crime, it would be harder to oppose it, but the evidence suggests it has no effect on the murder rate. I agree with Turow that the best case for the death penalty is that some crimes are so horrific that execution is the only morally appropriate response, particularly to satisfy the families of the victims. Yet outrage over a particular crime, and sympathy for suffering survivors, though both are deeply human and worthy sentiments, still don’t banish the question: What if police have the wrong man?
Think about Joyce Gilchrist, a police chemist in Oklahoma City. Over the course of 14 years, prosecutors won hundreds of felony convictions based in part on her expert testimony. She came under fire several years ago from the FBI for sloppy forensic work, and in 2001, a judge released a man who had been in jail for 15 years on a rape conviction; an independent lab showed she had gotten the analysis wrong. Lucky guy: He could still go home. Not so lucky, perhaps, are the eleven men in Oklahoma are now dead, executed by the state after convictions won in part with Gilchrist’s expert testimony. Eleven others sit on death row, thanks in part to her work. In August 2001, one death sentence was stricken by Oklahoma judges because of Gilchrist’s tainted testimony. The state fired her that September, and last summer, confidential preliminary results of a state investigation into convictions she’d worked on were delivered to the governor.
Is it so important to make a statement by killing at least some murderers that we are willing to live with the possibility — the inevitability — of putting an innocent man to death? Because that’s what we have, and always will have, as long as capital punishment exists. In its April 2002 report, Turow and his colleagues concluded: “The Commission was unanimous in its belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.” (So what? say many conservatives; Jeff Jacoby puts that case powerfully here.)
There are some places in the world where the death penalty is practically necessary, because governments and societies lack the facilities or ability to ensure that society will be protected from convicted killers. Ours is not one of them. We now have something called a “supermax” prison, which are reserved for the most-violent and -dangerous inmates. For inmates, they are like living death. Inmates are kept in total isolation for 23 hours a day inside their solitary cells, and allowed to walk around for fresh air for one hour. Everything is done by remote control.
Why couldn’t we abolish the death penalty, and use the money saved on the expensive death-penalty appeals process (which takes eleven years to complete, generally) to incarcerate those found guilty of first-degree murder at supermax facilities, without benefit of parole? The American Civil Liberties Union and several human-rights organizations denounce supermax prisons as cruel. It seems to me, though, that if you have been found guilty of first-degree murder, you deserve to die; being left alive in a supermax jail, or some lesser version of same, is a mercy you aren’t owed, but are graciously given. And if you are truly innocent, until your natural death there is always the possibility some evidence will be uncovered that can spring you.
That would not be a perfect system — you can never give an innocent man back the years he spent in prison — but it would serve the purpose of protecting society and punishing the convicted while avoiding the grievous moral stain brought on by executing the wrongly convicted.