Public Defense

IL committee proposes serious reforms to the death penalty

By Gideon

The Illinois Capital Punishment Reform Study Committee has published its 6th and final report on changes to the death penalty – both in substance and procedure – in Illinois. The Committee, established in 2003 was charged with studying reforms to the death penalty in IL over 5 years. In 2008, its tenure was extended a year. Every year, the committee has issued a report, this being the final one. From the NYT:

The report found that taxpayers spend huge sums on prosecution of an inordinate number of death-penalty cases, though we?ve seen 18 death sentences since 2003; that prosecutors seek the penalty as a bargaining ploy in pursuit of a lesser guilty plea and sentence, and that $64 million has been spent on civil damage awards to men whose death row convictions were reversed.

One of the recommendations of the committee is to conduct a comprehensive cost study. One of the committee members, however, has done some digging of her own. Leigh B. Bienen, a senior lecturer at Northwestern University School of Law, has a forthcoming law review article in which she details the high cost and financial incentives of retaining the death penalty:

Since 2000, she learned, $100 million in taxpayer money has been spent via the Capital Litigation Trust Fund. That honey pot was meant to ensure defense counsel in capital cases, especially in places where public defender offices aren?t staffed adequately and must enlist private lawyers. But prosecutors made sure that the fund would also pay for their often-ample nonsalary expenses, including those for investigators, not just for private defense counsel and the nonsalary expenses of public defenders.

…

St. Clair County has a per-capita murder rate of 13.36 per 100,000 citizens, and it prosecuted 17 capital cases from 2000 to 2008. By comparison, DuPage County, with a per-capita murder rate of 0.93, prosecuted 21. Madison County, with a rate of 4.24, prosecuted 18, while Sangamon County, with a rate of 4.59, prosecuted 3. How about this: Jefferson County got $2.5 million to prosecute 2 capital cases ? neither wound up in a death sentence ? while Macon County got $943,858 to prosecute 14. Cook County is the state?s homicide champion, accounting for 75 percent of murders, and consistently charges murders as death penalty cases, triggering the state payments to both sides. But the county brings few capital cases to trial, often procuring a plea to a lesser charge.

…

So we don?t get retribution, deterrence or rehabilitation but, instead, inducements to pursue capital cases. Counties get a virtually bankrupt state to pick up a fat tab and ?to maintain a very expensive and dysfunctional system of capital punishment,? Mrs. Bienen wrote.

According to this editorial:

Illinois spends $20 million a year to prosecute and administer capital cases, according to the Illinois Coalition to Abolish the Death Penalty. The Capital Litigation Trust Fund, which pays for legal appeals in death penalty cases, has cost $100 million since 2003.

One final point on cost: in Connecticut there are no reliable numbers on the cost of the death penalty. This isn’t because we’ve forgotten how to count (although the Gov’s race fiasco might suggest that), rather because the state’s attorneys and the judicial branch do not keep track of how much they spend on capital cases. The only agency that does is the public defender’s office. If that doesn’t tell you something, read this excellent piece in the Hartford Courant by business columnist Dan Haar, who crunches the numbers and concludes that the death penalty is a damn waste of money. There are several noteworthy recommendations and you can find the one that interests you the most by perusing Tab 1 of the Appendix, but I want to point out a couple.

First, the report suggests that prosecutors and defense attorneys meet and negotiate prior to the prosecutor’s decision to seek death. This, they say, would give the defense an opportunity to provide some mitigation upfront in an effort to convince the prosecutor not to seek death to begin with.

Second, the report recommends that the aggravating factors that make an offense eligible for the death penalty be reduced from the now astronomical and highly confusing twenty-one, to just five or six.

Third, focusing on the power of the courts, trial judges should be given the authority to overturn death verdicts and impose a sentence of life without the possibility of release; and quite interestingly, the report also urges the Supreme Court of Illinois to engage in a proportionality review of all death sentences to investigate whether there is a geographic and racial disparity in the imposition of the death penalty – something that had been noted by Gov. Ryan’s committee, but which the current committee found there was insufficient data on which to make a finding. In Connecticut, there is litigation pending on the question of racial and geographic disparity, but notably the legislature has eliminated proportionality review as a function of our supreme court.

Finally, the report also recommends that the decision to seek death be subject to review by a statewide committee, sort of like in the Federal system. This, the report concludes, would serve to prevent an arbitrary and biased application of the death penalty and would permit application of the guidelines imposed by the State’s Attorney’s Office in the charging decision. This statewide committee would have veto power over the decision to seek – or not to seek – death.

Some of the other recommendations:

• That all interrogations of homicide suspects be taped
• That all identification procedures be taped
• That all identifications be done in a “blind, sequential” manner.
• Jury instructions regarding “snitch” testimony and defendants statements.

The report is comprehensive and seems to point to one thing: the death penalty is fraught with problems, both in substance and in application, and no matter how much we try to tinker with it, it will always result in injustice in some form or another and, of course, monumental cost to the taxpayers.

While the report explicitly states that it was not tasked with recommending whether the death penalty should be maintained or abolished, it is hard to come away with any other conclusion after reading the report. The death penalty’s broke and we can’t fix it.

H/T: ACS

Full post as published by A Public Defender on November 17, 2010 (boomark / email).