Update: Senate Bill 3539 passed a House committee this morning and is expected to be called to a full floor vote later today. November 30, 2010 The Illinois State Bar Association respectfully requests that you support Senate Bill 3539 (Yarbrough, D-Maywood). This bill would end Illinois’ failed experiment with the death penalty. The death penalty is an expensive and ineffective use of scarce resources. From 2003 to 2010 more than $100 million has been appropriated to pay just for the prosecution and defense costs alone. Nor is the death penalty necessary to protect us—Illinois judges already have the authority to sentence capital defendants to natural life without parole. Now that we’ve passed the 10^th anniversary of the death-penalty moratorium, let’s review Illinois’ history with the death penalty. Illinois history. The Supreme Court of the United States struck down the death penalty in 1972 as unconstitutional because it was arbitrary and capricious. Those legal words of art meant that the death penalty was a legal crapshoot; some defendants get death while others did not. But the death penalty was reinstated in 1976 with the help of Justices Harry Blackmun, Lewis F. Powell, and John Paul Stevens, all of whom later publicly regretted their roles in doing so. Illinois reestablished the death penalty in 1977 with seven eligibility factors. The General Assembly has since increased that number to 21. From 1977 to 2000, Illinois has executed 12 inmates but freed 13 from Death Row. (Since 1997 Illinois has paid out $64 million for civil damage awards to death row inmates who were wrongfully convicted and for the legal costs to defend those suits.) One of them, Anthony Porter, was released from Death Row after coming within 48 hours of being executed. This prompted Governor George H. Ryan to impose a moratorium on executions on Jan. 31, 2000 until a comprehensive review of the Illinois death-penalty system could be done. Two years later the Ryan Commission issued a detailed report containing 85 recommendations to improve Illinois’ death-penalty system. Less than half of those have been implemented by legislation, rule, or practice. Governor Ryan then commuted the sentences of 167 Death Row inmates because he believed that the death penalty system was broken and couldn’t be fixed. In the 10 years since the moratorium was imposed, Illinois has released seven more inmates from Death Row; only Florida has released more exonerated defendants. Currently there are 15 people on Death Row in Illinois. With this historical background, a recent poll of Illinoisans indicates that not only is there a lack of support for the death penalty, a majority of those polled didn’t even know that Illinois had a death penalty. The poll findings were as follows:

• More than 60 percent of voters prefer a sentence other than death for murder. Voters chose life without parole and restitution for victims’ families over the death penalty.
• Voters want funds redirected towards stronger crime fighting efforts rather than death penalty spending. The $12-$15 million annual cost to prosecute and defend death penalty cases despite a moratorium prompted voters to support life without parole by a 2-to-1 margin (64%-30%).
• Voters are unaware Illinois even has the death penalty. Only 39% of voters were aware the state has a capital punishment option; 61% of voters did not know.

Our opposition. The 201-member policy-making Assembly of the Illinois State Bar Association voted to support efforts to abolish the death penalty in June of 2008. Our members expressed a variety of reasons for their opposition: it doesn’t work; it can’t be reformed to ensure that innocent people are not executed; it’s incredibly expensive; it’s an awful experience for victims’ families to go through the lengthy hearings and appeals; it puts us on the wrong side of history with very few other countries; it’s immoral under the religious beliefs of some of our members; and it continues to be a legal crapshoot on who gets executed and who doesn’t. We found it significant that last October the 4,000 judges, lawyers, and law professors of the American Law Institute walked away from any further efforts to reform the death penalty system. The American Law Institute provided the legal framework for the states that reinstated the death penalty in 1976 but now believes that the death penalty in this country is irretrievably broken and all efforts at reform are futile. When Justice Stevens abandoned his support for the death penalty, he reviewed the reasons the Court used in 1976 to justify reinstating it: incapacitation, deterrence, and retribution. In 2008 he asked if these reasons were still valid 30 years later. He thinks not, and we agree, for these specific reasons: Incapacitation is essentially the public-safety argument; unless we kill some defendants they will kill again. As noted earlier, judges may—and do—sentence defendants to natural life without parole. And, if the Illinois Department of Corrections believes that an inmate may be a threat to other inmates and staff, the inmate can be sent to the supermax prison at Tamms, Illinois. Inmates at Tamms are incarcerated 23 hours a day in a 7-by-12-foot cell with one hour of exercise alone in a steel cage. The recent polling indicates that the public believes that a sentence of life without parole is an adequate substitute for the death penalty. We agree. Deterrence is undermined by the fact that the murder rate in Illinois has actually gone down since the moratorium began. States with the death penalty have consistently had a higher murder rate than states without the death penalty. As Justice Stevens wrote, “Despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.” Retribution is the feeling that horrible murderers—the worst of the worst—should be punished in kind. That’s certainly understandable for the community or the victim’s family to feel that way. Unfortunately, the legal crapshoot continues on which equally culpable defendants get the death sentence and which do not. The Chicago Tribune, Daily Herald and State Journal-Register have all penned editorials lamenting this unpredictability. The Daily Herald asks, “Who can deny that in these cases the difference between death and life comes down, frankly, to luck?” The Tribune states that “Who gets a sentence of life and who gets death is often a matter of random luck, of politics, of geography, even a matter of racism. Mistakes can occur at every level of the process.” Or as the State Journal-Register editorial concludes in its editorial in support of abolition of the death penalty: We believe the real problem with capital punishment is that it is meted out as an act of revenge, not an act of justice. It is not delivered uniformly according to criminal codes, but by the caprice of individual juries. That’s why Brian Dugan can be killed by the state but the Brown’s Chicken massacre killers and Maurice LaGrone can’t. (LaGrone got natural life without parole for killing three kids under the age of six in McLean County in September of 2003.) Our justice system can never define “the worst of the worst.” It can’t codify revenge. Illinois, which sent 13 innocent people to death row in less than 14 years, can never guarantee it won’t happen again. As our moratorium on executions nears its 10-year anniversary, it’s time for Illinois to recognize this and formally abolish capital punishment. This is also a good time for Illinois to discard the reform-it-don’t-abolish-it argument as unrealistic. When the American Law Institute walked away from the death penalty last October, its report noted that the views of Professor Joseph Hoffman from Indiana Law School had considerable influence on them. Professor Hoffman, who is not a death-penalty opponent, spent considerable time in Illinois in 2001-2002 as an expert witness trying to improve our death-penalty system, and the experience apparently changed his views. The ALI report noted: He (Hoffman) strongly expressed the view that seeking reform of capital punishment in the political realm is futile. This is a striking position to take by one who is not morally opposed to the death penalty and who has worked on numerous reform projects. But Hoffman cited as grounds for his change of heart the example of Illinois, in which there were confirmed wrongful convictions in capital cases, a sympathetic Governor and a bi-partisan reform commission, but still strong resistance in the state legislature to reforms specially targeted at capital punishment. To paraphrase Justice Stevens’s 2008 opinion, parts of this country hang on to the death penalty not because of “an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits.” Rather, we hang on to it because of “habit and inattention" and "in part because of a faulty assumption about its retributive force.” We agree. The death penalty experiment will always be arbitrary and capricious and needs to be abandoned now. Thank you.