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In light of the U.S. Supreme Court’s two recent precedent-setting death penalty rulings — that defendants have a right to have a jury decide on capital punishment, and that mentally retarded defendants may not be executed — this is an appropriate time for each state to re-examine its capital punishment system. This process has just been concluded in Illinois. In 1999, Anthony Porter, who had been 48 hours from execution, was released from prison when new evidence established his innocence. Within a few months, three more defendants on Illinois’ death row were released, bringing the total of condemned-then-released Illinois defendants to 13. As a result, Governor George H. Ryan halted further executions and appointed a citizens’ group to study the Illinois capital punishment system and make recommendations for the fair and just administration of the death penalty in Illinois. The commission produced a report recommending crucial reforms to the criminal justice system. These proposed reforms, as well as the process of study undertaken by the commission, are models that other state governments should follow. The governor’s commission consisted of 14 members, chosen from different parts of the state, and comprised of lawyers and lay people. The members brought many decades of intimate working knowledge of all aspects of the criminal justice system. They included current and former prosecutors, a police official, two public defenders, a private citizen whose father had been murdered and a member of the governor’s administration, as well as a former U.S. senator and federal judge. The commission’s special advisor, William Webster, had been a U.S. Attorney, federal district court judge and director of the CIA and of the FBI. The commission devoted two years to a comprehensive study of the Illinois capital punishment process. We analyzed opinions in the several hundred Illinois capital cases. We interviewed police, prosecutors, defense lawyers, judges, academics, victims’ families and most of the 13 released defendants. We employed statistical experts to analyze whether factors such as race, location or other factors were involved in the selection of cases for capital punishment. Our study revealed a system in Illinois that is desperately in need of repair. Many of the cases were shocking. Almost all of the 13 cases that had earlier resulted in release were based on questionable evidence, some so minimal that commission members were at a loss to understand why the prosecutions were pursued at all, much less why the death penalty was sought. We also found evidence of racial and geographic discrimination. The appellate reversal rate in Illinois capital cases during the past two decades has exceeded a whopping 60 percent. While many pundits argue that such reversals are typically on technical grounds, the commission’s experience revealed the opposite. The errors ran the gamut: prosecutorial misconduct, inadequate defense counsel, mistaken evidence rulings and jury instructions. The commission’s April 15, 2002, report (www.idoc.state.il.us/ccp)contains 85 recommendations addressing every aspect of the Illinois criminal justice system, from police investigations to post-conviction proceedings. The report is a call for triage to stanch the extraordinary rate of errors, reversals and mistaken convictions in capital cases. It is a sobering wake-up call for every state with a death penalty. The Illinois experience is not unique. Recent studies have shown that similar problems pervade the capital punishment systems in many states. Federal and state officials and citizens nationwide, as well as the American Bar Association, have called for moratoria on further executions and the appointment of panels similar to Illinois’. Maryland Governor Parris N. Glendening has recently done just that. The commission’s recommendations are applicable to other jurisdictions; many may be implemented without legislative action. The report provides numerous, detailed, practical suggestions for reform, such as state court guidelines for training and certification of prosecutors, defense lawyers and judges who try capital cases. Other reforms may pertain, for example, to permitting depositions, pretrial case management, expert testimony on eyewitness fallibility, improved jury instructions and pretrial hearings as to the admissibility of jailhouse-snitch testimony. State supreme courts may undertake to review the racial, geographic and overall “proportionality” of the application of the death penalty and adopt rules for the collection of data in all capital cases. State and local police departments can adopt rules concerning police training, including pursuit of exculpatory leads, providing prosecutors with complete records of the evidence and new rules requiring videotaping interrogations and the use of a sequential lineup/photospread procedure. A number of the commission’s recommendations require legislative action, such as the paring down of the factors for which capital punishment may be imposed, creation of a statewide review body empowered to override prosecutors’ decisions to seek the death penalty and the creation of a statewide DNA laboratory. State governors may assist in obtaining the necessary funding for the reforms, establishing death-penalty review committees and commuting death sentences in cases not submitted to the committees. Regardless of one’s views about capital punishment, we can all agree that its imposition should be fair, just and accurate. But this requires a nationwide commitment. The findings of the Illinois commission provide a well-researched guide for reforms. Thomas P. Sullivan is a partner at Chicago’s Jenner & Block www.jenner.com, where he focuses his practice on civil and criminal trial and appellate litigation. He served on Illinois Governor George H. Ryan’s Commission on Capital Punishment.

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