Until a month ago, Chicago lawyer and best-selling author Scott Turow chalked up the chatter about repealing Illinois’ death penalty to “the eternal optimism of the abolitionists that they were ‘close.’ ”
Then a legislator asked Turow, a partner at SNR Denton and a death penalty critic himself, to call other lawmakers. “In one of those conversations, I realized this actually might occur,” Turow said.
It might very well. On Jan. 11, the Illinois Senate passed a repeal measure by a 35-22 vote, five days after the state house approved the measure, 60-54. Gov. Pat Quinn, a Democrat, is weighing whether to sign or veto the bill, with his timetable and ultimate decision uncertain. But death penalty opponents are already allowing themselves to contemplate that a major Midwestern state, not known as light on crime, is about to take a dramatic stand against the death penalty.
“This is the state people were watching for a long time,” said Richard Dieter of the Death Penalty Information Center, which opposes capital punishment. “It’s a turning-point state. It’s not the South, but not New England either. It’s middle America.”
The other states that have ditched the death penalty recently — New Mexico in 2009, New Jersey in 2007 and New York (by court ruling) in 2004 — were not actively executing inmates beforehand. But Illinois executed 12 people since capital punishment was reinstated in 1976.
Not that Dieter expects Illinois to set off an abolition avalanche across the country. He noted that there are still more than 3,200 people on death rows in the United States, and states such as Texas and Mississippi are still defiantly immune from pressure to end capital punishment. Kansas and South Dakota rejected abolition measures last year.
But the news from Illinois is crucially important nonetheless, said Shari Silberstein, executive director of Equal Justice USA, a grassroots group against the death penalty. “Illinois was in many ways a catalyst for changing the conversation about the death penalty” nationwide, she said.
For the past decade, most of the arguments in the death penalty debate have played themselves out in Illinois. In 2000, Gov. George Ryan declared a moratorium on executions, humbled by the number of death row inmates who were being freed on new evidence of innocence — much of it dug up by students at Northwestern University. Two commissions looked at the capital punishment system, and the legislature enacted reforms. But exonerations continued, and now the legislature has, in effect, thrown up its hands.
“Illinois tried to make the system work, and decided it could not be fixed,” Silberstein said. If that is the lesson drawn from Illinois’ actions, she said, then other states may also decide the death penalty is not worth saving.
Other factors were at work in Illinois as well, Turow said. “With the state $15 billion in debt, we simply can’t afford a remedy with no proven benefit that can double or triple the cost of prosecution.”
The higher litigation costs caused by lengthy death penalty appeals have enabled legislators in other states as well to frame it as a practical, economic issue and to avoid the moral dimensions.
In addition, Turow said, the Illinois murder rate has dropped since the moratorium, “putting the lie to the canard that the death penalty is a general deterrent.” He added, “The voting public seems to have realized that there is no magic about having a death penalty. The world does not seem any worse” without it.
Jenner & Block litigation co-chairman David Bradford, who has represented Illinois inmates with innocence claims, agreed that “the sky has not fallen,” crediting the moratorium as helpful in getting legislators to vote for repeal. But the drumbeat of innocence claims and exonerations may have been the most powerful factor, said Bradford, who is also counsel to the Roderick MacArthur Justice Center, which litigates and speaks out against the death penalty.
“The economics of it are secondary to the fact that there are so many innocent people on death row,” Bradford said.
Death penalty supporters don’t see Illinois as a harbinger of major change in the capital punishment landscape.
“There were unique considerations in Illinois,” said Kent Scheidegger, executive director of the Criminal Justice Legal Foundation. “They had a much worse problem with exonerations” than other states, he said. And legislators approved the repeal bill “on their way out the door,” he said, toward the end of a lame-duck session that was focused mainly on the state’s severe budget crisis.
In a letter sent on Jan. 12, Scheidegger urged Quinn not to sign the repeal bill. Invoking the names of infamous Illinois murderers, Scheidegger wrote, “There are killers of monstrous evil and undoubted guilt for whom any lesser penalty would be a travesty. Would it be right for John Wayne Gacy to be grinning at us from his prison cell to this day?” Gacy was executed in Illinois in 1994 for the rape and murder of 33 boys and young men between 1972 and 1978.
Scheidegger’s plea to the governor may work, but death penalty opponents argue that capital punishment is not the potent political issue it once was.
“It’s not an automatic third rail to oppose capital punishment anymore,” said the death penalty center’s Dieter. “There is more of a sense that it is a fair question to ask whether it works anymore.” Even some conservatives, distrustful of government in other spheres, are signing on to abolition. “Conservatives don’t trust the government as always capable, competent, or fair with far lighter tasks,” wrote Richard Viguerie of ConservativeHQ.com and Brent Bozell III of the Media Research Center in an op-ed column last fall.
Meanwhile, signs are growing that executions are declining nationwide without legislative repeal. The number of executions dropped by 12% last year from 2009, according to the death penalty center, and death sentences have been at historic lows for the past two years. Last year, only 114 defendants were sentenced to death nationwide, and none at all in Georgia, Indiana, Missouri and Virginia. Even in Texas, the number of new death sentences was relatively low: eight last year, compared to 48 in 1999.
Thirty-five states now have the death penalty on their books, but Silberstein asserted that in many, it is rarely if ever carried out — and even in active states, it is imposed in only a few counties.
“Most of the United States does not have the death penalty, effectively,” Silberstein said. “Americans are getting used to living without it.”
Tony Mauro can be contacted at firstname.lastname@example.org.