Shutting Down Death Row

Shutting Down Death Row
Illinois' death-penalty reforms may presage a fairer criminal-justice system.

By Jean M. Templeton
Issue Date: 07.01.04

Change in the criminal-justice system is a rare thing. Change in death-penalty policy is even more rare. Yet Illinois undertook a comprehensive reassessment of its death-penalty system recently, passing reforms that will have far-reaching impacts on how murder trials are handled in the state -- and that could serve as a model for reform in the rest of the country.

Following the review, 11 men were released from death row, and the furor over the death penalty only escalated after the 1999 release of death-row inmate Anthony Porter. Porter had been convicted of a double murder, believed to be a holdup gone bad, in a Chicago park in 1982. A mere 50 hours before Porter's execution, his lawyers made a last-ditch attempt to save him by asserting new questions about his mental competence. His execution was stayed, and in the intervening months, journalism students working in cooperation with a private detective located another man who confessed to the murder. Porter was released.

The case, and the flood of media attention that accompanied it, was enough to raise doubts about the death-penalty system even among death-penalty supporters, including George Ryan, then the Republican governor of Illinois. In early 2000, Ryan took the bold step of declaring a moratorium on executions in the state until a panel of experts, the Illinois Governor's Commission on Capital Punishment, could make recommendations about how the system might be improved. In 2002, after two years of intensive study, the blue-ribbon commission released a report making 85 recommendations for improving the state's capital-punishment system. Late last year, the Illinois Legislature adopted many of the recommended reforms, and current Governor Rod Blagojevich has pledged to continue the moratorium until the reforms' effectiveness can be assessed.

While both prosecution and defense supported many of the commission's recommendations, there were two that proved controversial. The first required videotaping of police interrogations; the second involved changes in lineup procedures to make eyewitness identifications more reliable. Both recommendations were initially opposed by law enforcement, and it took determined advocacy by legislators before they were included in last year's reforms. Now that they are law, they may produce far-reaching effects on the investigation of homicides in the state.

Because we often believe that our eyes don't deceive us, we tend to think that eyewitness accounts of a crime are the very best evidence of what actually occurred. Certainly juries often find it persuasive. Unfortunately, as extensive investigation by psychologists has shown, eyewitness evidence may not be especially reliable. The Illinois commission therefore recommended broad changes in the procedures for police lineups.

In a lineup, an eyewitness to or victim of a serious crime views a group of people or photos at the police station. The crime suspect is among the group, and the witness is asked whether he or she can identify anyone in the lineup. Generally speaking, the law requires that the other people in the lineup bear some resemblance to the suspect's description so that the suspect won't stand out. If the witness or victim identifies one of the group, a report is made of the identification.

Research shows, however, that witnesses often choose the person in the lineup who looks most like the person who committed the crime. In other words, they make a relative judgment. This process may produce a correct identification if the actual suspect is present. But if he or she is not, many people will simply select the person who most resembles him or her. This selection of the wrong person, what social scientists call a "false positive," can lead to the prosecution of an innocent person.

In an effort to eradicate false positives, Iowa psychologist Gary Wells and others have developed an alternative identification procedure called a "sequential lineup." In this procedure, the eyewitness looks at each person in the lineup separately, without observing the others in the group. The eyewitness then makes more of an absolute judgment about that person before observing other people or photos in the lineup. This process reduces the rate of mistaken identifications without substantively reducing the number of accurate identifications.

A majority of the Illinois commission recommended adopting sequential lineups. However, because existing methods had already met with court approval, some commission members had reservations about mandating a procedure radically different from that which was already in place. But one legislator with fairly conservative views on the death penalty argued persuasively for the change.

Representative Julie Hamos, a Democrat, represents a relatively liberal district along the north-shore suburbs of Chicago. Early in her legal career, she served as a policy adviser for the Cook County state's attorney's office, the largest prosecutor's office in Illinois. Chicago Mayor Richard Daley, a conservative law-and-order Democrat, was the state's attorney in those days. Hamos herself supported the death penalty for heinous crimes.

Elected to the legislature in 1998, Hamos represents a district that includes many opponents of the death penalty. Troubled by the number of men released from death row in Illinois and affected by activism among her constituents on the issue, she began to modify her own views. Hamos also came to realize the frailties inherent in eyewitness testimony after conversations with Wells.

In 2002, she introduced a bill to require the use of sequential lineups. Prospects for passage seemed dim. But when the "Report of the Governor's Commission on the Death Penalty" was released in April of that year with a similar recommendation, Hamos renewed her efforts, working quietly among the Democratic leadership to ensure that the lineup proposals were on the table.

The measure failed that year, but as the legislature began its journey toward death-penalty reform in 2003, Hamos persuaded the leadership to include it again. In response to law-enforcement concerns, the proposal was limited to development of a pilot program that would enable the procedures to be tested in several police districts in the state. When that legislation passed in November 2003, sequential lineups were part of the bargain. By July 1, 2004, the Illinois State Police was to have identified three pilot police departments, one of which must be the city of Chicago, in which sequential lineups and photo spreads will be tested. A report on the program's effectiveness will be filed with the Illinois General Assembly by September 1, 2005.

Not every homicide case involves eyewitnesses, however, which often leaves police the task of interrogating a suspect in order to try to obtain a confession. A person's confession of murder is powerful evidence to prove guilt, and under the law it must have been made voluntarily. Where there is some dispute over whether the statement is voluntary, a defendant may seek to prevent the use of the statement as evidence against him or her.

As the debate over the inadequacies of the Illinois death-penalty system evolved, there were those who charged that some death-row convictions were based on confessions that were not true or not voluntary. Final statements in which a defendant confessed had been videotaped in the Cook County state's attorney's office since 1999. While videotaping these confessions has proven useful to demonstrate what the suspect actually said, critics complained that the program failed to capture the questioning process itself, in which undue pressure may be put on suspects to agree with the police version of events. Reformers in Illinois, including the governor's commission, pushed for the videotaping of the entire interrogation process.

Videotaping the process is important because academic studies suggest that there are circumstances under which people will confess falsely. One group known to do so are the mentally retarded, who sometimes confess in order to please authority figures. In 2000, a young Chicago man named Corethian Bell was arrested for killing his mother. Bell, described as mentally ill and borderline retarded, gave a videotaped confession that he had, indeed, killed his mother. Subsequent DNA testing, however, suggested that another man might have been guilty of the crime, and Bell was released from jail and charges against him dropped -- despite his confession.

More troubling are confessions coming from those who may have been unduly pressured or abused. In the late 1980s, complaints began to surface that a group of Chicago police officers, led by then–Chicago Police Commander Jon Burge, had brutalized suspects in order to obtain confessions. The allegations went beyond rough treatment during arrest to claims of systematic torture. Suspects alleged that they were beaten, shocked with electrical currents, and threatened with being shot in order to compel confessions. Although Burge denied the charges, he was fired in 1993 for physical brutality against a suspect. None of the police officers alleged to have been involved faced criminal charges. In 2002, almost 10 years later, a special prosecutor was appointed to look into the allegations. Media reports suggest that the number of possible cases of torture has now risen to more than 100. The special prosecutor's report is expected sometime this year.

Proponents of videotaping interrogations point to these incidents to support their case. Videotaping the entire process, they say, would protect suspects from abuses and police officers from unfounded charges of brutality. Yet in Illinois, the proposal failed to gain wide acceptance among police departments. Officials said it would interfere with police work or that it would be too costly. Bills to implement some form of videotaping of interrogations were introduced in the Illinois Legislature in 1999, but they never got a hearing. The Illinois House revisited the issue in 2001, and it did pass provisions requiring videotaped interrogations, but the bill did not get a hearing in the Illinois Senate. It was not until control of the state Senate changed hands in the 2002 elections that a videotaping bill appeared headed for passage.

Credit for getting the videotaping bill into the final death-penalty package has been largely attributed to state Senator Barack Obama, a Democrat from Chicago. Obama is now running a strong race for the U.S. Senate, which, if successful, would make him the third African American senator since Reconstruction. Elected to the Illinois Legislature in 1996, he is considered an extremely effective legislator. Rather than accept law-enforcement opposition to the bill, he brought law-enforcement officials to the table for discussion, eventually persuading them to drop their opposition.

Illinois thus became the first state in the nation to pass legislation requiring the videotaping of interrogations. The legislation applies to what are called "custodial interrogations" -- those occurring at a police station -- in all homicide cases. The law works by preventing statements made by a suspect from being admitted in a court proceeding unless the statement was recorded electronically. Under limited circumstances, the prosecution may use unrecorded statements in court if they prove that the statement was voluntarily given and is reliable. The provisions represent a significant change from prior law, which permitted the prosecution to use a statement made by a defendant and put the burden on the defendant to prove that the statement was not given voluntarily. Under the new law, the burden shifts to the prosecution to prove that a statement made outside of an electronic recording process was made voluntarily and is reliable.

Provisions requiring electronic recording do not take effect until 2005 in order to allow time to develop procedures governing the recording. In the meantime, legislation was passed to establish several pilot programs throughout the state to record interrogations in murder cases. These programs will help police agencies develop procedures on how videotaping the interrogation process should occur and provide training for police officers in how to conduct videotaped interrogations.

In Illinois, these innovative proposals -- videotaping interrogations and sequential lineups -- apply not only to death-penalty cases but to others as well. While officials were initially reluctant to embrace the proposals, their widespread use will ultimately lead to better documentation of evidence and reduce wrongful convictions of all types. In departments where interrogations are videotaped and initial police resistance overcome, we have seen positive benefits, including a sharpening of police interview skills. Over the long term, police will likely come to appreciate these more rigorous investigative techniques.

Improvements in the death-penalty system have gathered increased support among legislators and the public. The reforms in Illinois passed by a nearly unanimous vote of the legislature. And public-opinion polling in February of 2003 suggests a softening of public attitudes on the death penalty in Illinois, with the percentage of state residents who support the death penalty at 55 percent, which is well below national polling figures.

Meanwhile, DNA testing continues to be carried out, leading to the release of innocent men and women -- more persuasive proof that our criminal-justice system makes mistakes, which is key in promoting death-penalty reform. The recommendations produced by the governor's commission in Illinois have become a standard by which other states have begun to evaluate their own death-penalty systems. In California, for instance, scholars have recently undertaken a systematic comparison of that state's death-penalty process with the Illinois recommendations and have illuminated many weaknesses.

In North Carolina, advocates of a death-penalty moratorium, modeled on Illinois Governor Ryan's, have gained ground with policy-makers. The North Carolina Senate passed moratorium provisions last year, and advocates are seeking approval in the North Carolina House. Public-opinion polling done by moratorium supporters indicates that 63 percent of those polled favor a moratorium on executions in the state pending a review of the death-penalty system. The North Carolina Academy of Trial Lawyers has released its own list of reforms that should be considered during such a moratorium, including a number of the same substantive reforms suggested in Illinois.

The discussion over reforming the death-penalty system, and the successful passage of so many reforms, has led to a broader evaluation of the criminal-justice system in Illinois and elsewhere. Greater scrutiny of death-penalty cases involving wrongful convictions is slowly leading observers to ask whether there are other miscarriages of justice we have yet to uncover in the rest of the criminal-justice system, where cases are given a far less rigorous review. Death-penalty reforms, then, may be a first step on the road to broader evaluation of the criminal-justice system itself.

© 2007 by The American Prospect, Inc.