February 22, 2002

Is the death penalty worth it?

The death penalty has come to the forefront of the public consciousness over the last few years, particularly with Governor George Ryan's decision to institute a moratorium in Illinois in January 2000. This debate spans more than simply the legal issue; it is evidence of how our present society thinks about religion, politics, and law.

In the case of Illinois, the evidence seems stacked against the death penalty. According to the Illinois Department of Corrections, since June 21, 1977, when the death penalty was re-established by Public Act 80-26, 286 inmates have been admitted to the Condemned Units division of the corrections department. Of the 286, 99 have had their sentence reversed, two have had their sentence reversed and been discharged, and 12 have been executed. If one were to believe that it is wrong to execute even one innocent man, the death penalty is flawed enough that it could happen without public knowledge.

According to the Illinois Campaign to End the Death Penalty, 13 men have been released after having been threatened with the death penalty. Most of these men never actually entered the Condemned Units division. Many of these men claim to have been forced into giving confessions as a result of police brutality.

Then there are the Death Row 10, now numbering 12, who are current death row inmates who say they were the victims of police torture under Commander Jon Burge. Burge was fired from the police force for his unorthodox interrogation tactics, which reportedly included suffocating, beating with objects such as telephone books, and the use of shock devices such as cattle prods. Take the example of Ronald Kitchen, a member of the Death Row 10, who was picked up on his way to the store and sent to the Area Three interrogation room on July 5, 1988. An officer came into the room and hit him with a blackjack and a telephone book. It took three months of medical treatment for Kitchen to recover from his injuries. He was indicted on the testimony of Willie Williams, who said that Kitchen had confessed to him, supposedly in exchange for a lighter sentence. Kitchen has recently won an appeal from the Illinois Supreme Court, which may lead to further inquiries into his case.

The number of claims of police brutality that are legitimate cannot be known for certain. The average time in Illinois from admission to death row to execution is 13 years. This time on death row is often a result of the appeals process. In one case, Anthony Porter was just 50 hours away from execution when he won a reprieve from the Illinois Supreme Court. The court granted the reprieve on the grounds that Porter had such a low I.Q. that he did not understand why he was to be executed. It gave Northwestern University Professor David Protess and a group of his students time to investigate the case. Eventually, they were able to gather evidence that led to Porter's release.

Unjust convictions are often investigated with minimal resources and expertise, Gary Gauger's 1993 conviction for the murder of his parents was not overturned by a legal aid organization or pro bono lawyer, but by a professor of ethics at Northwestern University. "At the time Larry [Marshall] didn't have any time for death penalty cases, but he could see something was really fishy here," Gauger said when interviewed at the recent anti-death penalty rally at the Hyde Park Church. The question remains: should the investigation of unjust convictions be left to those who have little time to pursue them? There may be people unjustly convicted incarcerated now who are only left to hope for some altruistic citizen to take their case. Is this how justice is pursued?

In a state like Oklahoma, the situation is different. In the recent Pew Forum conference on religion and the death penalty, Governor Frank Keating discussed a trip to Ireland to participate in a forum on the death penalty. Keating used Ireland as an example of the differing criminal justice systems in Europe and the United States. The United States has significantly higher violent crime statistics than most European nations. "There were 40 murders in Ireland [during that year]," he said, "we had 60 just in Oklahoma City."

Keating also identified practical problems in keeping violent inmates away from the general public. Often inmates are able to gain parole through holes in the justice system. He said the Oklahoma state had built a containment building to retain those convicted of violent crime, but costs were high, and tax payer dollars were wasted trying to hire people to police the building.

The case of Timothy McVeigh, who was convicted and executed for the Oklahoma City bombing that killed 169 people, stands at the dividing line between those who support and oppose the death penalty. According to Barbara Wilkinson, the federal prosecutor for the McVeigh case, most people look at the case as not a relevant example to prove the use of the death penalty because it is so extreme. Wilkinson, who also spoke on the Pew Forum pannel, tried to prove the contrary.

"Of course we're all opposed to [the death penalty] when it doesn't work," said Wilkinson at the forum. "But when the defendant is well represented, [as McVeigh] was, it is just, it is moral…I felt no regret in participating," she said. "Even as a Christian, I felt nothing for Mr. McVeigh."

According to Wilkinson, who has considerable experience as a prosecutor in capital cases, the frequency of defendants who are misrepresented and are innocent is scarce. "In 99 percent of cases, there is no question of guilt," she said.

On the federal level, there is support for the death penalty as it is enacted in the different states. Justice Antonin Scalia said that he as such did not take a position on the death penalty. "The legislatures in all the 50 states may choose to uphold or abolish the death penalty as they wish," Scalia said.

Scalia said that he did not personally find the death penalty to be immoral, due to his religious convictions. Quoting St. Paul from Romans 13:4, Scalia said he believed that the government derives just powers from God that are not necessarily relegated to the individual. "He [the magistrate] beareth not the sword in vain; for he is the minister of God," Scalia read.

Former U.S. Senator Paul Simon, speaking at the Pew Forum conference, said that he believed capital punishment to be unwise. He pointed out that all our neighboring civilized nations had abandoned the death penalty, including all of Europe, Canada, and Mexico. Moreover, he suggested that capital punishment in the United States is slanted against the less affluent classes of society and those without basic education. Simon pointed out that since 1977, 35 retarded people — those who have an I.Q. measured below 70 — have been executed. In Simon's view, capital punishment is fundamentally racially biased, and evidence of the problems with race that have existed in the U.S. since the institution of slavery. "If a victim is white, [the defendant] is 4.8 times more likely to get the death penalty," he said. Simon also expressed concerns over the cost of the death penalty. He gave the statistic that over the last two years, the criminal justice system has doled out $800 million more for capital defendants than for those who face only life imprisonment without parole.

Despite the doubts that Simon had raised about the effectiveness of the death penalty, Justice Scalia professed his faith in a justice system that is correct in its ruling most of the time. "I don't think you can judge any criminal justice system on the basis that it make a mistake now and then," he said.

The legal issue remains: is it possible and moreover practical to reform the death penalty? Currently, the Illinois Death Penalty Education Project (DPEP) has a list of 12 reforms it sees as beneficial and feasible. These include establishing a eyewitness identification protocol for eyewitness testimony, videotaping confessions, and funding an independent forensic laboratory.

Illinois has made progress in making the wheels of justice sharper and more efficient. The general assembly has taken measures to answer the lack of adequate defense counsel for capital cases. The recently enacted Capital Litigation Trust Fund made $20 million available the defense and the prosecution in capital cases. Also, the Illinois Supreme Court now has a capital litigation trial bar which imposes standards of competence on those lawyers who take capital cases.

According to Locke E. Bowman, the legal director of the MacArthur Justice Center at the Law School, there are problems in any attempt to reform the system. The judge may, for example, refuse to allocate funds from the Trust Fund when the request is made. "The only thing you can do to eliminate the possibility that an innocent person will not be executed is abolish the death penalty," Bowman said, "[Reforms] will reduce the risk, but they won't achieve certainty."

Whether or not race is linked to death penalty is an enduring debate. According to DPEP, two-thirds of death row inmates are black or Hispanic. Blacks make up 14 percent of Illinois's population, but over 60 percent of Illinois's prison and death row populations. At the recent celebration of the moratorium at the Hyde Park Church, Jesse Jackson argued that the death penalty is equal to slavery in its targeting of blacks and minorities. In his view, the death penalty is inherently flawed. "They really couldn't fix slavery," said Jackson.

In many cases, murders of black people are not treated with the same legal gravity as those of white people. The Southern Methodist University death penalty site reports that of the 700 people that have been executed since 1977, 80 percent of the cases involved a white victim.

There seems to be no real consensus about the death penalty among religious leaders. According to Cardinal Avery Dulles, who spoke at the Pew Forum conference, retribution is the principle purpose of government. On the other hand, Jackson used the Bible to discredit capital punishment, citing the parable of the woman who was to be stoned for adultery but was saved by Jesus.

Professor J. Budzizewski of the University of Texas, in his speech at the conference, argued that our whole notion of the respect for human life may be at stake. "The rights of the guilty and the innocent are not the same. It is the abolition of capital punishment that may cheapen life," he said.

It is apparent, in review, that if the death penalty must be carried out in Illinois and in the U.S., it must be continually reviewed and examined by concerned citizens, professors, and civil action groups. So far, only these people have been able to make strides to reconcile the inadequacies of a decidedly human justice system.

Andrew Lamb is a third-year Political Science concentrator.