"You Can’t Fix The Death Penalty"

A Death Row Lawyer Analyzes The Illinois Commission Report

Charles Hoffman

Charles Hoffman is a defense attorney in Chicago with numerous clients on Illinois death row, and an activist who sits on the board of the Illinois Coalition to Abolish the Death Penalty. In April, he spoke at a meeting organized by the Campaign to End the Death Penalty about the report issued by Governor George Ryan’s commission to study the Illinois death penalty. Here, we excerpt his remarks.

Everybody knows that since the reinstatement of the death penalty here in Illinois, we’ve executed 12 people and we’ve exonerated 13. Based on that shocking figure, two years ago, the governor declared a moratorium.

He decided the system was so badly broken that he had to appoint a commission to see if the system could be reformed, to see if it could be fixed, to see if it could guarantee that no innocent person ever faced execution again in Illinois. This commission was made up of people who were in favor of the death penalty, people who opposed the death penalty, people who had no opinion on the death penalty -- prosecutors, defense lawyers, businesspeople, a former U.S. senator, a retired judge.

They worked for the last two years and just issued their report. The report is 207 pages long, with a whole bunch of appendices -- and it has 85 specific recommendations about improvements that can be made to the death penalty process.

There’s a lot of good stuff in this report -- some really good suggestions on how to improve the criminal justice system. Ideas on how to have more objective lineup identifications, so that police officers don’t suggest to people who they should pick out of lineups. Videotaped interrogations, so that the police can’t get someone in a room and threaten them -- at least not while they’ve turned the tape machine on. An independent crime lab. People probably don’t know that the crime labs around the country are basically tools of the police departments.

There are also a number of reforms in here that would drastically cut down on the number of death penalty cases in Illinois. They cut the types of murders for which you can get the death penalty from 20 down to five. They ban the execution of the mentally retarded. And they prohibit the death penalty in cases where the defendant’s guilt is based on the testimony of a single eyewitness or a single accomplice or a single jailhouse snitch.

So if all 85 of the recommendations and improvements in this report are adopted by the legislature and the courts, will the death penalty in Illinois then be fixed? Will we have a new, improved death penalty that will guarantee that no innocent person will ever be convicted of murder and that only the most brutal and heinous murderers will be sentenced to death?

Even the commission itself unanimously said no in the conclusion of this report. These people -- who learned everything about the Illinois death penalty, who studied every case, who came up with all these reforms -- wrote: "Given human nature and frailties, no system can ever be devised or constructed that would work perfectly and guarantee that absolutely no innocent person is ever again sentenced to death."

You’d think to yourself: Why don’t we just get rid of this thing? A majority of the commission members also said, "We think we should simply abolish the death penalty. But the governor asked us to see if it could be improved, and that’s what we did."

What can’t be fixed?

Why can’t it be made perfect? If you have all these great reforms, why can’t we guarantee that no innocent person will ever be convicted of murder or sentenced to death? What can’t be fixed about the death penalty process?

One thing that can’t be fixed is the racism that’s involved in the death penalty. Just like every other institution in our society, race plays a role in who lives and who dies. The commission had a study done, and it showed -- as every study across this country has ever shown -- that whether or not a defendant is sentenced to death depends to a large extent on the race of the victim. This society values the life of white people more than the life of people of color. This is nothing new, it’s consistent with everything we know, and there are no reforms that can be adopted that can eliminate racism.

What else can’t you eliminate? Corruption. There are corrupt police officers, there are corrupt judges. In Illinois, we had a judge who sat on many death penalty cases who took bribes. This judge would convict possibly innocent people and sentence them to death to make up for the fact that he was acquitting guilty people who gave him bribes -- he had to even it out to look like he was a real tough law-and-order judge.

That judge is, fortunately, now in federal prison himself, because he got busted. But corruption is a very insidious thing. You don’t know which judges, which prosecutors, which police officers, which defense lawyers are corrupt. So you simply can’t remove that kind of corruption from the process.

Incompetent defense lawyers are another problem in the death penalty area. The commission said that it agreed with the Illinois Supreme Court, which last year changed the rules so that there would be this elite corps of the best and the brightest defense lawyers who would become members of the capital litigation trial bar. Of course, what we found out from a Chicago Tribune investigation was that even for this supposedly elite group, the requirements for getting in were so lax that defense lawyers who had already been found incompetent in capital cases were approved for membership.

And no matter how much you try to improve the lawyering in capital cases -- even if they could create this supposedly elite group -- even good lawyers have bad days. It’s not science, and people will continue to be sentenced to death simply because their lawyers blundered.

What else can’t you remove from the death penalty process? Simple arbitrariness. The decision on who lives and dies is so complex and so difficult, and it’s not like you can look at a person and decide what’s in their mind and in their heart and why they did what they did.

In 1971, in a case called McGautha v. California, the United States Supreme Court said that you can’t have standards to decide who lives and who dies, because it’s impossible to get such standards. The court said that to identify the characteristics of homicides and their perpetrators which call for the death penalty and to express those characteristics in language that can be fairly applied and understood by jurors are tasks beyond present human ability. And there are no reforms that can change that.

Badly broken before

I think a little historical perspective is called for. From what they’re saying about our death penalty process, you would think that this was some kind of outdated relic from frontier days in Illinois, when it was the law of the West. Nothing could be further from the truth.

The statute that is so badly broken is only 25 years old. It was passed in 1977. If you go back before that, in 1972, the United States Supreme Court said that the death penalty statutes in use in the 1950s and the 1960s were badly broken. The Court said that they discriminated against the poor and racial minorities, that they carried too great a risk of condemning innocent people, and that the decision on who lives and dies was so freakish that the justices compared it to being struck by lightning.

So they said that the death penalty was badly broken, and they struck down every death penalty statute across the whole country. In response to this case, many states, including Illinois, passed new and improved death penalty laws. And they went back to the Supreme Court in 1976 and said we’ve reformed our death penalty process. We now have new laws that guarantee fairness and accuracy in the death penalty, that won’t discriminate on the basis of race or class, and that won’t risk condemning innocent people. And the Supreme Court said -- good work. We’re glad you fixed this up -- go forth and prosecute.

The statutes that were approved in 1976 are the statutes that we have today -- the statutes that provide a reversal rate of 70 percent in capital cases because of serious legal errors. The statutes that consistently sentence people to death based in large part on race. The statutes that have sent at least 100 innocent people to death row.

The death penalty statute in Illinois that everybody agrees is badly broken was a new and improved statute just 25 years ago. So this is really just déjà vu all over again.

They can try and fix our statute -- they can try and reform it. But how many times does the lesson have to be learned? You can’t fix the death penalty. You can’t make it perfect. You will continue to convict people who are innocent and to send people to death row who don’t deserve that penalty.

All these reforms are great. They should all be adopted and applied to non-capital cases. And the death penalty should be abolished.