Machinery of Mercy
Inside the historic death penalty decision in Illinois
By Jonathan Alter
Jan. 13 — It was a brief ad lib after a technical glitch Saturday that may have unintentionally revealed the core reason why outgoing Illinois Gov. George Ryan made his historic decision to commute the sentences of all 167 death row inmates in that state to life in prison.
“GOVERNMENT TELEPROMPTER,” Ryan muttered in disgust about three quarters of the way through his speech at Northwestern University Law School. The teleprompter had briefly failed, and Ryan was forced to look down and read off the printed text. Today is Ryan’s last day in office. The rotund party hack from Kankakee didn’t run for re-election because of a scandal (involving bribes for truckers’ licenses) that is expected to lead to his indictment. But what’s more relevant is that Ryan is a conservative Republican and longtime supporter of the death penalty who finally concluded that capital punishment was just another failed government program — no more reliable than any other lousy bureaucracy or faulty government teleprompter. The rap on Ryan, who imposed a moratorium on executions in Illinois is 2000, is that he was simply grandstanding to win the moral high ground and salvage some of his legacy. But this could have been accomplished much more easily with the selective commutations he was expected to make. His decision to issue “blanket” commutations — essentially closing death row in Illinois — was based on conscience and a thorough examination of the record.
A MATTER OF GUILT
What shook Ryan is that so many death row inmates in Illinois have turned out to be not just convicted unfairly but actually without guilt. With the four prisoners released last week, Illinois has now freed 17 death row inmates who are innocent — one was within 48 hours of being executed when evidence surfaced proving that someone else committed the crime for which he was sentenced to die. Most of the other 163 are probably guilty but were sent to death row under a system where no one can be sure. By not executing them, Illinois will avoid the chance of making an irreversible mistake. Is Illinois’ criminal justice system somehow worse than that of Texas or Virginia or the three dozen other states that impose capital punishment? Does Illinois rely more than other jurisdictions on questionable testimony, false confessions, withheld DNA testing and other abuses? No. Illinois simply has more aggressive journalists (at The Chicago Tribune) and activists (at Northwestern’s Center on Wrongful Convictions) than elsewhere.
I’ve been watching this story unfold for a decade. Believe me, if reporters and law schools in other states got cracking, they would find their own capital punishment systems just as rotten. It simply takes a willingness to look at the evidence. When Ryan did, his decision wasn’t as personally wrenching as reported. In fact, Ryan’s hard-headed reasons for acting have been obscured in all of the publicity. The call from Nelson Mandela was moving but not decisive. Nor, apparently, were the words of Ryan’s wife, who, like many in Illinois, opposed the granting of blanket commutations, in part because one of the murderers had killed a close family friend of the Ryans.’
PROMPTED TO ACT
Instead, I learned that Ryan acted for essentially four reasons, two of which he hasn’t explained publicly:
The Illinois State Legislature failed to act
: This was an argument that Ryan returned to again and again in his remarks. His reform bill, with 85 recommendations, was stymied in Springfield. The bill contained: common-sense requirements that interrogations be videotaped (more than a dozen of those sentenced to death in Illinois were tortured, and 26 were convicted on the basis of what turned out to be false confessions); changes in witness identification procedures (lineups are often rigged to point to a particular suspect); and the barring of notoriously unreliable jailhouse snitch testimony in capital cases (many inmates were sent to death row based on it). Even now, lawmakers will likely sit on their hands.
Prosecutors learned nothing
: The Legislature won’t act because it’s in the grip of the prosecutors, who have learned little or nothing from more than 20 years of horror stories in Illinois about wrongful convictions. Ryan was appalled to hear a spokesman for the Cook County state’s attorney (district attorney) say recently that the governor is “buying into the mantra” of the defense bar when he said the system is broken, as if the manifest failures of the system are just defense tactics. (Even a former U.S. Attorney for Northern Illinois, Thomas Sullivan, blasted State’s Attorney Richard Devine over the weekend for preferring death to real justice). “When is the system going to be fixed?” Ryan asked. “Will we actually have to execute an innocent person before the tragedy of our system is understood?”
The courts wouldn’t act
: Ryan didn’t want to attack judges publicly, but their failure to identify the abuses highlighted by the press weighed heavily in his decision. In one sense, the courts are working. At the appellate level, half of all capital cases in recent years have been reversed or sent back for resentencing — itself a huge indictment of the system. The problem is that two-thirds of the 60 trial judges in Chicago are themselves former assistant state’s attorneys, and 20 judges actually helped prosecute the capital cases they must now review. That put them in an impossible position to initiate reform. It took dogged activists and, in a couple of highly publicized cases, college journalism students, to find that the prosecutors had the wrong guy. “A system so fragile that it depends on young journalists is seriously flawed,” Ryan said, in a backhanded compliment to the news media.
His successor wouldn’t act
: Today, Rod Blagojevich, a Democrat, becomes governor of Illinois. While Blagojevich supported Ryan’s moratorium on executions, he called the blanket commutations a “big mistake.” Ryan feared that Blagojevich, who during the campaign didn’t approve of commutations to life imprisonment even in cases of where the suspects were tortured, would let the system muddle through without reform.
Why did Ryan wait until the very end of his term to make his decision? Because until the end of last week, he held out hope that judges and prosecutors would initiate changes themselves, possibly through a long-overdue report. And the governor, until last week, assumed he would issue some commutations and decline others, especially in 20 cases where the inmates had not even applied for them. But it turned out that he couldn’t be sure that even the so-called open-and-shut cases would stay that way.
For instance, Scott Turow, a best-selling novelist and former prosecutor who served on the advisory committee that drafted the ignored reforms, recently produced evidence casting doubt on the guilt of a notorious criminal sentenced to die for a prison killing. After that, Ryan concluded he couldn’t possibly know which cases would yield new evidence. He feared that if he didn’t commute all of the sentences, someone innocent would likely be executed.
At the end, the only impediment was the strong opposition by the families of victims, who have suffered unimaginably and begged the governor to keep death row intact. But with only 2 percent of all murder cases resulting in the death penalty, these families were already receiving a special brand of justice. Now they will be like the families of the other 98 percent of murder victims — cold comfort, perhaps, but not as deep an injustice as executing the innocent. The killers of their loved ones will rot in jail for life, even if they want to be executed. Ryan rightly urged that some of the millions now devoted to administering the death penalty be redirected toward the families.
A CHAPTER IN HISTORY
On most issues, George Ryan was a mediocre governor. Earlier, as Illinois Secretary of State, he presided over an office of crooks. There’s a decent chance that he’ll serve some time in the pen himself. But when it counted, Ryan did the right thing, stepping up to what he accurately called “one of the great civil rights struggles of our time.”
More than 100 years ago, another Illinois governor, John Peter Altgeld, sacrificed his political career by intervening on behalf of a group of anarchists wrongly accused of terrorism in the notorious Haymarket Riots. Vachel Lindsay wrote a famous poem about Altgeld called ”The Eagle That Is Forgotten.” Ryan is no eagle, but when the history of the death penalty in America is written, his decision last week will be remembered as a moment of inspiration and courageous leadership.
Jonathan Alter is senior editor at Newsweek, specializing in politics, media and social issues