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HAS THE SYSTEM REALLY DONE ITS JOB'
- DOCUMENT

We have come very close to having our state Supreme Court rule our death penalty statute — the one that I helped enact in 1977 — unconstitutional. Former state Supreme Court justice Seymour Simon wrote to me that it was only happenstance that our statute was not struck down by the state’s high court. When he joined the bench in 1980, three other justices had already said Illinois’ death penalty was unconstitutional.

But they got cold feet when a case came along to revisit the question. One judge wrote that he wanted to wait and see if the Supreme Court of the United States would rule on the constitutionality of the new Illinois law. Another said precedent required him to follow the old state Supreme Court ruling with which he disagreed.

Even a pharmacist knows that doesn’t make sense. We wouldn’t have a death penalty today, and we all wouldn’t be struggling with this issue, if those votes had been different. How arbitrary.

Several years after we enacted our death penalty statute, Girvies Davis was executed. Justice Simon writes that he was executed because of this unconstitutional aspect of the Illinois law — the wide latitude that each Illinois state’s attorney has to determine what cases qualify for the death penalty. One state’s attorney waived his request for the death sentence when Davis’ first sentencing was sent back to the trial court for a new sentencing hearing. The prosecutor was going to seek a life sentence. But in the interim, a new state’s attorney took office and changed directions. He once again sought and secured a death sentence. Davies was executed.

How fair is that'

After the flaws in our system were exposed, the Supreme Court of Illinois took it upon itself to begin to reform its rules and improve the trial of capital cases. It changed the rule to require that state’s attorneys give advance notice to defendants that they plan to seek the death penalty to require notice before trial instead of after conviction.

The Supreme Court also enacted new discovery rules designed to prevent trials by ambush and to allow for better investigation of cases from the beginning.

But shouldn’t that mean that if you were tried or sentenced before the rules changed, you ought to get a new trial or sentencing with the new safeguards of the rules' This issue has divided our Supreme Court, some saying yes, a majority saying no. These justices have a lifetime of experience with the criminal justice system and it concerns me that these great minds so strenuously differ on an issue of such importance, especially where life or death hangs in the balance.

What are we to make of the studies that showed that more than 50 per cent of Illinois jurors could not understand the confusing and obscure sentencing instructions that were being used' What effect did that problem have on the trustworthiness of death sentences' A review of the cases shows that often even the lawyers and judges are confused about the instructions — let alone the jurors sitting in judgment. Cases still come before the Supreme Court with arguments about whether the jury instructions were proper.

I spent a good deal of time reviewing these death row cases. My staff, many of whom are lawyers, spent busy days and many sleepless nights answering my questions, providing me with information, giving me advice. It became clear to me that whatever decision I made, I would be criticized. It also became clear to me that it was impossible to make reliable choices about whether our capital punishment system had really done its job.

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