Death Penalty Reform Advances, But More Work Needed, Says Illinois Death Penalty Education Project

11/5/2003

From: Edwin Colfax of the Illinois Death Penalty Education Project at the Center on Wrongful Convictions, Northwestern University School of Law, 312-503-3604, 773-425-7063 (cell), or e-colfax@law.northwestern.edu

CHICAGO, Nov. 5 -- Landmark criminal justice and death penalty reform legislation may finally be poised to become law after a compromise has been proposed regarding the dispute between Governor Rod Blagojevich and members of the General Assembly. The legislation, known as SB 472, contains over 20 measures intended to respond the troubling history of wrongful convictions in Illinois, including 17 cases of men wrongfully convicted and sent to Death Row.

The Illinois Death Penalty Education Project supports efforts of the General Assembly and the governor to find common ground so that the many important reforms in this legislation are implemented. Even if this bill is signed into law, however, it is essential to note that important work on death penalty and criminal justice reform is left to be done, including many recommendations of the Governor's Commission on Capital Punishment. The bill takes no action, for instance, on arbitrary death sentencing practices. According to the Governor's Commission on Capital Punishment, defendants are five times more likely to be sentenced to death in downstate counties than Cook, and defendants in cases with white victims are 3.5 times more likely to be sentenced to death than defendants in cases with minority victims. Such arbitrariness owes in part to overbroad eligibility factors and lack of statewide oversight of death penalty prosecutions, both problems which are essentially unchanged by the pending bill.

In addition to arbitrariness in death-sentencing, the legislature in '04 will need to address problems including, forensic science reform and full implementation of more accurate eyewitness line-up procedures. "Inaccuracy and unfairness in our criminal justice system is not only bad for the wrongfully convicted, but for all of us," said Edwin Colfax, Director of the Illinois Death Penalty Education Project. "When the wrong person is convicted, the true criminal goes uninvestigated and unpunished. SB 472, along with the new law requiring taped interrogations, begins to address this very real concern, but it leaves in place many features of a flawed system," said Colfax.

Attached are two documents summarizing the bill's components and highlighting the critical problems yet to be addressed. More detailed information about the legislation can be found at: http://www.law.northwestern.edu/depts/clinic/wrongful/videoLead.htm

Experts are available to comment, including:

Thomas Sullivan, former federal prosecutor and co-chair of Governor Ryan's Commission on Capital Punishment that made 85 recommendations for reform in April, 2002, 312-923-2928.

Edwin Colfax, Director of the Illinois Death Penalty Education Project at the Center on Wrongful Convictions, Northwestern University School of Law, 312-503-3604.

WHAT SB 472 DOES

-- Requires reliability screening of jailhouse snitch testimony in capital cases

-- Provides access to pre-trial and post-conviction DNA database searches

-- Creates an eyewitness pilot project in three jurisdictions to test new, more accurate line-up procedures. The pilot has three key elements: 1) Uses the double-blind procedure: the administrator of the line-up is unaware of which person is the suspect to avoid influencing the witness, 2) Sequential procedure, instead of showing suspects at the same time, and 3) collecting a statement from the witness at the time of the identification noting his/her level of confidence in the ID prior to any feedback from authorities.

-- Requires that all eyewitnesses exposed to a line-up must sign a form informing the witness: a) that the suspect might not be in the line-up or photo-spread, and the witness is not obligated to make an identification, and b) that the witness should not assume that the person administering the line-up or photo-spread knows which person is the suspect in the case. (Note: this law does not require double-blind line-ups. The pilot project above includes double-blind procedures.)

-- Requires disclosure of information relevant to the credibility of "jailhouse snitch" and other witnesses in capital cases, including any inducements for testimony.

-- Creates a committee to study the impact of the various reforms to the capital punishment system.

-- Gives the Illinois Supreme Court broad power to overturn death sentences it deems fundamentally unjust as applied to the particular case, independent of any procedural grounds for relief.

-- Provides that a trial judge who disagrees with a jury's imposition of death shall set forth reasons in writing, and this becomes part of the record for appellate review. The trial judge is still bound by the jury's sentencing determination.

-- Slightly modifies the most used death eligibility factor, "murder in the course of another felony" to very marginally reduce death-eligible crimes.

-- No death-eligibility based only on the uncorroborated testimony of jailhouse snitches, or when the sole evidence against the defendant is a single eyewitness or single accomplice without any other corroborating evidence.

-- Creates a recording of interrogations pilot program, which supplements a separate bill already signed into law that implements taping in two years.

-- Provides that State's Attorneys and the Attorney General will confer regarding non-binding, "advisory" guidelines for seeking the death penalty.

-- Bars death penalty for the retarded (required by US Supreme Court)

WHAT SB 472 DOES NOT DO

-- Does not substantially reduce the eligibility factors for the death penalty.

-- Does not create state-wide oversight of the decision to seek the death penalty, thus allowing jurisdictional vagaries in sentencing to persist.

-- Does not create an independent forensic science lab separate from police agencies.

-- Does not create independent oversight of forensic labs. (The Illinois State Police Crime Lab is currently "peer accredited" by the American Society of Crime Lab Directors).

-- Does not change forensic lab procedures to require true double-blind testing.

-- Does not fully implement more accurate eyewitness identification procedures for line-ups. (The bill only creates a pilot project to evaluate proposed procedures which decades of research have established as more accurate.)

-- Does not institutionalize a mechanism for investigating and responding to instances of wrongful convictions.

For more information visit: http://www.law.northwestern.edu/depts/clinic/wrongful/videoLead.htm