February 13, 2000  NYT

        The Death Penalty: When There's No Room for Error

        By RICHARD PEREZ-PENA
           When Gov. George Ryan of Illinois called last
              month for a moratorium on executions in his
        state, he focused on the fact that 12 men on death row
        had recently been proven innocent. Sentencing an
        innocent person to death was, the governor said,
        "shameful," but he said little about how the legal
        representation these inmates had received at trial may
        have contributed to justice gone wrong.

        The Chicago Tribune
        found, however, that 33
Photo:  The Death Chamber in Trenton, where mistakes are final.

        people who were
        sentenced to die in
        Illinois had lawyers
        who were later
        disbarred or
        suspended, and many
        more had lawyers with
        no experience in
        capital cases. Death
        penalty experts say the
        situation is almost certainly worse -- though not as well
        documented - in states where capital punishment is
        more routine.

        They also said that in many capital cases the means to
        mount a good defense, which often costs $250,000 or
        more, are lacking. Elisabeth Semel, who runs an
        American Bar Association project examining this
        question, describes the disparity in resources available
        to the prosecution and the defense this way: "It's like a
        match between Mike Tyson and Martin Short, and the
        referee -- the judge -- is on Tyson's payroll."

        Colorado, Connecticut and New York have attempted
        to address these problems by creating a state funded
        central office of defense lawyers who specialize in
        capital cases. David D. Wymore, chief deputy public
        defender in Colorado, said: "We found years ago that
        we had to cultivate this expertise because capital law
        is very complex and has all these traps. If you're
        inexperienced, you'll do a poor job at trial and you'll
        fail to preserve your rights on appeal."

        Colorado is a Western state where the death penalty is
        popular, yet prosecutors there seek the death penalty
        infrequently -- about three times a year, on average -- in
        part, experts say, because they believe that the
        Colorado Office of the Public Defender will defeat all
        but the strongest cases.

        "The Colorado office does an excellent job, and that
        greatly reduces the chance of miscarriages of justice,"
        said Stephen B. Bright, director of the Southern Center
        for Human Rights in Atlanta and a professor at Yale
        Law School.

                              A vigorous system for
                              representing capital
                              defendants not only means
                              fewer wrong verdicts, it
                              also means fewer death
                              sentences. Experienced
                              death penalty lawyers are
                              adept at dissuading
                              prosecutors from seeking
                              capital punishment, and
                              juries from applying it. In 52
        capital trials in Colorado since 1975, five people have
        been sentenced to death, and only one has been
        executed.

        "For that reason alone, few states will adopt this kind
        of system," said Franklin E. Zimring, law professor and
        director of the Earl Warren Legal Institute at the
        University of California at Berkeley. "There is a great
        desire to have assembly-line executions."

        Connecticut, like Colorado, has a capital defense team
        within its public defender office, which is under
        contract to the state to provide legal counsel to indigent
        defendants. As in most Northeastern states, prosecutors
        seek the death penalty only rarely. Still, in the 27 years
        since Connecticut reinstated capital punishment, no one
        has been executed.

        New York's death penalty law, enacted in 1995, also
        created the Capital Defender Office, rated by experts as
        the gold standard of its kind. The office has a $15
        million budget, provided by the state. Its 21 trial
        lawyers and 17 investigators all receive intensive
        training, and many have worked on capital cases in
        other states. The Capital Defender Office joins a case
        as soon as a defendant is charged with first-degree
        murder. Since 1995, there have been 524 cases in
        which prosecutors either charged first degree murder or
        went to court leaving open the possibility of that
        charge. The Capital Defenders Office participated in
        the defense in these cases as long as there was a
        possibility of a sentence of execution.

        Ultimately, prosecutors have sought the death penalty in
        39 cases, winning it five times. The first execution is
        years away, as all the cases are under appeal.

        Kevin Doyle, New York's Capital Defender, says his
        office has "a cultural advantage," in that New Yorkers
        are not as enthusiastic about the death penalty as people
        in the South and West. "There's a moral ecology that
        says we're not just going to pay lip service to
        constitutional rights," he added.

        Then there are states like Texas, Alabama and Georgia,
        where the death penalty is frequently imposed, and
        there is no public defender system at all. Instead,
        judges appoint lawyers for poor defendants and set
        their compensation, often at low rates. Even states like
        Illinois appoint lawyers this way when the caseload is
        too large for the public defender offices.

        "It's a culture of habitually appointing courthouse
        hangers-on," said David I. Bruck, a defense lawyer in
        South Carolina who helps train lawyers in handling
        death penalty cases. "They don't know capital law,
        they're cozy with the judges and they're underpaid. It's
        not a good situation."

        l
 

----------------------
Note:  this is a column by a Death Penalty Supporter objecting to the Illinois decision.

February 4, 2000  NYT
          The Justice Americans Demand

          By DAVID FRUM

            WASHINGTON -- Must we make the same mistakes over and
                 over again? On Monday, the Republican governor of Illinois,
          George Ryan, suspended executions in his state while he investigates how
          13 men could have been wrongly sentenced to death. (Fortunately, none
          of the executions were carried out.) Opponents of capital punishment,
          like the unfortunately named Quixote Center, have seized on Mr. Ryan's
          action as an opportunity to call for a moratorium on all executions
          nationwide.

          And who knows? There might possibly be a governor or two ready to
          listen. But let's hope not. For in their zeal to halt a punishment they regard
          as barbaric, death-penalty opponents have helped corrode American
          trust in the democratic system.

          Over the past 30 years, Americans have expressed steadily increasing
          support for the death penalty. In 1965, before the great crime wave of
          the 1970's, a Harris poll reported that only 38 percent of Americans
          supported capital punishment; 47 percent opposed it. Today, 71 percent
          favor it; 21 percent oppose it.

          Thwarted politically, death-penalty opponents looked to the courts to
          suppress executions for them. For a long time, they succeeded. Their
          greatest victory came in 1972, when a 5-4 majority of the Supreme
          Court declared capital punishment as carried out by most states a "cruel
          and unusual punishment" prohibited by the Eighth Amendment.

          Even after the Supreme Court reversed itself in 1976, the lower federal
          courts could be counted on to mire each and every death-penalty case in
          a tangle of litigation. Although juries imposed the death penalty more and
          more frequently in the 1980's and 1990's, it remains true that the number
          of Americans executed in any given year has yet to exceed the number
          killed by lightning. And even when death sentences are finally carried out,
          it is only after immense delays: the 68 prisoners executed in 1998 spent
          an average of 10 years and 10 months on death row.

          The spectacle of lawyers and judges tying up capital cases in
          never-ending procedural review, while crime rates skyrocketed, helped
          discredit opposition to the death penalty. More ominously, it also helped
          discredit the courts themselves.

          The percentage of Americans expressing "great confidence" in the
          Supreme Court fell even more rapidly from 1965 to 1979 than the
          percentage expressing "great confidence" in Congress and the
          presidency, according to the Harris poll.

          Opponents of the death penalty are unchagrined. Because they believe
          that their cause is a righteous one, they regard all tactics as legitimate.
          Certainly, shifting their focus from the courts to the governors is
          welcome; after all, governors are elected and accountable in a way that
          the federal courts are not.

          But even with elected officials, death-penalty opponents are proceeding
          in a way that public opinion is bound sooner or later to perceive as
          underhanded. Instead of simply working to elect governors who explicitly
          oppose capital punishment, they are hoping to persuade governors who
          support executions to flip-flop after the election -- and to justify the
          switch by disguising it as a merely temporary precaution.

          The plan might succeed. But such success would come at a very high
          price. One of the most disturbing features of modern American life is the
         cynicism expressed by ordinary citizens about the workings of their
          government. Their loss of trust in their institutions has generally coincided
          with a loss of faith in their ability to control those institutions.

          On the campaign trail, Democrats like Bill Bradley promise to reignite a
          now vanished idealism. What needs to be understood, though, is that it is
          the refusal of democratic liberalism to accept popular will on burning
          issues like the death penalty that helped snuff out that idealism in the first
          place.

          Governor Ryan acted properly: If state justice seems to be miscarrying,
          it's a governor's job to find out why and right it. But once Mr. Ryan has
          found the answer, the criminal laws of Illinois must be honored.

          When death-penalty opponents call on governors to flout democratically
          enacted laws, they are inviting those governors to abuse their power,
          alienating and embittering their electorates. If you treat people like
          subjects, it is hardly surprising that they cease to feel like citizens.

         David Frum, a senior fellow at the Manhattan Institute, is the
          author, most recently, of "How We Got Here: The 70s: The Decade
          That Brought You Modern Life (For Better or Worse)."

----------------------------------------------------------------------------------

Note:  The following story from the Chicago Tribune gives more details on the Illinois decision.  Students in Policy & Ethics are not responsible for the details here, they are given for your referece.

Chicago Tribune Story.
Ryan: 'Until I can be
           sure'
           Illinois is first state to suspend death
           penalty

           By Ken Armstrong
           and Steve Mills
           Tribune Staff Writers
           February 1, 2000

           Denouncing a system
           that is "so fraught
           with error and has
           come so close to the
           ultimate nightmare,"
           Gov. George Ryan
           declared a
           moratorium Monday
           on the death penalty
           in Illinois, marking the
           first time any state has
           taken such dramatic
           action.

           "Until I can be sure
           that everyone
           sentenced to death in
           Illinois is truly guilty,
           until I can be sure
           with moral certainty
           that no innocent man
           or woman is facing a
           lethal injection, no
           one will meet that
           fate," Ryan said.

           Ryan decried the state's "shameful record of
           convicting innocent people and putting them
           on Death Row" and repeatedly referred to the
           13 condemned inmates who have been
           cleared since Illinois reinstated capital
           punishment in 1977, one more than the
           number of inmates the state has executed.

           The governor said his decision was spurred
           by the wrongful convictions and a recent
           Tribune investigative series, "The Failure of
           the Death Penalty in Illinois," which examined
           the state's 285 capital cases and exposed
           how bias, error and incompetence have
           turned the state's harshest punishment into its
           least credible. The investigation revealed that
           roughly half the death-penalty cases that have
           completed at least one round of appeals have
           been reversed for a new trial or sentencing
           hearing. It also detailed how misconduct by
           prosecutors and police, dubious forensic
           evidence and such unscrupulous tactics as
           excluding blacks from juries have contributed
           to wrongful convictions.

           Ryan specifically pointed to the Tribune's
           findings that questionable jailhouse-informant
           testimony had been used in at least 46
           death-penalty cases, and that 33 Death Row
           inmates were represented at trial by an
           attorney who has been disbarred or
           suspended.

           "Disbarred lawyers, jailhouse
           informants--those kinds of problems are in
           the system, and we've got to get them out,"
           Ryan said.

           Ryan's announcement received broad
           support statewide and nationally. In Illinois,
           even conservative legislators who support
           capital punishment lauded Ryan's decision,
           as did Atty. Gen. Jim Ryan and the Cook
           County state's attorney's office. Nationally,
           U.S. Sen. Patrick Leahy (D-Vt.), a member
           of the Senate judiciary com-mittee who is
           readying a package of death penalty reforms,
           called Ryan's decision "courageous and
           timely." Leahy said it would be "a catalyst for
           a similar review in Washington."

           Death penalty critics and American Bar
           Association leaders said they hope Ryan's
           decision will prompt other states to follow
           suit.

           "When a conservative Republican governor
           in a large state with a large Death Row
           recognizes that there are so many systemic
           questions about the death penalty, it strongly
           buttresses the need for a moratorium in all the
           other states," said New York City attorney
           Ronald Tabak, who heads a death-penalty
           committee for the ABA, the nation's largest
           lawyers' group. "As great a need as there is
           for a moratorium in Illinois, the need is even
           greater in Texas, Florida, Louisiana and many
           other states."

           The association came out in support of a
           national moratorium three years ago.

           Despite concerns about the possibility of
           executing an innocent person, Ryan said he
           continues to support the death penalty. In
           March, he declined to halt the execution of
           Andrew Kokoraleis, but called it a "very
           agonizing" decision.

           The threat of an innocent person being
           executed--a specter raised by the country's
           growing number of wrongful-conviction
           cases--has helped fuel movements in
           numerous states to suspend or even abolish
           the death penalty.

           But Ryan's decision makes Illinois the first of
           the country's 38 states with the death penalty
           to formally suspend executions pending a
           review of the capital justice system.

           At least six states considered a moratorium
           last year, but none adopted such a measure.
           The closest any state came was Nebraska,
           where legislators approved a moratorium bill
           but the governor vetoed it.

           The Illinois House approved a moratorium
           bill last year, but the measure failed in the
           Republican-controlled Senate.

           By temporarily suspending executions, Ryan
           has in effect taken the very step at which the
           Senate balked. As governor, Ryan has the
           power to grant stays or reprieves, a move
           that does not negate a death sentence but
           does delay execution.

           "There's going to be a lot of folks who are
           firm believers in the death penalty who may
           not agree with what I'm doing here today,"
           Ryan said. "But I am the fellow who has to
           make the ultimate decision whether someone
           is injected with a poison that's going to take
           their life."

           Ryan said he would not approve another
           execution until he has appointed a committee
           to study the capital system's flaws and that
           committee has finished its review and made
           recommendations. "This, in effect, is a
           moratorium," he said.

           The governor said he has not decided who
           will be on the committee, but added, "It's not
           going to be a stacked panel one way or the
           other."

           Ryan also said he has not set any timetable
           for the committee to complete its work. In
           the meantime, Ryan's decision will not
           prevent prosecutors from continuing to
           pursue the death penalty in pending cases.

           At least three other committees created by the
           General Assembly and state Supreme Court
           have been studying the death penalty as well.

           Ryan denied that he is imposing a
           moratorium to deflect attention from a
           growing driver's licenses-for-bribes scandal
           that occurred while he was secretary of state,
           saying the move was necessary to prevent the
           execution of innocent defendants. Ryan even
           mentioned that a 14th Death Row inmate
           might soon be cleared of a murder.

           A Ryan spokesman said the governor was
           referring to Edgar Hope Jr., who has been
           condemned twice for separate murders.
           Students at the Chicago-Kent College of Law
           and their professor, Richard Kling, filed court
           papers last week saying they uncovered
           evidence that implicated a different man in
           one of the slayings.

           Investigations by Northwestern University
           journalism students played a role in three
           exoneration cases, including last year's
           release of Anthony Porter, who came within
           two days of execution.

           "How do you prevent another Anthony
           Porter--another innocent man or woman from
           paying the ultimate penalty for a crime he or
           she did not commit?" Ryan said. "Today I
           cannot answer that question."

           Cook County Public Defender Rita Fry, who
           recently called for an investigation into
           possible police and prosecutorial misconduct
           in the 13 wrongful-conviction cases, said she
           trusted Ryan's motives.

           "I assume that he's doing it for all the right
           reasons," Fry said. "I think he realizes that
           this is an embarrassment to Illinois and that
           the system, while not perfect, could certainly
           be better. I think he's trying to do the right
           thing."

           Two weeks ago, Cook County defendant
           Steve Manning became the 13th Illinois Death
           Row inmate to be cleared. In its five-part
           series published in November, the Tribune
           exposed the holes in the prosecution's case
           against Manning, including its reliance upon a
           jailhouse informant with a history of lying.

           Ryan received support from fellow
           Republicans who favor the death penalty,
           including state Sen. Kirk Dillard of Hinsdale.

           "The person who stands behind the final
           lethal injection and the prisoner is George
           Ryan," Dillard said. "He's the final stopper,
           and if he's not comfortable with the process,
           then I would support his efforts to have
           experts make him comfortable with the
           process.

           "My guess is virtually every member of the
           Senate Republican caucus supports the death
           penalty, and I don't know how any of us
           could oppose the governor wanting to make
           sure that the death-penalty system, the most
           important cornerstone of Illinois criminal law,
           is working properly. How can you not want
           to make sure?"

           Lawrence Marshall, a Northwestern
           University law professor whose work helped
           free two of the state's 13 exonerated Death
           Row inmates, said Ryan's decision "is a
           wonderful, wonderful statement of his moral
           ground."

           "Even if a person looks guilty, he now knows
           from our lessons in Illinois that looks can
           deceive," Marshall said.

           But, Marshall said, the moratorium is only a
           first step.

           "The real question is going to become: What
           happens? What does the commission look
           like and how seriously do they take their
           job?" Marshall said.

           Ryan's moratorium will have the most
           immediate effect on Death Row inmates
           Willie Enoch and Walter Thomas. Dan Curry,
           a spokesman for Jim Ryan, said they are
           nearest in line for execution, having all but
           exhausted their appeals.

           Enoch was sentenced to death in Peoria
           County for the 1983 rape and murder of a
           Peoria woman, and Thomas was condemned
           for the stabbing death of an Aurora woman
           during a 1986 robbery.

           Ten more Death Row inmates could reach
           the end of their appeals within the next year,
           Curry said. But the attorney general supports
           the moratorium and will not seek execution
           dates until the suspension is lifted, Curry
           said.

           "(Jim Ryan) and others involved in the
           administration of criminal justice in Illinois
           want to make sure capital punishment
           operates fairly," Curry said. "Everyone is
           working toward the same goal. And if the
           governor believes the process should
           continue in an execution-free environment,
           the attorney general supports that."

           David Erickson, the top aide to Cook County
           State's Atty. Dick Devine, said the office
           supports Ryan's moratorium. Roughly half
           the death sentences in Illinois involve Cook
           County cases.

           The commission that Ryan plans to appoint
           should look at every aspect of the capital
           system, beginning with whether Illinois has
           too many categories of crimes that are
           punishable by death, Erickson said.

           "The fundamental question that the legislature
           and people who support the death penalty
           have to answer is this: If it's the supreme
           punishment, why do we keep expanding the
           definition of what makes a capital crime?"
           Erickson said. "Our position would be that if
           you're going to do an examination of the
           entire system, then you really do the entire
           system."

           Although he did not directly criticize Ryan's
           decision, state Sen. Ed Petka (R-Plainfield), a
           former Will County state's attorney, said the
           moratorium has "little practical effect"
           because executions take so long to carry out.

           "I believe in capital punishment, and I think
           the quicker we get on with the business of
           getting rid of hard-core, cold-blooded killers
           who are truly guilty" the better, Petka said.

           But state Sen. Chris Lauzen (R-Aurora),
           another staunch conservative who supports
           the death penalty, said he wholeheartedly
           agreed with Ryan's decision.

           "What else could we do?" Lauzen said.
           "Nobody wants to put innocent people on
           Death Row."
 

------------------------------------------------------
July 10, 2000
 

        What Death-Penalty Errors?

        By JAMES Q. WILSON

             MALIBU , Calif. -- For those who support capital
             punishment, as I do, the possibility that innocent
        people could be executed is profoundly disturbing. No
        human arrangement can guarantee perfection, but if
        perfection is not possible, then the number of errors
        ought to kept as low as possible. For that reason, it is
        worth studying "Broken System: Error Rates in Capital
        Cases," the recent report by Professor James Liebman
        and others at the Columbia University Law School,
        especially since that document has stimulated an
        outpouring of media coverage.

        Its essential finding is that, for the last two decades or
        so, courts have found "serious, reversible error" in a
        large fraction of the cases they reviewed. These errors,
        the report claimed, often involved weak or incompetent
        defense attorneys and the withholding of important
        evidence from the juries.

        But notice what the report did not say. Its authors did
        not attempt to discover whether any innocent person
        had been executed, and they made no claim that this has
        happened. Instead, they said that the large number of
        appeals leaves "grave doubt whether we do catch" all
        of the errors. The clear implication is that, were the
        truth known, we might well be killing many innocent
        people.

        But that truth is not known. The Death Penalty
        Information Center, a rallying point for opponents of
        execution, reports that since 1973, when the Supreme
        Court reinstated the death penalty, 69 people have been
        released from death row after they were found to be
        innocent. But the center does not say that any innocent
        person has been put to death, though if it had found such
        a case it surely would have proclaimed it.

        The Columbia University report shows that death
        sentences are intensively reviewed by appeals courts.
        Some critics of these reviews think they take too long
        and involve too many unnecessary bites at the apple,
        and that may be true. But if we are to err, it is best that
        we err on the side of safety.

        Nine or 10 years usually pass between the imposition
        of the death penalty and its being carried out. It took 19
        years and appeals heard by more than 30 judges before
        Gary Graham was executed last month in Texas. It is
        hard to imagine that this much time is necessary for an
        adequate appeal, but offsetting the cost and delay is the
        assurance of only a small chance that an innocent
        person will be killed. The 5,760 death sentences
        handed out since 1973 had, by 1995, led to only 313
        executions.

        Mr. Liebman suggests that the high rate of appeals
        means that serious errors are often made by the trial
        courts. But before we can accept that conclusion, we
        must first know whether the errors were serious enough
        to affect the outcomes of the cases when they were sent
        back for new trials. Did an "error" cause a new trial
        that set aside the death penalty? Unfortunately, Mr.
        Liebman was able to learn this for only a small number
        of the reversals.

        Because of Supreme Court decisions, every
        death-penalty conviction leads to an appeal to the
        state's highest court. About two-fifths of these cases
        were reversed. As I read the report, we have no
        information about what happened in the new trials.

        Then there are state appeals after convictions. These
        also led to many reversals, but we don't know what
        happened to the great majority of these cases when they
        were retried because trial courts ordinarily do not
        publish their findings. Mr. Liebman and his colleagues
        managed to find 301 cases that had been retried, but we
        have no idea whether these were representative of all
        of those appealed or were only a few dramatic ones
        that somehow came to the attention of outsiders.

        Of these 301 new actions by trial courts, 22 found that
        the defendant was not guilty of a capital crime, 54
        reimposed the death sentence and 247 imposed prison
        sentences.

        Then there were appeals to the federal courts that also
        led to reversals in about two-fifths of the cases, but
        again we are not certain what happened in all the new
        trials.

        The report also lumps together cases going back to
        1973 with those decided more recently, even though the
        Supreme Court in 1976 created new procedural
        guarantees that automatically overturned many of the
        death-penalty decisions made between 1973 and 1976.
        It is not clear from the Columbia report what fraction of
        its reversals date back to these big changes in the rules.

        In short, in the vast majority of death-penalty cases we
        have no idea whether the finding of error that led to a
        reversal was based on a legal technicality, a changing
        high-court standard about how a capital crime ought to
        be tried or a judgment that the defendants might be
        innocent. All we know for certain is that a lot of
        death-penalty cases are reviewed over a long period of
        time -- a fact that dramatically reduces the chances of
        innocent people having been executed.

        More procedural reforms may be coming. Congress is
        now considering a bill that would require federal
        courts to order DNA testing, at government expense if
        the defendant is indigent, whenever DNA evidence
        from the crime is available. It also would require states
        seeking federal crime-control funds to certify that they
        have effective systems for providing competent legal
        services to indigent defendants in death-penalty cases.

        But more might be done at the state level. States ought
        to have laws that create imprisonment without
        possibility of parole for first-degree murder
        convictions, and the judge in every such case should
        instruct the jurors in the sentencing phase that they can
        choose that or the death penalty. This allows jurors
        who may have some doubts about the strength of the
        evidence or some other plausible worry to hedge their
        bets if they are so inclined.

        Not every state now has such laws. In Texas, the
        alternative to the death sentence is life in prison, but
        without an absolute guarantee that the offender will
        actually spend his life there. Jurors rightly suspect that
        the perpetrator will find some way to get back on the
        street, and so they often vote for death.

        The American Law Institute, a group of legal scholars
        that designs uniform state legal codes, has
        recommended that even when a jury decides that capital
        punishment is appropriate, the judge should be allowed
        to bar the death penalty if the evidence "does not
        foreclose all doubt respecting the defendant's guilt."
        The states have not adopted this rule, but perhaps they
        should, especially if this change could be coupled with
        procedures designed to reduce the seemingly endless
        number of post-trial appeals.

        In the meantime, we ought to calm down. No one has
        shown that innocent people are being executed. The
        argument against the death penalty cannot, on the
        evidence we now have, rest on the likelihood of
        serious error. It can only rest, I think, on moral grounds.
        Is death an excessive penalty for any offense? I think
        not, but those who disagree should make their views on
        the morality of execution clear and not rely on
        arguments about appeals, costs and the tiny chance that
        someday somebody innocent will be killed.

        James Q. Wilson is the author of "Moral Judgment"
        and "The Moral Sense."