Monday, February 1, 2010

You May Be Sentenced To Death if....

Illinois is a death penalty state, one of thirty-five. Former governor George Ryan placed a moratorium on executions in 2000. After leaving office, he was convicted in federal court for various corruption-related crimes. Inmate Ryan is currently in a federal prison in Indiana. But that's besides the point. In 2003, before leaving office, he commuted every death sentence to life without parole (167 total), thus clearing death row in Illinois.

1,193 people have been executed in the United States since 1976, and Texas accounted for 449 of them. Illinois only killed 12. Virginia is second only to Texas with 105 executions. Together, Texas and Virginia account for almost half of all American executions since 1976.

Executions are so regular in Texas they usually don't make the news, unless for some reason it's stopped. I lived in Texas from 1998-2002. During that time 145 people were executed. I don't remember hearing anything special about even one of them.

Executions also have a regional trend. 985 of the 1,193 (83%) were executed in the South. The Midwest accounted for 137 (11%) , the West 67 (6%) , and Northeast a meager 4 (.003%). When I look at these figures I can't help but see the huge American map on presidential election day where states are marked either red (Republican) or blue (Democrat) as poll results come in.

The South is almost entirely red states. While Florida can flip-flop, generally the rest of the rebel states are always red. Generally. The West and Northeast are typically blue and the Midwest is usually split. And the execution numbers clearly show, red states execute way, way more people than blue states. I am not going to make a political statement.

Illinois is sort of strange. Chicago, for the most part, is blue. The rest of the state is red. More often than not we have a Republican governor. The last one is in prison. His Democrat replacement, Rod Blagojevich, might be heading there himself. But I know Rod's lawyer so I doubt it. He's really good.

After the Ryan commutations, a lot of anti-death penalty advocates thought the Illinois legislature might take the death penalty off the books. They were wrong. 

Since 2003, ten people have been sentenced to death. I think the execution moratorium is still in place, so the legal status of those sentenced to death is probably complicated. And no one has been executed in Illinois since 1999.

Tonight I was reading the Illinois homicide statute, 720 ILCS 5/9-1. Yes, my life is so lame that I sit at home on Saturday nights and read statutes. I was amazed at how many aggravating factors are listed that, if proven, make the case death penalty eligible.

Here they are (I am going to cut out a lot of the extra words for the sake of clarity):

1. Victim was a police officer or fireman. 2. Victim was an employee of the Department of Corrections. 3. There were 2 victims, i.e. double homicide. 4. Murder was the result of hijacking airplane, bus, train, or ship. 5. Defendant was hired to kill the victim, i.e. hit man. 6. Defendant killed victim while committing another felony. 7. Victim was under the age of 12.

8. Murder done to prevent victim from testifying in court or participating in an investigation. 9. Murder committed while Controlled Substances Act was violated. 10. Defendant was in prison when murder occurred. 11. Murder was conducted in a cold, calculated, and premeditated manner. 12. Victim was a paramedic or other emergency medical technician.

13. Defendant is a drug kingpin. 14. The murder involved torture. 15. The murder was a drive-by shooting. 16. Victim was 60 years of age or older. 17. Victim was disabled. 18. Victim was volunteering doing community policing. 19. Victim had a protective order against the murderer. 20. Victim was a teacher on school grounds. 21. Murder was related to terrorism.

Those are the official aggravating factors. If even one is present, the state can seek the death penalty. In Illinois, one has to be a member of the capital litigation bar to defend a death penalty case. Apparently the Illinois Supreme Court got tired of dealing with death penalty appeals where there had been severe ineffective assistance of counsel. Now, there are standards one has to meet to defend a death case.

The requirements are not too lengthy. Basically the lawyer must have 5 years criminal litigation experience, tried at least eight felony cases of which at least two were homicide cases, and have attended a 12 hour seminar dedicated to death penalty litigation.

Often private lawyers are appointed by the court to defend a death case. The Illinois Capital Litigation Bar is not that large. I doubt there are much more than a few hundred lawyers in the state that are certified. I estimate there are about 80,000 licensed attorneys in Illinois. So, it's a select crowd.

Appointed lawyers are supposed to be paid out of the Capital Litigation Fund and have to submit billing, receipts, budgets, etc. An appointed attorney told me earlier this year that Cook county owed him $60,000 for a case I watched him lose. Ironically, by the end of the case, the state's attorney had "de-deathed" the case. What this means is that the state decided not to seek the death penalty after all. I wonder if he has been paid?

If the defendant doesn't have or is not assigned private counsel, two public defenders are assigned to defend the case. The court also makes money available for the hiring of experts. Cook county assistant public defenders assigned to death cases are highly experienced, seasoned members of the Homicide Task Force.

Though not yet qualified by experience, I attended the 12 hour seminar last October in Springfield. The seminar has to be attended every two years to remain certified and it's held twice a year. Once in Chicago, and once somewhere downstate. Last October, the downstate program was in Springfield, my hometown.

It was a fantastic seminar and I learned a lot. I saw a lot of attorneys I recognized from Chicago and took the time to formally introduce myself to a few of them. I like the old school guys that have been doing the work since I was playing baseball in Little League. Likewise, when I was in the Army, I had a deep affection for the Vietnam vets. And I am proud to have served with the last of them before they retired. I guess I feel the same way now. Often in awe, always humble, and extremely respectful.

I was amazed to learn just how much work goes into a death case. A death penalty trial has three phases. Phase one is guilt/innocence. Phase two is eligibility, where the jury determines if an aggravating factor was present. And phase three is the actual sentencing phase.

There was recently a death penalty trial in Chicago. It was related to the slaying of seven employees of a Brown's chicken in Palatine in 1993. The case was known around the courthouse as "Brown's chicken." One person was tried and convicted a long time ago. The 2009 trial was for the co-defendant, James Degorski.

Voir dire (jury selection) took one week and they even worked on a Saturday. The guilt/innocence phase took about a month (he was found guilty), death eligibility only took one day, and the sentencing phase lasted three weeks. Looking at a calendar, voir dire started around August 10, 2009 and the jury decided not to execute him on October 20, 2009. Two jurors saved his life. The other ten wanted him dead.

The death penalty is a polarizing issue, much like abortion. Oddly enough, most anti-abortion folks are pro-death penalty. A guess a life isn't a life after all. Again, not going to get political. Or God forbid, religious.

Not that anyone cares, but I have no fundamental objection to the death penalty. Some people just deserve to die...assuming they're guilty. And therein lies the rub, it's not a 100% accurate system. And it never will be.

The statistics of those exonerated and saved from death row cannot be ignored (about 139). The Innocence Project has done some very outstanding work. This highly dedicated group has freed not only those condemned, but many serving life with no parole. Kudos. Keep fighting the good fight. It needs to be fought.

So while I support the death penalty in principle, I cannot do so in practice. It's a punishment for which no margin of error can exist in its application. History has shown that it does. And that's where I draw the line.


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