JIM LEHRER: Capital punishment. Maryland has become the second state in the country to call for a moratorium on using the death penalty. Illinois did the same thing two years ago. Elizabeth Brackett of WTTW Chicago reports on the recent findings of an Illinois commission on the administration of the death penalty.
PROTESTORS: Stop the killing!
PROTESTORS: Stop the violence!
PROTESTORS: Stop the killing!
ELIZABETH BRACKETT: As the number of executions in the country has risen, so has the protest against them. Last year, executions were up by 27 percent. But at the same time, the country had its 100th Death Row exoneration. After the 13th exoneration in Illinois, Governor George Ryan convened a special commission to scrutinize every aspect of capital punishment.
GOV. GEORGE RYAN, (R) Illinois: When the 13th inmate was exonerated, I did the only thing I could do-- the only thing I think that any governor could do. I halted execution. And that was the easy part of the program. The hard part was find out what had gone so terribly wrong with the system.
ELIZABETH BRACKETT: In April, the commission released its final report, creating a political and legal firestorm of its own. Commission member and former U.S. Attorney Tom Sullivan:
TOM SULLIVAN, Commission Member: The message from this commission, and of this report, is clear: Repair or repeal; fix the capital punishment system or abolish it. There is no other principled course.
ELIZABETH BRACKETT: The commission made 85 specific recommendations. The most controversial was reducing the number of crimes that make a defendant eligible for the death penalty. The legislature has been continually adding eligibility factors since the death penalty was reinstated in Illinois in 1977. That bothers State Senator Barack Obama.
BARACK OBAMA, (D) Illinois State Senator: We certainly don't think that we should be... have this laundry list that does not make any distinctions between the run-of-the-mill armed robbery that results in death, and systematic killings by a terrorist organization. And I think essentially what the reduction of aggravating factors does is it says, "Here's a narrower set of crimes that we think potentially at least could deserve the death penalty."
ELIZABETH BRACKETT: The narrower crime list would include: The murder of a peace officer or firefighter killed in the line of duty; the murder of any person at a correctional facility; the murder of two or more persons; the murder of a person involving torture; a murder that obstructs justice or impedes the investigation or prosecution of a crime. Death penalty opponent Rob Warden, who was instrumental in the release of nine men from Illinois' Death Row, says cutting down the number of cases eligible for a death sentence from twenty to five would make a big difference.
ROB WARDEN, Center on Wrongful Convictions, Northwestern University: If they narrow those down to five, they're going to get rid of the catchall, the big one-- felony murder-- that has been the aggravating factor used in more than half of the Illinois death sentences. So that would be a step in the right direction.
ELIZABETH BRACKETT: But commission member Mike Waller thinks it's a step in the wrong direction, particularly the elimination of felony murder, which is any murder committed along with a felony. After heated debate, Waller, a county prosecutor, voted against the recommendation.
MIKE WALLER, Commission Murder: I believe that the commission made a mistake in eliminating at least two categories out of contract murder, which is the probably the most cold-blooded and cruel type of murder; and then to totally eliminate the category of felony murder I think was a mistake. You eliminate cases such as if a young child is abducted and kidnapped and held and sexually assaulted, raped, and then murdered-- that would not be a death penalty case.
ELIZABETH BRACKETT: Illinois State Senator and former prosecutor Edward Petka, a staunch death penalty supporter, saw the recommendation as the commission's attempt to eliminate the death penalty.
EDWARD PETKA, (R) Illinois State Senator: The net effect, in my opinion, is simply to make it nearly impossible for any prosecutor to seek the death penalty.
ELIZABETH BRACKETT: "Not true," says commission member and Cook County public defender Rita Fry. Though the commission voted informally to abolish the death penalty by a margin of 8-5, that recommendation was not part of the final report.
RITA FRY, Commission Member: We were asked by the governor to determine whether or not the procedures in place could be improved, and they could, and those were our recommendations. We were not asked to determine whether or not there should be a death penalty.
ELIZABETH BRACKETT: Police and prosecutors across the state have also been angered by the commission's controversial recommendation to videotape interrogations as well as confessions.
INTERROGATOR: Nakiah, if you would, could you relate to us the circumstances surrounding the shooting incident on April 25,1996?
NAKIAH: I raised the gun, and I shot him, four to five times.
ELIZABETH BRACKETT: This confession was videotaped by the Peoria, Illinois, police department in 1996 after a six-hour-long interrogation. The prosecutor in Peoria County, Kevin Lyons, says videotaping confessions makes sense, but videotaping interrogations is not practical.
KEVIN LYONS, Peoria County State's Attorney: A criminal spends more time avoiding capture than sometimes we can spend acquiring capture. So if he lies for hours upon hours during his interview, now we've got 11 hours of videotape when finally the facts are so compelling that the defendant, the accused, says, "Okay, I did it," and tells us what happened. What happens then is that the prosecutor now has 11 hours of videotape, ten hours of lies. Am I to show that to a jury? Do the defense lawyer and the prosecutor decide? We can't decide on what to have on a pizza. How in the world can we decide on what to show to a jury?
ELIZABETH BRACKETT: Will the videotaping change police procedure?
RITA FRY: Well, it may not change their behavior, but it certainly will emphasize how the statement was arrived at. And when you start talking about motions to suppress statements, you will have a real basis for why that statement was not voluntary and why that statement was not true, and why the suspect felt the need to make that statement. Right now the interrogation is not taped, but the statement is taped. But it doesn't mean the statement is true.
ELIZABETH BRACKETT: If the commission's recommendations are adopted, prosecutors could no longer rely solely on testimony from jailhouse snitches, testimony from accomplices, or testimony from witnesses who have been given a deal by prosecutors. That kind of testimony was used in the trials of well over half of the 289 people sentenced to death in Illinois since 1977, when the death penalty was reinstated.
Perry Cobb is one of those cases. Testimony from an alleged accomplice sent him to Death Row for eight years for a crime he did not commit. Now 60, Cobb says he can never regain those lost years.
PERRY COBB, Freed from Death Row: When I went to Death Row, I had a family. I had a wife and children, father and mother; I had grandparents, uncles, cousins that I was very, very close to. When I came home, I didn't have no grandparents, I didn't have no wife. It destroyed everything.
ELIZABETH BRACKETT: But Petka says such testimony, particularly jailhouse snitch testimony, can be important to a case.
EDWARD PETKA: If we don't permit that type of testimony, it may strongly hinder our search for the truth. The truth may be that the person committed the crime and confessed it or bragged about doing it.
ELIZABETH BRACKETT: Even though Governor Ryan has been lauded nationally and internationally for imposing the moratorium and creating the commission, a political corruption scandal in Illinois has left him without the political clout to push the reforms through the legislature. But at present, 163 people remain on Death Row in Illinois, and the question now is, what should their fate be?
ROB WARDEN: The only answer is to commute those sentences. It would be unconscionable for us as a society to execute somebody based on a system that has been shown to be so incredibly fallible.
ELIZABETH BRACKETT: Governor Ryan does have the ability to grant pardons, and he has said he will review all 163 cases before he leaves office. Senator Petka has some advice.
EDWARD PETKA: He certainly ought to not give them blanket amnesty. If in fact he is intent on a blanket amnesty, my strongly worded suggestion would be, "let your successor deal with the situation, not you, because you were not elected on a..." and would not have been elected as governor of the state if he had campaigned on a promise to free people from Death Row.
ELIZABETH BRACKETT: The governor has not promised to free people, but he says he will keep the moratorium in place until the end of his term.