December 21, 2002

BY AYSE BERTENTHAL, ELIZABETH HESS AND CLARE PINKERT

byline:By Alyse Bertenthal, Elizabeth Hess, and Clare Pinkert

We commend Gov. Ryan for making death penalty reform the hallmark of his governorship. We salute him for declaring the three-year moratorium on executions and for creating the Governor's Commission on Capital Punishment. But the death penalty system in Illinois is inherently and systemically flawed. Thirteen men, sentenced by Illinois' broken system, have subsequently been found to be innocent of the crimes for which they received the death penalty. To assure the citizens of Illinois that no innocent people will be executed, Ryan must take one more step: He must commute the sentences of the inmates awaiting execution to life imprisonment without parole.

We work at the University of Chicago Law School's MacArthur Justice Center. We have reviewed 161 requests for clemency (including requests made on behalf of 23 men unwilling to sign their petitions) that were submitted on behalf of Death Row inmates to the governor. Our analysis yields strong evidence of the systemic flaws plaguing the Illinois system of capital punishment.

The very first recommendation made by the Governor's Commission is that the interrogations of in-custody defendants be videotaped by law enforcement officials. This recommendation was spurred by several notable cases and reflects the need to preserve evidence that interrogations have been conducted fairly and without coercion. Sixty-six of the pending Death Row clemency petitions claim that the conviction is based in part on a confession following an in-custody interrogation that was not videotaped.

The Governor's Commission concluded that prohibiting the execution of the mentally retarded was essential because it is wrong for society to put to death persons of such limited intelligence. The Supreme Court of the United States agrees that the execution of the mentally retarded is unconstitutional. Nonetheless, 22 of the pending clemency requests assert that the Death Row inmate is mentally retarded.

The use of DNA and other types of forensic evidence has become increasingly common in capital murder trials. In order to remove any bias and to ensure the accuracy of the forensic analysis, the Governor's Commission recommends that an independent state forensic laboratory conduct any analysis to be used in a death penalty case. However, 46 petitions allege that capital convictions were obtained on the basis of forensic evidence developed by a police agency laboratory, rather than an independent lab.

Death penalty convictions have routinely been obtained in Illinois on the basis of testimony from an in-custody informant, or ''jailhouse snitch.'' Such testimony is notoriously unreliable. The Governor's Commission acknowledged that such testimony has contributed to the death penalty's systemic flaws and indicated such evidence may not be introduced at trial without pretrial determination of the reliability or admissibility of the testimony. Despite the known unreliability of this type of evidence, 24 petitioners allege that they were convicted on the basis of an in-custody informant's testimony.

This list could be extended. But the point is clear: The petitions before the governor reflect problems in the administration of capital punishment that are not limited to isolated cases. Historically, the executive clemency power has been used to correct systemic injustice. Presidents such as Abraham Lincoln and Thomas Jefferson have exercised clemency to remedy systemic unfairness. Governors have also exercised their executive clemency authority to correct flawed systems of capital punishment. If Ryan commutes Illinois death sentences to life imprisonment, he would be joining Governors Tony Anaya of New Mexico, who commuted that state's entire Death Row in 1986; Winthrop Rockefeller of Arkansas, who did the same in 1970, and Robert Holmes of Oregon, who commuted the death sentences of every condemned prisoner who came before him.

We are gravely concerned about the flawed system that sentenced the Illinois Death Row inmates. Ryan has promised the people of Illinois this state will not execute any innocent people. It behooves him to seize this moment and exercise his executive authority to commute the sentences of those on Death Row.

Alyse Bertenthal, Elizabeth Hess and Clare Pinkert are law students at the University of Chicago Law School.