Capital Punishment in Illinois in the Aftermath of the Ryan Commutations: Reforms, Economic Realities, and a New Saliency for Issues of Cost
Bienen, Leigh B., Journal of Criminal Law and Criminology
When I first came to Illinois from New Jersey in 1995, nothing suggested change was coming in the pattern or practice of capital punishment in Illinois. There were more than 160 people on death row in Illinois. (2) By contrast, in 1996 New Jersey had twelve people on death row. (3) The New Jersey Office of the Public Defender had a strong statewide administrative structure and a centralized budget. The New Jersey Department of the Public Advocate spent millions of dollars for defense attorneys to challenge every aspect of every death sentence imposed after reenactment in 1982. (4) The public defenders then brought each death sentence to the extraordinarily conscientious New Jersey Supreme Court for constitutional review and proportionality analysis. (5) Capital practice in Illinois had none of these institutionalized traditions.
Nor was there any state court or institution in Illinois that would have been inclined to or capable of undertaking the kind of comprehensive system-wide review and analysis of capital case processing such as that conducted by the New Jersey Supreme Court under the rubric of proportionality review. The Illinois Supreme Court was unreceptive to constitutional challenges to the statute or to the system. (6) Since the 1970s the court has consistently refused to consider constitutional challenges to the application of the statute based upon evidence of racial or geographic disparities in death penalty prosecutions and sentencing. (7) There were brief moments, first in 1979 and then again in 1984, when the constitutionality of capital punishment was a live issue before the Illinois Supreme Court and federal courts in Illinois. (8) However, since that time the Illinois Supreme Court has indicated in numerous opinions and through other institutional signals that it is uninterested in any system-wide challenge to the capital punishment system. (9)
In 1984, the United States Supreme Court ruled that statewide proportionality review was not required in order to comply with the Fourteenth and Eighth Amendments to the United States Constitution. (10) Since then the Illinois Supreme Court has repeatedly declared that it need not and would not in the future use proportionality review to conduct a systematic statewide analysis of the patterns in the application of the death penalty arising from the fact that the 102 elected county state's attorneys each individually select cases for capital prosecution. (11) The state high court has regularly affirmed death sentences, and has expressed the view that the scope of its review would be purely procedural. (12) However, an external study of Illinois death sentences found that as of 1995, 40% of the death sentences that reached the stage of federal habeas corpus under the former, more permissive federal rules were remanded for retrial or resentencing. (13)
In 1995, capital punishment was firmly entrenched in Illinois and appeared impregnable* Public support for the death penalty was high. (14) No strong legal institutions or powerful political constituencies challenged it. The 102 elected county prosecutors, the state legislators, the attorney general, and the Governor all were strong supporters, and Illinois had begun conducting executions. (15) No court or legal authority in the jurisdiction seemed likely to interfere with the steady accumulation of death sentences coming up from the county prosecutions or the inevitability of future executions. Capital cases continued to be prosecuted; death sentences were imposed in the trial courts and affirmed on appeal; although the appeals took a while, executions had begun, and the prospect was only of more impending executions. (16) Given the breadth and number of the aggravating factors in the Illinois death penalty statute, (17) it seemed in 1995 as if there was always a capital case being zealously investigated and prosecuted, or an execution on deck. Nothing seemed poised to interfere with that progression. …