[Senate Hearing 107-907]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 107-907
 
                  REDUCING THE RISK OF EXECUTING THE 
 INNOCENT: THE REPORT OF THE ILLINOIS GOVERNOR'S COMMISSION ON CAPITAL 
                               PUNISHMENT
=======================================================================

                                HEARING

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 12, 2002

                               __________

                          Serial No. J-107-85

                               __________

         Printed for the use of the Committee on the Judiciary

                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

                    Subcommittee on the Constitution

                RUSSELL D. FEINGOLD, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont            STROM THURMOND, South Carolina
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          MITCH McCONNELL, Kentucky
                 Robert Schiff, Majority Chief Counsel
                 Garry Malphrus, Minority Chief Counsel






                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    24
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   138
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina, prepared statement...................................   159

                               WITNESSES

Bettenhausen, Matthew R., Deputy Governor for Criminal Justice 
  and Public Safety, State of Illinois, and Executive Director, 
  Illinois Governor's Commission on Capital Punishment...........     4
Hubert, Donald, Hubert, Fowler and Quinn, Chicago, Illinois, and 
  Member, Illinois Governor's Commission on Capital Punishment...    14
Kinsella, John J., First Assistant State's Attorney, DuPage 
  County, Illinois...............................................     7
Marshall, Lawrence C., Professor of Law, Northwestern University 
  School of Law, and Legal Director, Center on Wrongful 
  Convictions, Northwestern University...........................    26
Ryan, Hon. George, Governor, State of Illinois...................    19
Scheidegger, Kent, Legal Director, Criminal Justice Legal 
  Foundation, Sacramento, California.............................    12
Turow, Scott, Sonnenschein, Nath and Rosenthal, Chicago, 
  Illinois, and Member, Illinois Governor's Commission on Capital 
  Punishment.....................................................    10
White, Druanne, Solicitor, Tenth Judicial Circuit, State of South 
  Carolina.......................................................    16

                         QUESTIONS AND ANSWERS

Responses of Don Hubert to questions submitted by Senator 
  Sessions.......................................................    39
Responses of Don Hubert to questions submitted by Senator 
  Thurmond.......................................................    42
Responses of Lawrence Marshall to questions submitted by Senator 
  Thurmond.......................................................    45
Responses of Kent Scheidegger to questions submitted by Senator 
  Thurmond.......................................................    48
Responses of Scott Turow to questions submitted by Senator 
  Thurmond.......................................................    51
Responses of Druanne White to questions submitted by Senator 
  Thurmond.......................................................    62

                       SUBMISSIONS FOR THE RECORD

American Bar Association, James E. Coleman, Jr., Chair, Death 
  Penalty Moratorium Implementation Project, Washington, D.C.....    64
American Civil Liberties Union, Rachel King, Legislative Counsel, 
  Washington, D.C., letter and attachments.......................    66
Bettenhausen, Matthew R., Deputy Governor for Criminal Justice 
  and Public Safety, State of Illinois, and Executive Director, 
  Illinois Governor's Commission on Capital Punishment, prepared 
  statement......................................................    80
Fraternal Order of Police, Steve Young, National President, 
  Washington, D.C., letter.......................................    99
Federal Law Enforcement Officers Association, Richard Gallo, 
  President, Washington, D.C., letter............................   102
Hubert, Donald, Hubert, Fowler and Quinn, Chicago, Illinois, and 
  Member, Illinois Governor's Commission on Capital Punishment, 
  prepared statement.............................................   103
Illinois State's Attorneys Association, Chicago, Illinois, 
  statement......................................................   107
Jacoby, Jeff:
    Boston Globe, June 2, 2002, editorial........................   125
    Boston Globe, June 6, 2002, editorial........................   128
Kinsella, John J., First Assistant State's Attorney, DuPage 
  County, Illinois, prepared statement...........................   131
Lee, Christopher, Dallas Morning News, September 27, 2000, 
  article........................................................   139
Marshall, Lawrence C., Professor of Law, Northwestern University 
  School of Law, and Legal Director, Center on Wrongful 
  Convictions, Northwestern University, prepared statement.......   142
Presbyterian Church (USA), Washington Office, National Ministries 
  Division, Rev. Elenora Giddings Ivory, Director, Washington, 
  D.C., letter...................................................   148
Rubin, Paul H., Atlanta Journal-Constitution, March 13, 2002, 
  editorial......................................................   150
Ryan, Hon. George, Governor, State of Illinois, prepared 
  statement......................................................   151
Scheidegger, Kent, Legal Director, Criminal Justice Legal 
  Foundation, Sacramento, California, prepared statement.........   155
Turow, Scott, Sonnenschein, Nath and Rosenthal, Chicago, 
  Illinois, and Member, Illinois Governor's Commission on Capital 
  Punishment, prepared statement.................................   171
White, Druanne, Solicitor, Tenth Judicial Circuit, State of South 
  Carolina, prepared statement...................................   180


REDUCING THE RISK OF EXECUTING THE INNOCENT: THE REPORT OF THE ILLINOIS 
              GOVERNOR'S COMMISSION ON CAPITAL PUNISHMENT

                              ----------                              


                        WEDNESDAY, JUNE 12, 2002

                              United States Senate,
                          Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The subcommittee met, pursuant to notice, at 9:04 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, chairman of the subcommittee, presiding.
    Present: Senators Feingold and Durbin.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Chairman Feingold. This hearing will come to order, and 
good morning.
    Welcome to this hearing of the Senate Judiciary Committee, 
Subcommittee on the Constitution, and I want to thank everyone 
for coming here so early this morning. We are starting an hour 
earlier than usual, Senate time, in order to complete this 
hearing by 11:00 a.m., when there is a Joint Session of 
Congress that will be convened to hear an address from the 
Prime Minister of Australia.
    This hearing today will explore the bold, unique, yet 
entirely reasonable response by Governor George Ryan and the 
people of Illinois to flaws in the current administration of 
the death penalty, most notably, the risk of executing innocent 
people.
    Earlier this year, our Nation hit what I would have to 
regard and I think most people would regard as a very troubling 
milestone: the 100th innocent person in the modern death 
penalty era was exonerated and released from death row. A few 
weeks later, we hit 101. During this same period, there have 
been close to 800 executions at the State and Federal levels. 
This means that the system is so fraught with error that, for 
every eight executions, there has been one person on death row 
later found innocent in the modern death penalty era. Of 
course, for every innocent person wrongfully convicted, a 
guilty person has likely gone free and may still be able to 
commit more crimes.
    The 100th death row inmate to be exonerated is Ray Krone. 
Mr. Krone was wrongfully convicted and served 10 years in the 
Arizona prisons for a murder he did not commit, before he 
finally walked out a free man. Faulty forensic analysis and 
circumstantial evidence led to Mr. Krone's conviction. But a 
DNA test set him free and points to another man as the killer. 
Mr. Krone is in the audience today, and, Mr. Krone, thank you 
for joining us today. Where is Mr. Krone? Thank you very much.
    Two other men who share the same dubious distinction are 
also with us today: Kirk Bloodsworth and Juan Melendez. Mr. 
Bloodsworth served 9 years in the Maryland prisons, including 
some time on death row, for a rape and murder he did not 
commit. Mr. Bloodsworth was convicted primarily on the basis of 
faulty eyewitness testimony. Like Mr. Krone, a DNA test was the 
key to his freedom. It is good to see you here, sir.
    Mr. Melendez sat on death row in Florida for almost two 
decades before a court finally overturned his murder 
conviction. The court cited the prosecution's failure to 
provide the defense with critical evidence and the lack of 
physical evidence linking him to the crime. After the court's 
decision, State prosecutors announced that they would drop the 
charges against him. Mr. Melendez was released earlier this 
year. Mr. Melendez, thank you for joining us. Where is Mr. 
Melendez? Thank you for being here.
    These men--Mr. Krone, Mr. Bloodsworth, Mr. Melendez--and 
the other 98 innocent former death row inmates are the reason 
we are having today's hearing. These are not abstractions. They 
are real people, innocent men who suffered for years under the 
very real possibility of being put to death for crimes that 
they did not commit.
    There is no question that those who perpetrate heinous 
crimes should be punished and punished severely. And there is 
no question that the family and friends of murder victims bear 
an awful, painful burden for the rest of their lives. Society 
owes them our most steadfast effort to bring the perpetrators 
to justice and sentence them severely. But society also has a 
responsibility to ensure that only the guilty are convicted and 
punished.
    This hearing will explore the steps that one State--
Illinois--has taken to address this difficult dilemma. In 
Illinois, after 13 death row inmates were exonerated and 
released, as compared with the 12 executions carried out after 
the death penalty was reinstated in 1977, a consensus emerged 
among both death penalty opponents and proponents that the 
State's death penalty system was broken. Two years ago, on 
January 31, 2000, Governor Ryan took the courageous step of 
placing a moratorium on executions in Illinois.
    Governor Ryan then created an independent, blue-ribbon 
commission of present and former prosecutors, public defenders, 
a former Federal judge, and various distinguished Illinois 
citizens, including one of our former colleagues and my dear 
friend, Senator Paul Simon. Governor Ryan instructed this 
Commission to review the State's death penalty system and to 
advise him on how to reduce the risk of executing the innocent 
and ensure fairness in the system. Governor Ryan's decision to 
suspend executions and create a commission sparked a national 
debate on the fairness of the current administration of the 
death penalty.
    After 2 years of work, the Illinois Governor's Commission 
on Capital Punishment completed its task and released its 
report in April of this year. The Commission set forth 85 
recommendations for the reform of the Illinois death penalty 
system. These recommendations address difficult issues like 
inadequate defense counsel, execution of the mentally retarded, 
coerced confessions, and the problem of wrongful convictions 
based solely on the testimony of a jailhouse snitch or a single 
eyewitness. The Commission's work is the first comprehensive 
review of a death penalty system undertaken by a State or 
Federal government in the modern death penalty era. We will 
hear more about the Commission's work and its recommendations 
in this hearing.
    The risk of executing the innocent and other flaws in the 
administration of the death penalty are not unique to Illinois. 
The 101 innocent people who were sent to death row and later 
exonerated come from 24 different States. In addition to 
Illinois, exonerations of people sentenced to death have 
occurred in Alabama, Arizona, California, Florida, Georgia, 
Idaho, Indiana, Louisiana, Maryland, Massachusetts, 
Mississippi, Missouri, Nebraska, Nevada, New Mexico, North 
Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, 
Virginia, and Washington.
    Just last month, Governor Parris Glendening of Maryland 
placed a moratorium on executions in his State to allow a study 
of racial disparities he ordered 2 years ago to be completed. 
And I commend Governor Glendening for his leadership, and I 
hope that other Governors follow the lead of Governor Ryan and 
Governor Glendening.
    But I also believe that Congress has an important 
responsibility to ensure that innocent people are not executed 
and that constitutional protections are respected in the 
administration of capital punishment across the country.
    I have introduced a bill that would apply essentially the 
Illinois model to the rest of the Nation. The National Death 
Penalty Moratorium Act, Senate bill 233, would enact a 
moratorium on Federal executions and urge the States to do the 
same, while a National Commission on the Death Penalty examines 
the fairness of the administration of the death penalty at the 
Federal and State levels.
    I do not expect our witnesses today to discuss or debate 
the provisions of my bill. Rather, this hearing is intended to 
educate Congress and the American people about the Illinois 
experience with a moratorium and review of the death penalty 
system.
    This morning we will have two panels of witnesses. Illinois 
Governor George Ryan is the sole witness on panel one. On panel 
two, we will have three members of the Illinois Commission as 
well as outside experts and prosecutors from Illinois and South 
Carolina. To accommodate Governor Ryan's schedule, who will be 
appearing over video, however, we will proceed first with panel 
two. At approximately 10:00 a.m., we will take a brief break 
from panel two and turn to Governor Ryan. Following Governor 
Ryan's statement and any questions for the Governor, we will 
return to panel two, and I want to thank my colleagues and the 
panel two witnesses for their flexibility.
    Senator Thurmond, the ranking member of the subcommittee, 
has submitted a statement for the record which will be entered 
into the record without objection.
    [The prepared statement of Senator Thurmond appears as a 
submission for the record.]
    Chairman Feingold. And as I understand it, there will be no 
live opening statement from the Republican side. Is that 
correct?
    And, therefore, I believe we can move forward to the panel 
that is already assembled in front of us.
    Our first witness, also appearing through video, is Matt 
Bettenhausen. He is the Illinois Deputy Governor for Criminal 
Justice. Mr. Bettenhausen is a former attorney with the United 
States Attorney's Office for the Northern District of Illinois. 
He served as Executive Director of the Illinois Governor's 
Commission on Capital Punishment. I want to thank you, Mr. 
Bettenhausen, for taking the time to testify before the 
committee today during what I know is a very important time for 
the Illinois Legislature, and you may proceed.

   STATEMENT OF MATTHEW R. BETTENHAUSEN, DEPUTY GOVERNOR FOR 
  CRIMINAL JUSTICE AND PUBLIC SAFETY, STATE OF ILLINOIS, AND 
 EXECUTIVE DIRECTOR, ILLINOIS GOVERNOR'S COMMISSION ON CAPITAL 
                           PUNISHMENT

    Mr. Bettenhausen. Thank you, Chairperson Feingold and 
distinguished members of the United States Senate. First of 
all, let me thank you for accommodating the Governor's and my 
schedule. As you know, the Governor had to call the General 
Assembly into special session because of the budget problems 
that we are having here in Illinois. And given those problems, 
I certainly would much more prefer to be there in Washington, 
D.C., with you. But I am honored and privileged to be before 
you this morning to talk about the work of the Governor's 
Commission on Capital Punishment, and I think it is very 
appropriate that we are before this committee as you have 
demonstrated that you have been champions of fairness and have 
helped to ensure that justice is in our justice system.
    Senator Feingold, as you know, it was approximately a year 
and a half ago that I was working with your staff along with 
staff of Congressman LaHood, Illinois' very own Congressman 
LaHood, in drafting the Innocence Protection Act that you have 
introduced and Congressman LaHood has sponsored. As you know, 
some of those provisions were modeled after the reforms that we 
have already made here in Illinois. And one of those important 
provisions, as Senator Feingold pointed out, is DNA testing. An 
important provision that we have had here in Illinois--and it 
is in the Innocence Protection Act--is to provide for post-
conviction DNA testing.
    As you know, Illinois' track record since reinstating 
capital punishment in 1977 speaks for itself. It does not speak 
well for itself. In that time, we have had 12 individuals 
executed; 13 other individuals have been released and 
exonerated. Five of those 13 were released based on post-
conviction DNA testing. It is an important tool for not only 
bringing the wrongfully convicted but also accurately 
convicting the guilty.
    I am happy to be here to discuss the work of the Governor's 
Commission, which conducted extensive research and analysis of 
Illinois' capital punishment system from the initial police 
investigation to trial, appeal, and post-conviction review.
    As Senator Feingold has noted, there are some 85 
recommendations in our report for reform, in addition to the 
significant reforms that we have already made in Illinois, such 
as providing for post-conviction DNA testing, providing 
compensation for those who have been wrongfully convicted, 
providing a capital litigation trust fund to provide moneys to 
defense attorneys and prosecutors so that cases are 
investigated thoroughly and accurately from the beginning and 
to make sure that they are tried properly in the first 
instance. We actually give a framework and highlight some of 
the important recommendations of the Commission.
    Obviously, with the 85 recommendations and the 2 years of 
work that the panel put together, I can only briefly hit some 
of the more important recommendations that the Commission is 
making.
    As you know, one of the things that we studied is the 
disparities and potential discrimination that you see in the 
capital punishment system. Here in Illinois, we have 102 
counties. That means there are 102 different decision makers 
who decide whether a defendant will get the death penalty. That 
results in disparity in treatment. You can have an individual, 
the same crime, like facts, who could get a 40-year sentence in 
southern Illinois and could get the death penalty in northern 
Illinois. We did that study, and we found that there was 
disparity in sentencing in our capital punishment system here 
in Illinois based both on geography as well as the race of the 
victim.
    Based on that as well as the Governor's concern, while not 
trying to impinge or impugn any of the State's attorneys and 
their prerogatives, the Governor--this is one State, and he has 
to look at one State, and when he looks at these individuals 
who have been sentenced to death, we must have a uniform 
system. An important recommendation of the Commission is that 
we have a statewide panel that reviews any prosecutor's 
decision to seek the death penalty, and that panel must sign 
off on each of the decisions that are made. It is very similar 
to the Federal system where the United States Attorney General 
must sign off on each of the--on any decision in which the 
death penalty is sought.
    As you noted, we have also recommended that Illinois ban 
the imposition of the death penalty on those who are mentally 
retarded. We hope that that will be enacted soon, and perhaps 
it may not be enacted, as you know, because the Supreme Court 
has several cases before it currently considering whether, in 
fact, we have become a more enlightened society that cannot 
tolerate the execution of the mentally retarded.
    We have also recommended that we significantly reduce the 
current list of death eligibility factors. When the Supreme 
Court allowed capital punishment to be reinstated after having 
found it unconstitutional because too many death cases, too 
many murder cases qualified, we have found here in Illinois 
that basically we have expanded in that 25-year time period the 
eligibility factors so that almost any murder could qualify for 
the death penalty, could put it not only in constitutional 
jeopardy but also the concerns of both prosecutors, defense 
attorneys, everyone uniformly that the Commission heard from, 
everybody said there were too many death eligibility factors 
and that we should reserve, if we are going to have capital 
punishment, for those cases that involve the most heinous of 
crimes.
    We also said and recommended that no person be sentenced to 
death based solely on the uncorroborated testimony of a single 
eyewitness or accomplish or jailhouse snitch.
    We also found in our study of the 200-some death cases 
since the death penalty was reinstated here in Illinois that 
jailhouse informants, snitches, played an important role in 
some of the wrongful convictions. Therefore, we made a number 
of recommendations, such as a reliability hearing that should 
be had before the testimony is heard, very similar to the kind 
of hearing that courts go through before allowing expert 
testimony.
    We also believe that juries must be instructed about the 
dangers of this testimony and that there must be full 
disclosure of the benefits conferred on those individuals for 
their testimony.
    While we have a number of jurisdictions that have agreed to 
voluntary videotaping of statements and also some who tape the 
entire interrogation process, the Commission has recommended 
that that be the rule rather than the exception here in 
Illinois.
    We also believe and recommend that trial judges should be 
required to concur or reverse a jury's death sentence verdict. 
That allows the court to consider in making pre-trial rulings 
that the court has not heard all of the evidence, does not 
understand how all--gives them the chance to review and revisit 
those issues to make sure that the death sentence is an 
appropriate sentence and signing off on it.
    In addition, Illinois does not allow for proportionality 
review and does not provide for it by the Illinois Supreme 
Court. Again, we believe and recommend that the Illinois 
Supreme Court should conduct proportionality reviews and make 
sure that the sentence is not excessive or disproportionate to 
the penalty imposed in similar cases.
    We also found in our study of the investigation of cases of 
wrongful convictions that eyewitness testimony, the 
unreliability of eyewitness testimony could be rectified by 
changing eyewitness identification procedures. We have adopted 
some of the recommendations created by the Department of 
Justice in researching on how to do line-up procedures and 
photo spread procedures to make sure that we are not trying--
but to assure the accuracy of eyewitness testimony.
    We have also had a number of confusing jury instructions in 
the State, and the juries are not instructed about all 
potential sentences. We believe and we have recommended on this 
Commission that the jury be told that information so that there 
isn't improper speculation and that we really improve the 
truth-seeking process.
    I have just touched on a number of the important 
recommendations that we have made, and I hope that that gives a 
framework of the kinds of issues that we are looking at and the 
kinds of recommendations that we have made.
    I thank you for the opportunity to be here today.
    [The prepared statement of Mr. Bettenhausen appears as a 
submission for the record.]
    Chairman Feingold. Thank you very much, Mr. Bettenhausen. I 
appreciate your discussion of what has been done in Illinois, 
and I am told this may be the first time that the committee has 
used this video approach for listening to a witness, and I 
think it worked out well, and I want to thank the recording 
studio and the technical people for making it possible to hear 
you and, later on, Governor Ryan. And we will have some 
questions for you later. Thank you very much.
    Now we will move on to John Kinsella, who is the First 
Assistant State's Attorney in DuPage County, Illinois, and he 
has served as an Illinois prosecutor for 21 years. Mr. Kinsella 
is currently the first vice president of the Illinois 
Prosecutors Bar Association, and he has taught and lectured for 
the National College of District Attorneys, the Illinois 
State's Attorneys Association, and the Illinois Appellate 
Prosecutor's Office. We welcome you to the panel today, and you 
may proceed.

    STATEMENT OF JOHN J. KINSELLA, FIRST ASSISTANT STATE'S 
               ATTORNEY, DUPAGE COUNTY, ILLINOIS

    Mr. Kinsella. Thank you, Senator. First of all, it is an 
honor and a privilege, certainly, to be here, and it is a 
rather daunting task to represent all the men and women of the 
prosecution profession in Illinois, but I will do my very best 
to do that.
    As you have indicated, I have been a prosecutor for 
approximately 21 years and have handled personally several 
death penalty cases at trial level as well as procedurally. In 
fact, the last person executed in Illinois was a case I handled 
at the end of those proceedings, Andrew Kokoraleis, who was 
convicted of being involved in the mutilation and murder of 16 
women, and he was the last person executed in Illinois on March 
17, 1999.
    First of all, I want to make the point that the death 
penalty in Illinois is still the law. There are still juries 
hearing death penalty cases. Death sentences are being handed 
out, and the Illinois Supreme Court is currently affirming 
death sentence cases. So the moratorium--and I should probably 
address that first. I think you suggested that it was welcomed 
by many. In fact, I think I can speak on behalf of prosecutors 
who, I think for the most part, objected to the concept. And 
the basis is this, Senator: that there have been about 
approximately 300 persons since 1977 sentenced to death. There 
are approximately 170 on death row currently. And while 12 have 
been executed, there are 10 cases from which 13 individuals who 
at one time were sentenced to death were later either acquitted 
or, in fact, the cases were dismissed. We do not believe 
generally as prosecutors that this reflects that the system is 
broken. Those cases, some of them, are very troubling and they 
certainly should be examined and reviewed. But we believe that 
the overwhelming majority of police officers and prosecutors in 
Illinois do an outstanding job seeking justice and sought 
appropriate sentences in these cases.
    In essence, the moratorium has put a hold on the progress 
of all these cases that are currently in the system. The 
moratorium, the Illinois Supreme Court has already ruled the 
new rules that have been put in place before the Commission 
report or any resulting changes do not apply to these other 
cases. So, in essence, the cases have progressed to the point, 
they have gone through all of the myriad levels of review, have 
been on hold since the time of this moratorium, we believe, 
prosecutors believe that each and every one of these cases are 
unique, different, and should be examined on their own merits 
and that the system that we are talking about being broken is 
our Anglo-American system of justice, our method of finding 
truth. This is not about the death penalty per se in Illinois 
or the Illinois statute. The cases that have been cited as 
wrongful convictions or innocent persons are cases which were 
tried under the rules that apply certainly in Illinois and, for 
the most part, are uniformly the same across this country.
    And to the extent that a case was tried which someone 
concludes resulted in an erroneous verdict, that is 
troublesome, should be looked at, and our system of justice 
should be constantly under review, constantly being examined, 
constantly being changed. And that is our history. This is not 
a stagnant process.
    In fact, the law in Illinois has changed dramatically since 
this debate started in 1999, and I would suggest that the 
changes imposed by rules of the Supreme Court address the most 
glaring problems that were talked about when this debate began, 
which was a grossly underfunded defense, incompetent attorneys, 
judges who were not properly trained, and prosecutors who, 
frankly, in some instances created their own problems by also 
being improperly trained.
    So these issues--this is not a stagnant question. We took a 
serious look at the death penalty in Illinois over the last 
several years. The system has changed dramatically. We do not 
believe that as a result of these 13 cases that all death 
penalty judgments handed down in Illinois are somehow flawed. 
In fact, many of these people, Senator, pled guilty to those 
crimes. There is not a serious question in many of these cases 
of a claim of actual innocence. And yet they are all thrown 
into the same hopper with cases which were--where there are 
claims of actual innocence.
    Frankly, the question that troubles me as well is that we 
decide to say that any person ever having been convicted and 
sentenced to death and later acquitted was, in fact, innocent. 
In fact, one of the cases that is cited, one of the 13, the 
Illinois Supreme Court specifically said it wasn't saying that. 
And yet it is quoted as being a case in which the defendant was 
found innocent. The Supreme Court, and I quote, said, ``While a 
not-guilty finding is sometimes equated with a finding of 
innocence, that conclusion is erroneous.'' Courts do not find 
people guilty or innocent.
    Now, I am not suggesting that some of these people aren't, 
in fact, innocent. Some of them clearly are, and we can debate 
which ones. And, frankly, if it is one or 13, it doesn't 
matter. It certainly raises questions and issues that we need 
to address, and we welcome that debate.
    But I also believe in the rhetoric of the emotions of the 
death penalty, which is certainly an emotional issue, we 
sometimes get beyond a true objective examination of the facts, 
and that troubles prosecutors in Illinois.
    We believe the system should be examined, should be 
reviewed, welcome the Commission's report. Without taking too 
much more time, we believe the Commission's report was 
underrepresented from prosecutors. There was only one active 
prosecutor on the Commission. As well, there was not a single 
police officer, and many of these proposals which we find 
troublesome deal with police procedure and police practice. And 
to have no one from that profession on the Commission we 
believe is a problem.
    Having said that, the Illinois State's Attorneys 
Association has issued a response indicating disagreement with 
only 18 of the proposals. So the reality is that the 
overwhelming majority of the proposals are supported by 
prosecutors, and the debate on the death penalty in the system 
is one which we should all--we should not just do this as a 
result of a newspaper story and a highlighting of driving 
public policy by the media. We should do this constantly. And I 
think if we do, the system will be in reality and in perception 
what we believe it to be, which is fair, just, and supportive 
of the overall majority view of the death penalty, that it is 
appropriate in some of the most brutal cases.
    Thank you.
    [The prepared statement of Mr. Kinsella appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Kinsella. Although I 
don't agree with the direction of your remarks, I appreciate 
the tone, and I want to say that I agree that these problems 
with the criminal justice system are not confined to the death 
penalty, and I am concerned about those aspects of it. But I 
think any reasonable person would agree, given the end of the 
story in the death penalty, that it is particularly important 
that these things be resolved, first and foremost, in that 
area. And that is why I admire what Governor Ryan did.
    I also appreciate your candor with regard to the issue of 
whether everybody on this list of 101 was actually innocent. I 
think we could debate that, but I am pleased that you concede 
that surely many of these people were obviously and 
demonstrably innocent--in fact, several of them are in this 
room--and that that is not acceptable. And I appreciate that as 
well.
    I should have said that there is a 5-minute limit on 
testimony. I didn't apply it to the first two, but any help you 
can give me in this regard would be appreciated because we have 
an absolute limit on time today.
    Without objection, at this time I enter into the record 
statements and supporting materials from the ACLU, Amnesty 
International, the National Association of Criminal Defense 
Lawyers, and the Presbyterian Church Washington Office.
    Chairman Feingold. Our next witness is Scott Turow, 
probably best known as an author of best-selling legal novels, 
is a member of the Illinois Governor's Commission on Capital 
Punishment. Mr. Turow served as an Assistant United States 
Attorney in the Northern District of Illinois for several years 
before joining the law firm of Sonnenschein, Nath and 
Rosenthal, where he is currently a partner.
    And I should confess, Mr. Turow, you were an upperclassman 
at the law school we both attended when I came there, and when 
I read your book, I almost turned around in terror that it 
would really be like that. And it was pretty accurate.
    Great book, great start to your writing career, and we are 
honored to have you here, Mr. Turow. You may proceed.

  STATEMENT OF SCOTT TUROW, SONNENSCHEIN, NATH AND ROSENTHAL, 
 CHICAGO, ILLINOIS, AND MEMBER, ILLINOIS GOVERNOR'S COMMISSION 
                     ON CAPITAL PUNISHMENT

    Mr. Turow. Thank you, Mr. Chairman. I am deeply honored to 
be here to testify before you today, and I am especially 
honored to be representing Governor Ryan's Commission on 
Capital Punishment.
    I want to start in my role as a representative of that 
Commission by responding to some of the remarks made by Mr. 
Kinsella and which I see repeated in some of the statements, 
particularly those which regard our Commission as biased.
    There was a statement made by Mr. Kinsella that only one 
active prosecutor was among the 14 people on the Commission. 
That, in fact, is not true. Kathy Dobrinie was the State's 
Attorney for Montgomery County when she was appointed. In 
addition, Michael Waller, of course, was not only the State's 
Attorney of Lake County but also the president of the State's 
Attorneys Association. In addition, my colleague Andrea Zopp, 
who is now in-house at a large corporate entity, was formerly 
the First Assistant State's Attorney for Cook County. William 
Martin was the prosecutor of perhaps one of the most if not the 
most famous serial murder case in Illinois, that of Richard 
Speck. And, in fact, nine of the 14 of us had prosecutorial 
experience.
    Included in that group, although Mr. Kinsella says there 
was not a single police official or representative on the 
Commission in his written statement was Mr. Thomas Needham, 
who, in fact, was the general counsel of the Chicago Police 
Department. Matt Bettenhausen, who has testified today, was and 
is the Director of Homeland Security for the State of Illinois, 
and even I sit on the Illinois State Police Merit Board. So I 
reject the characterizations of the membership of the 
Commission as unbalanced.
    Similarly, I am more troubled than Mr. Kinsella by a system 
which has exonerated more people than it has executed. There 
have been 12 executions in the State of Illinois since the 
death penalty was re-established and 13 exonerations of people 
on death row. And I have always regarded debates about whether 
somebody is factually or legally innocent as extremely 
inappropriate for lawyers. We exist in a system which places 
the burden on the State to prove guilt beyond a reasonable 
doubt, and when the State fails in that regard, all persons are 
entitled to be clothed with the enduring presumption of 
innocence. And it is not appropriate to get into the kinds of 
debates that I think are being raised by some of the comments 
made here.
    Mr. Kinsella also comments that the observations of the 
Commission would apply generally to everything in the criminal 
justice system and perhaps bring all the results into question. 
Certainly we emphasize that some of the reforms that we were 
recommending should have been applied--should be examined for 
possible general application. But the fact, Mr. Chairman, is 
that, as the Supreme Court has often commented, death is 
different, and I make reference in my full written statement to 
a case that was handled by Mr. Kinsella's office. I represented 
a young man named Alex Hernandez who was twice convicted--once 
convicted and sentenced to death; subsequently, after the case 
was reversed due to a finding of deliberate prosecutorial 
misuse of Bruton-protected statements, Mr. Hernandez and his 
co-defendant, Rolando Cruz, who was represented by Professor 
Marshall, Cruz was resentenced to death after a second trial, 
Hernandez to 80 years. And I am sure the members of the 
Commission know that both men were ultimately freed.
    Among the most compelling reasons for freeing them, of 
course, was that a man named Brian Dugan had confessed to the 
murder for which Cruz and Hernandez had both been sentenced to 
death. The corroboration of Dugan's statement is well 
documented in the record, and despite that, the office that Mr. 
Kinsella now sits as first assistant in persisted in the 
prosecution of these two men for 10 years after another man who 
ultimately proved to be a DNA match, after that man had given a 
well-corroborated confession to the crime which, in fact, was 
supported by the investigation of the Illinois State Police.
    And the lesson I draw from that, in contrast to what Mr. 
Kinsella has said, and perhaps other representatives on the 
panel today, is this--and I think it is the most important 
message I have for the subcommittee. I have been struck in the 
years that I have spent pondering the problem of capital 
punishment--to which, by the way, I might add, I am not morally 
opposed. I have been struck by the paradox. Capital punishment 
is reserved for the worst of the worst, and it is those murders 
which, by their character, most outrage the conscience of the 
community. And that fact, therefore, makes for the greatest 
challenge to our capital punishment system, because capital 
punishment is invoked in cases where emotion is most likely to 
hold sway and where rational deliberation is most problematic 
for everyone--for investigators, for prosecutors, for judges, 
for juries. We place an enormous burden on police officers and 
prosecutors when we take hideous crimes and say to them you 
must find the killer, you must protect all of us.
    And because this is a system which in rare instances tempts 
bad faith, it is a system that I believe merits the enhanced 
safeguards that our Commission has proposed.
    Deputy Governor Bettenhausen has illuminated some of those, 
and I need not go on about that at length. But I think that we 
have to recognize the inflammatory nature of capital crimes and 
say at the threshold that death and capital punishment is very 
different and requires far more thorough safeguards.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Turow appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Turow. I appreciate your 
comments, especially in light of the fact that, as you 
indicated, you are not necessarily an opponent of the death 
penalty per se. And this distinction that you made in terms of 
the use of the word ``innocent,'' every single one of these 101 
people are, by definition, according to our legal system, 
innocent.
    Mr. Turow. Yes, sir.
    Chairman Feingold. Period.
    Mr. Turow. Yes, sir.
    Chairman Feingold. That is our system.
    I would add that we also know that a great percentage of 
them didn't do it. So if somebody doesn't like the legal 
technicalities, we know for sure that in quite a number of 
these cases, they didn't do it. And I think it is very 
important to constantly keep those two things in mind, and I 
appreciate your testimony.
    Without objection, I will enter into the record at Senator 
Thurmond's request a letter from the Federal Law Enforcement 
Officers Association.
    Chairman Feingold. And now we are pleased to turn to Kent 
Scheidegger, who is Legal Director of the Criminal Justice 
Legal Foundation in Sacramento, California. Thank you for being 
here, sir, and you may proceed.

STATEMENT OF KENT SCHEIDEGGER, LEGAL DIRECTOR, CRIMINAL JUSTICE 
            LEGAL FOUNDATION, SACRAMENTO, CALIFORNIA

    Mr. Scheidegger. Thank you very much, Mr. Chairman. I 
appreciate the opportunity to speak today.
    The correct identification and the sufficient punishment of 
murderers is, of course, a matter of great importance. There is 
no more important function of the State governments than the 
protection of its citizens from murder. The performance of this 
function, while protecting the actually innocent, deserves the 
greatest attention and care. Regrettably, there has been a 
great deal of misleading information circulating on the subject 
of capital punishment, so I welcome the opportunity to at least 
make a start today.
    I very strongly disagree with Mr. Turow that, in the 
context of this proceeding, it is inappropriate for us to 
consider whether a person is factually innocent or not. In the 
legislative branch, it is entirely appropriate, considering 
matters of policy, to consider whether these 101 cases are 
innocent people who at one point were wrongly convicted or 
guilty people who have now been wrongly freed, because there 
are many falling in that category.
    You mentioned California, Senator. There are no cases in 
California of persons proven innocent. One of the most 
notorious cases, the case of Jerry Bigelow, the jury on the 
second trial found him guilty of the robbery in which the 
victim was killed, which by itself is sufficient to make him 
guilty of murder. It also found it true that he intended to 
kill the victim, and yet it wrongly and inexplicably acquitted 
him of murder. Our system of justice does give the defendant 
the benefit of the acquittal in that situation, but that does 
not make him an innocent man wrongly convicted.
    So the 101 number is wrong if it is asserted as people 
actually innocent, and that is the policy basis, as opposed to 
the legal basis, on which it is so often asserted, and it ought 
not be considered for that purpose.
    The focus of today's hearing is on the actual guilt or 
innocence. This change of focus is welcome and long overdue. 
For three decades, the American people have suffered inordinate 
delay, exorbitant expense, and extended litigation over issues 
having nothing to do with guilt, which are not in the 
Constitution as originally enacted, and which involve 
sentencing policy decisions of dubious merit.
    Congress should certainly be concerned with further 
reducing the already small possibility of conviction of the 
innocent regardless of whether the sentence is death or life in 
prison. At the same time, it should take care not to exacerbate 
and, if possible, reduce the interminable delays and erroneous 
reversals which are presently the norm in the vast majority of 
capital cases that involve no question whatever of the identity 
of the perpetrator.
    The report of the Commission unfortunately is lacking in 
the balance needed for this important question. With regard to 
the balance by former prosecutors being on the panel, it 
reminds me of the words of former Democrat Ronald Reagan, 
``There you go again.''
    I am particularly disturbed by the way in which they brush 
off deterrence as a policy basis. There are a flurry of recent 
studies confirming or at least supporting the deterrent effect 
of capital punishment and, in particular, one from the 
University of Houston which indicated a loss of 200 lives as a 
result of a temporary halt in executions in the State of Texas. 
There are, of course, studies to the contrary. Even so, any 
public official considering a halt to or severe restriction of 
capital punishment must consider the very substantial 
possibility that such an action will result in the deaths of a 
great many innocent people.
    One of the recommendations is to narrow the scope of 
offenses eligible for capital punishment. I agree that some 
narrowing is in order. But the drastic reduction proposed by 
the Commission is not warranted by any concerns of actual 
innocence. In particular, the recommendation that the murder of 
a rape victim by the rapist not be a capital offense is 
repugnant and ought to be rejected out of hand. This is the 
kind of case where deterrence is most needed because a rapist 
facing a long prison sentence otherwise has very little 
incentive not to kill the victim. It is also the kind of case 
where DNA evidence is most likely to eliminate any doubt of 
identity.
    On a positive note, I note that the report does acknowledge 
that many of the reversed judgments in capital cases are based 
on things that have nothing to do with the trial and are the 
result of new rules created by the State and Federal Supreme 
Courts. This is a very important consideration for the Congress 
to consider when it is confronted with data of the so-called 
error rate in capital cases. The recent studies out of Columbia 
define ``serious error'' as any ground on which a conviction is 
reversed. That would include Booth v. Maryland for the so-
called error of introducing victim impact statements, which we 
now know is not error. It includes cases where a trial judge 
gave an instruction that had been expressly approved by the 
United States Supreme Court at the time of the trial and was 
later disapproved. So the rate of so-called error should not 
cause us to lack confidence in our trial system. Instead, these 
cases represent the cost of the fallibility of the review 
process and of retroactive rulemaking by judicial decision 
rather than by legislation.
    I am going to be nearly out of time. I would like to say, 
though, that I also think we should change the process of 
review so that the inevitable claim of ineffective assistance 
of counsel is always reviewed immediately after the trial. At 
that point everybody is still involved, still knows what they 
did, the defense lawyer has not moved on to a later stage of 
his career and may have more incentive to defend himself rather 
than fall on his sword, which is a problem.
    As a matter of federalism, if Congress wants to change 
State procedures, there is a question as to whether it can and 
whether it should. I suggest that an incentive arrangement be 
adopted for whatever reforms Congress deems necessary to reduce 
litigation in those areas having nothing to do with guilt in 
exchange for whatever improvements Congress believes is 
necessary in the guilt determination.
    I also believe if Congress sets up a commission, one of the 
goals stated in the commission should be to reduce the median 
time from sentence to execution to 4 years rather than the 15 
that is typical today. That is sufficient time to identify 
those few cases involving real questions of innocence and to 
resolve any major issues in the case, but also give us an 
effective death penalty with the benefits that would flow from 
that.
    I will have a corrected written statement which I will send 
to the committee staff. Thank you very much for your attention.
    [The prepared statement of Mr. Scheidegger appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Scheidegger.
    The next witness is Donald Hubert, a member of the Illinois 
Governor's Commission on Capital Punishment. He is currently in 
private practice and is a fellow of the International Academy 
of Trial Lawyers and the American College of Trial Lawyers. He 
serves, by appointment of the Illinois Supreme Court, as 
chairman of the Court's Committee on Professional 
Responsibility and is a former president of the Chicago Bar 
Association.
    Mr. Hubert also served as a State prosecutor in the Special 
Prosecutions Unit of the Illinois State Attorney General's 
Office. We welcome you to the panel, and thank you, and you may 
proceed.

STATEMENT OF DONALD HUBERT, HUBERT, FOWLER AND QUINN, CHICAGO, 
ILLINOIS, AND MEMBER, ILLINOIS GOVERNOR'S COMMISSION ON CAPITAL 
                           PUNISHMENT

    Mr. Hubert. Thank you, Mr. Chairman. I echo the remarks so 
far made that this is indeed a tremendous honor. And may I say 
as an aside how heartened I am to see so many young people 
sitting behind you who really do represent the future of the 
country. It is a sight to behold.
    I am here only to share with you my experiences with the 
Governor's Commission, all towards the end of helping you to 
see why he appointed us in light of the problems that we were 
having with exonerations in Illinois.
    Let me start by saying that I would like to officially and 
publicly say thank you to Governor Ryan. This is the report 
that was issued, and we in Illinois owe him a tremendous debt 
of gratitude for his courageous stand, first, in imposing the 
moratorium and then, secondly, in coming up with the Governor's 
Commission.
    My message today is a very simple one: that a moratorium 
and a commission is a win-win situation for those who oppose 
and those who support the death penalty, given that there are 
situations in other jurisdictions that are similar to those in 
the State of Illinois.
    Certainly Illinoisans would say that they in a great 
majority have supported the Governor's moratorium. I believe 
indeed that the legacy that will flow from his efforts in this 
area, that any future Governor that would seek to reinstitute 
the death penalty will have the burden by clear and convincing 
evidence to show Illinoisans that indeed a system would 
undoubtedly and truly is broken has been fixed.
    I agree with the simple words that were spoken by Tom 
Sullivan, co-Chair of this Commission. He was a former U.S. 
Attorney for the Northern District of Illinois, and in the 
simple words that he said, ``Repair or repeal.'' You will hear 
those words reverberate out of Illinois over the next several 
months.
    And let me stop just a moment. The notion that my 
distinguished co-presenter has indicated that a rape victim who 
then murders would not be subject to the death penalty under 
our provisions. Let me say I have an 8-year-old daughter, and I 
believe without any hesitation that under the provision that 
said torture followed by murder, that a rape is torture--a rape 
is torture.
    The Commission members, I share with you that our 
backgrounds were many and varied. There were those who were 
well-known and those who were not. My own background, as you 
have indicated, a former bar president, but I started my career 
after the University of Michigan Law School as a prosecutor. My 
first assignment was to write a brief to the Illinois Supreme 
Court in a murder case. My first trial was a habeas corpus 
petition where I as a prosecutor supported the murder 
conviction. My very first trial as a lawyer--who can ever 
forget their first trial?--before the venerable Judge Hubert 
Will, a great man, who I think spent many a day vacationing in 
the great State of Wisconsin.
    Chairman Feingold. And we always appreciate that from 
Illinois.
    Mr. Hubert. I have also had experience as a defense lawyer. 
I have worked with some of the great ones in Illinois, and let 
me, if you may allow me, to put their names into the record, 
individuals like George Harwood and Chester Slaughter, Adam 
Bourgoies, Jim Montgomery, R. Eugene Pincham. Justice Tom 
Fitzgerald started a pro bono program that Scott Turow and I 
both participated in. I handled for free out of my own pocket 
five murder cases. So I have been both prosecutor and defense 
lawyer, for fee and for free.
    But I stand here before you today and say that I join with 
Scott Turow, I have anguished over the issue of the death 
penalty, and I believe in a democratically determined country 
where highly motivated and educated and reasonable and honest 
and sincere individuals have been in support of it, that I am 
not morally opposed to it.
    However, I state categorically that I do not support the 
death penalty in Illinois unless it has been repaired. We have 
a major breakdown. It is embarrassing. It is unacceptable. And 
we must do something about it.
    That having been said, what are some of the profile matters 
that other jurisdictions might want----
    Chairman Feingold. I have to ask you to keep it brief, 
because we are over the time.
    Mr. Hubert. I have one minute, I believe.
    Chairman Feingold. Actually, you are one over, but I am 
going to give you a little more time.
    Mr. Hubert. All right. Oh, I am one over. Okay.
    Chairman Feingold. I will give you 30 more seconds.
    Mr. Hubert. And that is, again, prosecutors who engage in 
misconduct, defense lawyers who are incompetent, judges who 
don't enforce the rules and allow lawyers to run amuck, and an 
appellate process that didn't catch the issue.
    In conclusion, thank you again for allowing me to appear 
here and to be one of the presenters, and I believe that your 
holding this hearing is a great step forward for the entire 
country.
    [The prepared statement of Mr. Hubert appears as a 
submission for the record.]
    Chairman Feingold. I appreciate your eloquent comments, and 
I think it is very useful when you point out that the 
moratorium is really a win-win and something that you have to 
think about. You come from the perspective of somebody who 
generally has supported the idea of the death penalty. I am 
completely opposed to the death penalty. So I had to hesitate 
before supporting the idea of a moratorium because of my 
concern that it might get fixed; in other words, you might get 
rid of the defects. I think that is almost impossible, but I 
decided, even though there is a concern about that, that I 
can't stand by from a moral point of view knowing that innocent 
people might be executed, even if I believe no one should be 
executed.
    So this really is a compromise for both people who are for 
the death penalty and against the death penalty, as I am sure 
you experienced in the Commission, to say, look, we all can 
agree that you can't have a system where it is too likely that 
an innocent person may be executed. I really appreciate your 
comments, and now we will turn to Druanne White. She served as 
assistant solicitor for 12 years before being elected Solicitor 
for South Carolina's Tenth Judicial Circuit in November 2000. 
She served in the U.S. Marine Judge Advocate Corps and has 
delivered several lectures on South Carolina crime and 
prosecution. We welcome you, Ms. White, and thank you, and you 
may proceed.

STATEMENT OF DRUANNE WHITE, SOLICITOR, TENTH JUDICIAL CIRCUIT, 
                    STATE OF SOUTH CAROLINA

    Ms. White. Thank you, Senator. It is a prosecutor's job to 
seek justice. That is what we call our system, the ``criminal 
justice system.'' And in order to seek justice, the State must 
balance the rights of the victim with the law-abiding community 
and with the defendant.
    I agree with the Illinois report, many of their proposals, 
and, in fact, the majority of them. However, in my opinion, 
some of the proposals would be dangerous because they do not 
adequately balance the rights of victims and law-abiding 
citizens with those of the defendants. This doesn't surprise 
me. There were 17 members on this Commission, only one active 
prosecutor, no active law enforcement officers, yet they made 
all of these recommendations.
    Would anyone claim it was a bipartisan, fair committee if 
we put 16 Republicans and one Democrat on it and said, But it 
is fair because some of the Republicans used to be Democrats? 
But that is what we have got.
    If there is any doubt about the bias, look on page iii 
where the Commission in its own report says the majority wishes 
to abolish the death penalty. So this report on suggestions on 
how to cure the woes was written by people who were anti-death 
penalty.
    Now, I find this ironic that a South Carolina case was 
mentioned, exoneration. The South Carolina case was just like 
the California case. The person was convicted of armed robbery 
and murder. He was sentenced to death. A new jury--he was a 
given a new trial on a technicality. The new jury found him 
guilty of the armed robbery and inexplicably not guilt of the 
murder. That is hardly an exoneration.
    I think innocent persons will pay the price if some of 
these proposals are adopted because there isn't any balance. 
And I would like to illustrate that with the last death penalty 
case that I prosecuted.
    Denisona Crisp stabbed an individual multiple times from 
behind, and then he ran him down with a car. The individual 
lived, and the defendant, Denisona Crisp, came to my 
jurisdiction when he got out on bond. And that is when he began 
hunting black males. The defendant, Denisona Crisp, first 
preyed upon Jealoni Blackwell. He shot him and then he beat him 
until every bone in his face was broken. But the hunt wasn't 
over because the next victim was Clarence Watson. The 
defendant, Denisona Crisp, taped two knives in his right hand 
and two in his left, and he began slashing and stabbing and 
gutting Clarence Watson. The last thing Clarence Watson saw was 
the defendant kneeling over him and cutting out his throat. I 
didn't say ``cutting it.'' I said ``cut it out.''
    But the defendant wasn't done. The hunt continued. The new 
black male prey was Thomas Gambrell. This time the defendant 
decided he needed a little more action, so he let Thomas 
Gambrell run through the woods as he shot him and tracked him 
through the woods.
    The neighbor that lived near the woods told me that she had 
never heard anything like it when she woke up that night to 
screams and pounding on her door. And when she looked out, 
Thomas Gambrell's bloody fingers were going down her door as he 
tried to claw his way through because he was so afraid of 
Denisona Crisp pursuing him.
    We must balance the rights of these victims with the rights 
of the defendant. This defendant had a long prior record. He 
had escaped before. He was diagnosed anti-social personality 
disorder--in other words, a psychopath. When he got into jail, 
the first thing he did was construct a shank and tried to cut a 
guard's throat.
    Anti-death penalty people will tell you that we have no 
mercy. I have mercy, but I don't have it for the killers. I 
have mercy for the innocent victims. Should we have mercy for 
Denisona Crisp or for the poor, innocent people that will come 
in contact with him should he escape again? Should we have 
mercy for Denisona Crisp, or should we have mercy for the poor 
person who will be his cell mate? Should we have mercy for 
Denisona Crisp or for the guards? You know, they are parents, 
too. They are sons and daughters and brothers and sisters. I am 
just as merciful as an anti-death penalty person. I just choose 
to have my mercy for the people who are not ruthless killers.
    I would urge you----
    Chairman Feingold. Let me ask you a question. Is the person 
you were just describing one of the 101 persons exonerated?
    Ms. White. The one from South Carolina was not----
    Chairman Feingold. The one that you have just described, 
the heinous crimes you have just described----
    Ms. White. No, sir. I just prosecuted him in October.
    Chairman Feingold. Is he one of the 101 people that have 
been exonerated?
    Ms. White. No. The one that----
    Chairman Feingold. Thank you.
    Ms. White.--was exonerated----
    Chairman Feingold. Make that clear for the record----
    Ms. White.--so-called from South----
    Chairman Feingold.--so nobody thinks that that is the case.
    Ms. White. The one that was so-called exonerated from South 
Carolina was actually found guilty by the second jury of the 
armed robbery.
    I would ask that you balance the rights of the victims and 
the innocent community with those of the defendant. I would 
urge you to implement the fair and balanced proposals that are 
in this. There are many of them. But I would implore you to 
reject the ones that would allow the likes of Denisona Crisp to 
kill again.
    [The prepared statement of Ms. White appears as a 
submission for the record.]
    Chairman Feingold. Thank you very much.
    We will now note that Senator Durbin has arrived. What I am 
going to try to do is--ah, there is Governor Ryan. All right. 
We are going to take a break here, and first I am going to turn 
to Senator--you are going to defer to the Governor of Illinois? 
Senator Durbin is a great guy, and he knows Illinois politics.
    [Laughter.]
    Chairman Feingold. Well, then, we will turn to Governor 
Ryan and go back to panel two later. I understand that Governor 
Ryan is now prepared to participate in the hearing, and as I 
mentioned earlier, we will now turn to him for his opening 
remarks. Following his opening remarks, we will allow members 
to ask questions of Governor Ryan, and then after we complete 
that, we will complete the testimony of Professor Marshall and 
ask questions of the second panel.
    Seeing no members of the minority here to make a statement, 
I will now say it is a great pleasure and honor to welcome 
Governor George Ryan of Illinois. Governor Ryan's courageous 
decision in January 2000 is the main reason we are holding this 
hearing today.
    Governor Ryan, I wish you could join us in person, but I am 
very pleased that you are, nonetheless, able to participate via 
the wonders of modern technology during a busy legislative 
session in Illinois. And, Governor, if you figure out Illinois' 
budget problems, please come up to Wisconsin and help us. We 
are having serious ones, too.
    Governor George Ryan was elected to the Illinois House in 
1972 and re-elected four times. During that tenure, he served 
two terms as House Republican leader and one term as Speaker of 
the House. Governor Ryan went on to serve as Lieutenant 
Governor from 1983 to 1991, at which time he became Secretary 
of State.
    Seven years later, he was elected the 39th Governor of 
Illinois, and, again, Governor, as you know, I have strong 
feelings about your courage in this regard. I want to thank you 
for your time this morning, and I commend you for your 
leadership and courage on this important issue. You may 
proceed, Governor Ryan.

   STATEMENT OF HON. GEORGE RYAN, GOVERNOR, STATE OF ILLINOIS

    Governor Ryan. Senator Feingold, thank you very much for 
your kind words. And you are right, we did attempt to solve our 
budget problems and finished up late last night, so I am 
delighted to have the opportunity to be here, and good morning 
to my friend, Senator Durbin, and I thank him for the hard work 
that he puts in.
    I am absent today, as you pointed out, Senator, because we 
are in the middle of our special session that I called to 
balance our budget. And because of the importance of this issue 
and your leadership on this issue, I am delighted that we were 
able to connect through technology from our office here in 
Springfield.
    By the way, you may know that this is the home of your 
colleague, Senator Dick Durbin, Springfield is his home, where 
he is well thought of and does a great job representing us.
    I would like to thank all the members of this committee. I 
have had an opportunity to meet and work with a couple of them. 
Certainly Senator Leahy has been a part of our program that I 
have worked with in the past, and you have with you this 
morning Scott Turow and Don Hubert, who just testified, and 
Larry Marshall, who heads up the--is the Chair of the 
Northwestern Center on Wrongful Conviction. So I do want to 
thank you for inviting me to testify on the death penalty 
moratorium.
    You know, throughout my career, I believed that only the 
guilty could be sent to death row, being from a little town in 
Illinois called Kankakee, where the death penalty and death row 
were kind of in the abstract for those who didn't really have a 
lot to do with it. So I never really questioned the system. Bad 
guys went to death row, and they were executed.
    You may have heard me tell this story in the past, Mr. 
Chairman, but it was some 25 years ago, and I vividly remember 
voting to put the death penalty back on the Illinois books.
    As a member of the Illinois General Assembly, I was voting 
yes to put the law back on the books, and during the debate of 
that bill, an opponent of the death penalty asked if any of us 
that were voting yes or supporting the bill would be willing to 
``throw the switch.''
    It was a pretty sobering question, and it gave me a lot of 
reason for thought. But it wasn't my responsibility, and for 
that I was relieved. It was still kind of in the abstract for 
me, and I still believed that the death penalty was the right 
answer. Administration of the death penalty was something that 
was left up to the criminal justice system and certainly that 
system would never make a mistake.
    So I voted for the death penalty. The fact is now, as 
Governor, I learned the responsibility is mine, and I do 
``throw the switch.'' It is an awesome responsibility, and it 
is probably the toughest job that any Governor has, who should 
live or who should die.
    Since those days as a legislator, a lot has happened to 
shake my faith in the death penalty system. And the more I have 
learned, the more troubled I have become.
    The State executing an innocent man or woman is the 
ultimate nightmare. The fact is we have come very close to that 
prospect 13 times in Illinois.
    Anthony Porter's case is a shocking example of just that. 
Back in the fall of 1998, when I was still campaigning for 
Governor, Anthony Porter was scheduled to be executed on 
September 23rd of that year. He had ordered his last meal and 
he had been fitted for his burial clothes.
    He had been convicted in the 1982 of shooting a man and a 
woman to death in a South Side park of Chicago.
    Two days--two days--before he was to die, his lawyers won a 
last-minute reprieve, a temporary reprieve that was based on 
his IQ which they believed to be about 51.
    With that delay, some of the great journalism students from 
Northwestern University and their professor, David Protess, who 
is also a very powerful champion for justice, had some time to 
start their own investigation into the then 16-year-old case. 
Anthony Porter had been on death row for 16 years.
    With the help of a private detective, the students picked 
up in one aspect of the case, and they found that they could 
help Anthony Porter.
    Key witnesses, like one who claimed that he saw Porter at 
the crime scene, an eyewitness who absolutely saw Porter shoot 
these people, recanted that testimony and said that Porter was 
framed.
    The students then followed their leads into your home 
State, Senator, into Milwaukee, where the private detective 
obtained a video confession from a man named Alstory Simon.
    Simon told the private detective that he shot the two 
victims in an argument over some drug money. With that new 
evidence, charges were dropped and the innocent Mr. Porter was 
freed in February of 1999. An innocent man spent nearly 17 
years on death row, with an IQ of 51, barely able to defend 
himself or know what the charges were. The charges against him 
were wrong, and they nearly sent him to death, after spending 
nearly 17 years on death row.
    I had the opportunity to meet with Mr. Porter just last 
week, and he told me how he was kept in his dark cell for 23 
hours a day. His eyes can't tolerate the sun today because they 
are so sensitive. And that is tough punishment for a guilty 
man, let alone an innocent one. If you can imagine enduring 
that much pain, all the while knowing that you are innocent.
    I was caught off guard by Mr. Porter's case because I had 
just taken office. I didn't know how bad our system really was. 
Shortly after Anthony Porter's case, while I was still trying 
to recover from what had happened to him, the Andrew Kokoraleis 
case came to my desk.
    Andrew Kokoraleis was a serial killer, and he had been 
charged with the brutal murder, rape, and mutilation of a young 
21-year-old woman. After the mistakes the system made in the 
Porter case, I agonized. I had to decide whether Kokoraleis was 
going to live or whether he was going to die. I reviewed the 
case. I consulted with staff. I called in veteran prosecutors 
and defense attorneys. I requested additional information from 
the Prisoner Pardon Board. I checked and double-checked and 
triple-checked because I wanted to be absolutely sure that this 
man who was sentenced to death was going to be guilty. And in 
the end, I was sure without any doubt that Andrew Kokoraleis 
was guilty of a monstrous, unspeakable crime. I allowed his 
execution to proceed.
    But it was an emotional, exhausting experience, and one 
that I would not wish on anybody. It all came down to me. I am 
a pharmacist, Senator, from Kankakee, Illinois, who had the 
good fortune to be elected Governor of the State of Illinois. 
But now, in fact, I had to throw the switch. Quite frankly, I 
think that might be too much to ask of one person to decide.
    That experience was really not the end of my journey. 
Journalists Steve Mills and Ken Armstrong of the Chicago 
Tribune conducted an in-depth investigation of the death 
penalty cases in Illinois in 1999 that was absolutely 
startling. Half--half, if you could imagine--of the nearly 300 
capital cases in Illinois had been reversed for a new trial or 
sentencing hearing. Thirty-three of the death row inmates were 
represented at trial by an attorney who had later been 
disbarred or at some point suspended from practicing law. 
Thirty-five African American death row inmates had been 
convicted or condemned by an all-white jury. In fact, two out 
of three of our approximately 160 Illinois death row inmates 
are African American.
    Prosecutors used jailhouse informants to convict or condemn 
46 death row inmates. So it was clear that there were major 
questions about the system--questions that I alone could not 
answer.
    In January of 2000, the 13th death row inmate was found 
wrongfully convicted of the murder for which he had been 
sentenced to die. At that point, I was looking at a very 
shameful scorecard: since the death penalty had been reinstated 
in 1977, 12 inmates had been executed and 13 were exonerated. 
To put it simply, we had a better than a 50-50 chance of 
executing an innocent person in Illinois.
    The odds of justice being done were as arbitrary as the 
flip of a coin.
    Up until then, I had resisted calls by some to declare a 
moratorium on executions. But then I had to ask myself how 
could I go forward with so many unanswerable questions about 
the fairness of the administration of the death penalty in 
Illinois. And how on Earth could we have come so close, again 
and again--to putting fatal doses of poison into the bodies of 
innocent people strapped to a gurney in our State's death 
chamber?
    It was clear to me that when it came to the death penalty 
in Illinois, there was just no justice in the justice system. I 
declared the moratorium on January 31, 2000, because it was the 
only thing I could do. I had to put a stop to the possibility 
of killing an innocent person.
    That was the easy part. The hard part was to find out why 
our system was so bad and what had gone so terribly wrong with 
it. The hard part was to try and find out answers to how our 
system of justice became so fraught with errors, especially 
when it came to imposing the ultimate, irreversible penalty.
    So I appointed some of the smartest, most dedicated 
citizens that I could find to a commission to study what had 
gone so terribly wrong. It was chaired by former Federal Judge 
Frank McGarr and was co-chaired by a former colleague of yours, 
Senator Paul Simon, and the former U.S. Attorney from the 
Northern District of Illinois, a fellow by the name of Thomas 
Sullivan.
    They led a panel which included former prosecutors, defense 
lawyers, and non-lawyers. Accomplished attorney Scott Turow, 
whom you have heard from earlier today, a best-selling author 
and Commission member, along with Commissioner Don Hubert, whom 
you just heard from, and Matt Bettenhausen. My Commission put 
together a tremendous document. They developed 85 
recommendations to improve the caliber of the justice system of 
our State. It does not single out anyone, but it calls for 
reforms in the way police and prosecutors and defense attorneys 
and judges and elected officials do their business.
    I have taken the entire report and introduced it to the 
Illinois General Assembly. It will require legislation, and 
hopefully the General Assembly will take the bill and have 
hearings around the State and shape it into a good piece of 
legislation that will pass.
    My bill proposes barring the execution of the mentally 
retarded, mandating that natural life is given as a sentencing 
option to juries, and reducing the death penalty eligibility 
factors from 20 to 5, and barring the death penalty when a 
conviction is based solely on a jailhouse snitch.
    This summer, the General Assembly, as I said, will hold 
hearings, and I hope that they will hear from all of the key 
parties throughout the State--prosecutors, defense attorneys, 
victims, and the wrongfully convicted.
    My Commission reviewed at least at some level every capital 
case that we have ever had in Illinois, but it took a closer 
look at the 13 inmates that were freed from death row and 
exonerated.
    Most did not have solid evidence. We had cases where 
jailhouse snitches were the only key witnesses, another case 
where a drug-addicted witness sent a man to death row, and DNA 
freed several inmates. Some were convicted because of 
overzealous police and prosecutors. Some had inadequate 
representation at trial.
    The Commission concluded that its recommendations will 
significantly improve the fairness and accuracy of the Illinois 
death penalty system. But it also concluded, and I also quote, 
``No system, given human nature and frailties, could ever be 
devised or constructed that would work perfectly and guarantee 
absolutely that no...innocent person is ever again sentenced to 
death.'' I think that is a pretty powerful statement, and it is 
one that I will ponder.
    In the meantime, we do know this: I said 2 years ago, and I 
can say now, until I can be sure that everyone sentenced to 
death in Illinois is truly guilty, until I can be sure with a 
moral certainty that no innocent person is facing a lethal 
injection, nobody will meet that fate as long as I'm Governor.
    We all want to punish the guilty. There isn't any question 
about it. But in doing so, we must never punish the innocent. 
And we almost did that in many cases here. And with our 
mistake-prone system in Illinois, that is just what we were 
about to do.
    So, Chairman Feingold, I know that you are proposing a 
Federal moratorium on the death penalty. We have had the 
pleasure, as I said earlier, of discussing our mutual concerns 
about capital punishment a number of times in the past couple 
years. And I want to commend you for your passion for truth and 
justice.
    I have not studied the Federal system, but I do know, 
especially after September 11th, that the United States of 
America must be a model for the rest of the world. And that 
means our justice system should be the glowing example for the 
pursuit of truth and justice. And it certainly must be fair and 
it must be compassionate.
    So we must safeguard our individual liberties while keeping 
our communities safe. And we must protect the innocent. I 
believe it is a fundamental part of the American system of 
justice.
    Once again I appreciate the opportunity to be here with you 
today and to present what we have done in Illinois with our 
moratorium on the death penalty.
    Chairman Feingold. Thank you so much, Governor. I am very 
honored that you would take the time to do this today, and I 
will turn to Senator Durbin in a moment after I have asked you 
a couple of questions. But let me first say that there is no 
question in my mind that there are going to be significant 
changes in the death penalty system in this country, whether it 
would lead to abolition or whether it would lead to fixing the 
problems in the system.
    I am also confident that when the history of those changes 
are written, the most important name will be the name Governor 
George Ryan. And I admire your courage in this regard 
tremendously.
    In fact, there has been much made this morning at the 
hearing of the composition of the Commission you selected, and 
some have suggested because former prosecutors were used that 
that is not a valid representation of prosecutors, in fact, 
making the claim that certain people switched political 
parties. Well, I want it clear that this advocate of the 
moratorium and the Commission, Governor Ryan, is still a 
Republican and is still saying these very things.
    In that regard, Governor Ryan, some critics, including the 
Wall Street Journal editorial page, have charged that, in 
choosing the members of your Commission, you stacked the deck 
with death penalty opponents. How do you respond to these 
claims?
    Governor Ryan. Well, you know, I try not to respond a lot 
of times to the newspaper's errors, but let me say that some of 
the critics haven't been happy with this report for the reasons 
you have said, that I have stacked the Commission. I would like 
to point out that 9 of the 14 members on this Commission are 
current or former prosecutors. When I appointed them, those 
opposed to capital punishment accused me then of stacking the 
Commission with death penalty supporters.
    It is kind of a no-win situation, I think, Mr. Chairman. 
This was a fair Commission, and the Commission is made up of 
some of the most conscientious and dedicated people to enter 
public service. And I think they did a good job with this 
report. If they had a personal bias, it certainly didn't show. 
They spent 2 years studying this, many hours every week, and 
they did a great job. And I am grateful for and proud of the 
work that they have done.
    Chairman Feingold. Thank you, Governor. Some, even those 
who recognize that there are problems in the current death 
penalty system, argue that there is no need for a moratorium. 
They argue that we can enact reforms without suspending 
executions. I disagree with that position. I believe that it 
doesn't make sense to go forward with executions at the same 
time that efforts are underway to review and repair the system. 
And you, of course, realize that these two things should be 
joined.
    Can you explain why you decided that suspending executions 
was necessary rather than merely appointing the Commission to 
study the issue and then make recommendations?
    Governor Ryan. Well, because we never executed 13 innocent 
people. In the case that I like to go back to, this fellow 
Anthony Porter, who was absolutely innocent without question 
and was 48 hours away from death, and if we hadn't had a 
moratorium on the death penalty, he would have been executed.
    I don't know how many more of those 13 others or 12 would 
have been executed, but they were all innocent, and I think 
that if we had gone on with this for the last 2 years, there 
probably would have been several innocent people executed. And 
I think that is what I was concerned about, whether we had a 
fair system that worked for everybody. The witness that you had 
on earlier, Ms. White, talked about being fair and just and to 
have a balance. I would like to point out that I--I am not sure 
what the death penalty is supposed to mean. Is it a deterrent 
to crime or just revenge for a crime? I think that is a 
question that has to be asked.
    When you look at some of the problems, we look at the 
prosecution and the defense of these people, is it fair and 
just that poor and indigent people who can't afford the best 
attorneys should be the ones that go to death row more often 
than others? We need to have a system that is fair and is 
balanced and is just. And so that is what we tried to do with 
the moratorium and the study that we put into it.
    Chairman Feingold. Thank you, Governor.
    Finally, do you have any regrets about the decision you 
made now that the Commission has completed its work?
    Governor Ryan. No, not at all, and I have several things 
left to do with that Commission and that report, and hopefully 
we will fine-tune it a little bit throughout the summer and 
pass it into legislation in the fall.
    Chairman Feingold. Well, obviously, I wish you well in that 
regard, and thank you.
    I now turn to my friend and colleague from Illinois, 
Senator Durbin.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Mr. Chairman. And let 
me also thank Governor Ryan and the panel for joining us today. 
And let me say that there couldn't be two more different 
political figures before us today than Senator Feingold of 
Wisconsin and Governor Ryan of Illinois, not only in terms of 
their party affiliation but their political philosophy, and yet 
they have both come to remarkably similar conclusions about one 
of, I think, the most challenging moral issues of our day.
    I commend Governor Ryan for the decision he made to 
establish a moratorium on the death penalty in Illinois. Like 
Governor Ryan, I support the death penalty. I have voted for 
the death penalty. But I believe the only morally coherent 
position you can take with the evidence that Governor Ryan had 
before him was to establish a moratorium until there was 
clearly established a line of evidence and established a clear 
record that the men and women on death row were there because 
they had committed the crimes they were charged with.
    I don't think any of us want to see an innocent person 
killed by the State, and Governor Ryan, faced with the reality 
of 13 individuals facing death on death row who were released, 
did what I think is the absolutely right thing.
    And I also commend you, Governor, for going beyond that and 
establishing this Commission. I know most of the people on that 
Commission. I have known them most of my life. I respect them. 
They are people, I think, who are balanced and objective in the 
approach that they take. I don't believe that that Commission 
was biased. I think it was honest. And I think it really 
challenges all of us to take a look at the Commission's 
conclusions and to determine each and every one of them as to 
whether or not they are honest, whether they need to be 
followed through, whether they establish standards which we 
should pursue as a Nation.
    Governor Ryan, I can tell you, despite our political 
differences in the past, you have not only done the right thing 
for our State, you have created a national debate which was 
long overdue, and the public sentiment in reaction to your 
decision and the decision by others, such as Governor 
Glendening in Maryland, has resulted in many Americans stepping 
back and finally facing a very, very tough issue of the death 
penalty and deciding for themselves what is the right thing in 
a good and just Nation to do.
    I thank you, Governor Ryan, for your testimony and for your 
service and, particularly on this issue, your leadership.
    Thank you, Mr. Chairman.
    Governor Ryan. Thank you.
    Chairman Feingold. Thank you, Senator Durbin, for your 
excellent comments, and, again, Governor Ryan, we are grateful 
to you for your appearance here today, but especially for your 
leadership on this, and I look forward to working with you on 
this issue for many years to come. Thank you, Governor Ryan.
    Governor Ryan. Thank you very much.
    [The prepared statement of Governor Ryan appears as a 
submission for the record.]
    Chairman Feingold. We will now return to the second panel. 
We have one more witness, Professor Larry Marshall. He is a law 
professor at Northwestern University School of Law and the 
Legal Director of the Center on Wrongful Convictions.
    Professor Marshall currently represents criminal defendants 
as a part of his work with the Northwestern University Legal 
Clinic and has succeeded in winning the release of several 
innocent defendants who were sentenced to death or life 
imprisonment. Professor Marshall once served as a law clerk for 
Supreme Court Justice John Paul Stevens.
    We certainly welcome you to the panel this morning, 
Professor Marshall. It's a pleasure to see you again, and you 
may proceed.

     STATEMENT OF LAWRENCE C. MARSHALL, PROFESSOR OF LAW, 
  NORTHWESTERN UNIVERSITY SCHOOL OF LAW, AND LEGAL DIRECTOR, 
    CENTER ON WRONGFUL CONVICTIONS, NORTHWESTERN UNIVERSITY

    Mr. Marshall. Thank you, Senator, Senator Durbin. I think 
the issue here today is really one of values, not the question 
of whether we value the death penalty or not value the death 
penalty in the abstract, because that is an issue upon which 
reasonable do and can differ; but, rather, the question is how 
much we value the life of the absolutely innocent person who is 
caught up in this nightmare of being sentenced to death.
    Each of the witnesses who testified against, so to speak, 
the idea of a moratorium, against some of the proposals that 
the Governor made and the Commission made, accepted the idea 
that we have a system in need of reform. One of them said she 
accepted 67 of those reforms. The others said they accepted the 
majority of them. The Illinois Prosecutors Association, Mr. 
Kinsella said, accepted the grand majority of them. But yet, 
they say, that we nonetheless ought to proceed and continue to 
kill people at the very time that we have not yet implemented 
those procedures, at the very time that we haven't studied the 
impact that those reforms would have on those cases.
    To paraphrase the adage that we all are schools in, which 
is it is better that 10 guilty people go free than one innocent 
person be convicted, much less executed, I am hearing here that 
it is better that numerous innocent people be executed than 
other guilty people's executions be deferred or perhaps not go 
forward.
    So the question is: How much do we value that innocent 
person? I am hearing over and over, well, yes, there are some 
guilty people, Mr. Scheidegger says, there are some guilty 
people on death row. Stop the presses. Of course, there are 
guilty people on death row. But what do we do about the fact 
that there are scores and scores of innocent people--innocent 
people, some of whom may be cleared by DNA, but in most cases 
involving the death penalty, DNA is simply not there. DNA is 
not available. Don't we have a moral duty to learn the lessons 
from these cases?
    When I was driving up here today, I saw the sign in front 
of the Archives: ``What Is Past Is Prologue.'' Don't we have a 
duty to look at the past and to figure out what it teaches us 
before we take the ultimate step of killing?
    Now, Mr. Kinsella says, well, look, this is really an 
indictment of the entire Anglo-American system. And the answer 
is, of course, the system is faulty and the system needs 
improvement. But death is different. When we kill someone, we 
absolutely take away that person's chance to prove their 
exoneration.
    I am shocked to hear Mr. Scheidegger say that one of our 
goals ought to be to limit the time between sentence and 
execution to 4 years. Mr. Scheidegger knows that the mean time 
that it has taken people like Kirk Bloodsworth and the hundred 
others to exonerate themselves has been over 7 years. What is 
he saying when he says, But we should be killing them within 4 
years? He is saying to Mr. Bloodsworth, you know what, I don't 
care about the fact that you would have been killed, even 
though we now know you are innocent. He is saying that to those 
other hundred people. And the question is why.
    Well, we are told the answer is, as Ms. White tells us, 
because there are awful crimes going on out there. And she 
described with passion that would bring tears to any of our 
eyes what happened in that case that she prosecuted.
    But let me point out that happened in a State which has an 
active death penalty and that the execution of that man is not 
going to reverse any of those harms. So we have to balance 
costs and benefits here.
    We may be able to go back to a death penalty someday that 
is new and improved, that actually has safeguards that protect 
against the execution of the innocent, that protect against 
racism, that protect against arbitrariness. But let me say, 
Senators, that if we have a system right now which is as bad as 
this one is, and even figuring out if somebody did it or didn't 
do it, which is the easy objective fact, then how much worse is 
that system at figuring out whether that person deserves to 
live or deserves to die, the ultimate imponderable.
    Mr. Scheidegger says, well, you know, a lot of the Columbia 
study is really based on other kinds of procedural issues, and 
he says glibly it is a tribute to the fallibility of judicial 
review. And that is what we are up against here. What we are up 
against is, whenever there is exoneration, well, that is a 
wrongful exoneration. Whenever there is an acquittal and a jury 
does something and says someone is not guilty of murder, that 
is inexplicable.
    But, of course, if someone is convicted, that is the law; 
the jury has spoken; there is no questioning that jury's 
verdict.
    When we have a commission that comes in, as the Illinois 
Commission did, objectively studying an issue and looks at the 
facts and, as Governor Ryan learned, we are shocked to learn 
how fallible the system is. And that Commission now says that 
on balance, having read and learned and studied, having looked 
in the faces of those who are on death row and were ready to 
die but are now known to be innocent, that they no longer 
support the death penalty, we are told that is a bias. We are 
told that people becoming educated and learning about the 
realities and practicalities of the implementation of the death 
penalty become biased.
    Twelve years ago, when I first got involved in this field, 
I actually believed that the death penalty had problems, but I 
believed one thing about it: that whatever other problems it 
had, we could be sure that someone who was on death row was, in 
fact, guilty; that all of the safeguards of the post-Furman era 
absolutely proved that.
    The facts have absolutely shattered that belief for me. I 
have represented nine people who were absolutely innocent and 
who were sentenced to death, who were freed because of 
fortuities, because of the hand of God, or whatever else you 
want to call it, but not because the system has worked. And if 
we truly care about the value of life, we have to say let's 
take a time-out. Let's take a time-out. It is not going to kill 
anyone for us to wait and study this subject. It may well kill 
innocent people if we don't.
    Thank you.
    [The prepared statement of Mr. Marshall appears as a 
submission for the record.]
    Chairman Feingold. Thank you very much, Professor, for that 
powerful explanation of this issue, and I appreciate your 
leadership on this issue.
    We will now turn to the questions. We will start with 7-
minute rounds, and I am going to go first to Deputy Governor 
Bettenhausen, who is with us by video.
    One of the most frequently criticized recommendations in 
the Commission's report is the recommendation to eliminate the 
felony murder death eligibility provision and the general 
reduction of death eligibility factors from the current sum of 
20 to 5. The argument is that these recommendations are simply 
an effort by opponents of the death penalty to reduce its use.
    Can you explain how the Commission arrived at its list of 
five eligibility factors and the rationale behind recommending 
the elimination of many of the eligibility factors, including 
the felony murder provision?
    Mr. Bettenhausen. Well, Senator, one of the things--and I 
think I mentioned this in my opening statement--is we heard 
from prosecutors, from judge, from police officers as well as 
defense attorneys, and uniformly we heard that there were too 
many eligibility factors in Illinois. If you are going to have 
the death penalty, you need to have it for the most heinous of 
crimes. Every murder is horrendous. Every murder is terrible. 
But as we know, constitutionally you cannot have the death 
penalty for every murder. There are victims in every murder 
case. But if you are going to have capital punishment, it has 
to be reserved for those cases. It is a significant investment 
of those prosecuting these cases as capital crimes.
    We looked at what was originally enacted here in Illinois. 
We looked at all of the cases that have happened, 300-some 
death penalty cases that have happened throughout Illinois's 
history with capital punishment. A number of those factors have 
never been used. But we looked at where with our sentencing 
study this very prosecutorial abuse could happen, and we saw 
that was in the felony murder cases, because you would have 
lifetime, life cases treated differently so that you have 
disparity and misapplication potentially of the capital 
punishment law.
    So it was based on that, and looking at what are--it is, to 
some extent, a tough judgment to make. It would have been 
easier just to say, like the prosecutors who are here today, 
well, we agree that you reduce the eligibility factors, but the 
difficulty always is you can find any example for any case 
because all murders are terrible.
    But we didn't take the easy way out. We looked at what 
would pass as the worst of the worst. If you are going to have 
capital punishment, this does it, and it preserves it for the 
worst of the worst cases so that you can apply your criminal 
justice system and do the costs that are associated with 
capital punishment fairly.
    One of the other things when we talk about victims--we also 
heard from victims. Our committees and subcommittees met with 
police officers practically weekly when we were working on 
these recommendations. But one of the things victims should 
know, for example, when we talk about the capital punishment 
being there, most of the time most murders are not going to 
qualify for capital punishment. Most of the thousands of 
murders that happen in Illinois, less than 2 percent would be 
treated as a capital case. And of those 2 percent, 70 percent 
of those are going to be reversed, and those victims then have 
to go through the whole process again. And of those reversals, 
only 25 percent of them ultimately resulted in the imposition 
of capital punishment. And it is unfair to victims to hold that 
out there, for them to think that every murder is going to 
result in capital punishment, and it treats victims 
differently.
    Chairman Feingold. Thank you very much. I am now going to 
turn to Professor Marshall.
    Some argue that the fact that there have been exonerations 
is proof that the system is working, but we also know that 
oftentimes there are people very much outside the system, in 
part because of your good efforts, like reporters or journalism 
students, who do the work to uncover evidence of innocence.
    I know you have worked with students on many cases of death 
row inmates who are later exonerated. Do you agree that the 101 
exonerations is proof that the system is working?
    Mr. Marshall. Absolutely not, Senator. If you look at the 
circumstances of these exonerations, you see extraneous forces 
working. Let me give you the best example I can to show you how 
clear it is the system doesn't work. And, again, I will point--
I could point to many people, but I will point to Kirk 
Bloodsworth because he is in the room.
    Kirk Bloodsworth was convicted of raping and murdering a 
young girl. He was convicted based on eyewitness testimony. 
Ultimately, he was exonerated 9 years afterwards, after 
spending time on death row, because DNA testing was available.
    Now, DNA was available in that case because the victim was 
also raped. Had she not been raped, then DNA wouldn't have been 
there, and the eyewitness testimony saying that Kirk 
Bloodsworth was the murdered would have stood. Kirk Bloodsworth 
would have been executed or would have spent the rest of his 
life in prison.
    The bottom line is, to put it glibly, he was lucky in this 
perverse way that the victim was raped, because had she not 
been raped, he would have been equally innocent, but he would 
have had no method of exoneration.
    DNA is available in around 20 percent of death penalty 
cases. Those are the cases for which there is biological 
evidence susceptible to forensic testing. In the other 80 
percent of the cases, they don't have that method. So, again, 
we see these kind of fortuities.
    We had another case. Scott Turow talked about the Cruz-
Hernandez case. Part of the evidence in there was DNA evidence 
that happened to be lingering on the inside of a test tube. 
Everyone thought the DNA had been destroyed. There happened to 
be a little bit left. Or the arrest of a true killer, these 
kinds of complete fortuities. The Anthony Porter case, 2 days 
before, we got a stay from the Illinois Supreme Court based on 
evidence of retardation, nothing to do with innocence.
    That is not the system working. That is, in some cases, our 
ability to prove innocence. But how many people have been 
executed already without those fortuities, without those 
miracles, and how many people on death row will be executed? 
Countless numbers.
    Chairman Feingold. I think that is an important point as 
well about the DNA, because there are some who believe that 
this is just a question of making sure everybody gets a DNA 
test. And that doesn't even represent anywhere near a majority. 
In fact, I think you said more like 20 percent of even these 
exoneration cases. It is a wonderful thing that we are able to 
do that, but it certainly does not address the whole problem.
    I would like to turn to Mr. Turow and Mr. Hubert, because 
they are both part of this Commission, but they both have 
indicated that they support the death penalty, capital 
punishment. Your position illustrates something remarkable here 
that I don't think you can really underscore enough: that there 
is common ground between death penalty proponents and 
opponents, and this is not an area of public debate where there 
has been a whole lot of common ground in the past. But the 
people of Illinois certainly came together to say that enough 
is enough, it is time to take a time-out because the system is 
broken.
    How did each of you arrive at the decision to support a 
moratorium and Commission? And I would ask Mr. Turow first to 
answer that.
    Mr. Turow. Well, Senator, my experiences--I do spend most 
of my time writing, but I do spend quite a bit of time also 
practicing law. And in the decade of the 1990s, I spent most of 
the time that I give to lawyering involved in the post-trial 
phases of capital cases. And what moved me was not only the 
experience of the Cruz and Hernandez cases, but also an 
instance that we have not talked about today of another young 
man whom I represented who simply, in my opinion, was on death 
row for the crime of having bad lawyers. The lawyers who had 
represented him had been under contract to the localities, 
public defender's office. They were supposed to do 103 cases a 
year for the total of $30,000, which meant that when they got 
down to the capital case that they were supposed to be working 
on, each of them was being paid an average of $300.
    And, not surprisingly, when we applied the resources of a 
large law firm to a case in which there had been $600 worth of 
representation, the result changed. We were able to prove, I 
think, that there had been significant legal errors, so found 
the judge who entertained our post-conviction petition. And we 
were also able to persuade the very fine State's attorney in 
Lake County, Michael Waller, that an improper assessment had 
been made of the defendant's character based on the failure to 
present appropriate mitigation information.
    So not only had I seen the palpably innocent like my 
client, Alex Hernandez, convicted wrongfully, I had also seen 
instances where someone who was not innocent and who ultimately 
admitted he was not innocent, but he had had inadequate 
representation, bring him to death row.
    And looking at all of that, I saw a system which is simply 
fraught with error, where the imposition of the death penalty 
seems to be haphazard and where distinctions are made on bases 
that I found almost impossible to understand.
    So for those reasons, I very much support the moratorium, 
and my doubts about reinstituting the death penalty, as I say, 
do not have any basis on moral affront but simply my question 
as to whether this can ever be done in a way that is rational 
and that justifies the enormous consumption of social 
resources.
    Chairman Feingold. Thank you very much, Mr. Turow.
    Mr. Hubert?
    Mr. Hubert. Thank you. I think the number of exonerations 
was so overwhelmingly great that it made Illinois become 
potentially the poster child for government that kills the 
innocent.
    Secondly, there have been points made of a disproportionate 
number of those who receive the death penalty who are black 
males, and so we always in a situation like that have to wonder 
whether or not, particularly in light of the fact that 
overwhelmingly prosecutors are white, the judges are 
overwhelmingly white, the jurors are overwhelmingly white--we 
have to go through the Batson situation to try to begin to 
rectify that--that we have to be concerned with whether there 
is fairness when you have those kinds of statistics. We are 
talking about two statistics. One is the number is just--it 
defies logic and reason, and it is embarrassing. I am 
embarrassed to sit here before the rest of the Nation and say 
Illinois has that. And then the other number is the 
disproportionate number of black males who are receiving the 
death penalty, and that needs to be studied to see whether or 
not that is a fair process.
    Thank you.
    Chairman Feingold. Let me just say, even though there is 
some competition between Wisconsin and Illinois, you shouldn't 
be embarrassed. You are just the State that had the courage to 
say, wait a minute, something is going on here. I think that is 
a great tribute to the State of Illinois, and I admire it 
greatly. Thank you for your comments.
    Senator Durbin?
    Senator Durbin. Thank you very much, Mr. Chairman.
    Mr. Scheidegger, let's go to this point where you are 
saying in your testimony that 4 years is the end of it----
    Mr. Scheidegger. No, Senator, I did not say that.
    Senator Durbin. Well, let me read what you say: Four years 
is more than sufficient to weed out the very few cases of real 
doubt of identity, but short enough that the American people 
would finally have the benefits of an effective death penalty 
system.
    Why did you say 4 years?
    Mr. Scheidegger. Thank you for giving me the opportunity to 
respond because I think Mr. Marshall seriously distorted my 
proposal, and I think he needs an emergency course in remedial 
statistics.
    I propose that we set as a goal a 4-year median, not a 4-
year limit. That is a very different thing. And I think what I 
am saying is that in a typical case, that is sufficient to 
confirm that it is a case involving no question of identity of 
the perpetrator, which is the norm.
    Certainly some cases will take longer than that, and----
    Senator Durbin. How would Congress enact a law calling for 
a 4-year median?
    Mr. Scheidegger. What I said was that we should state that 
as a goal, and we should continually look at proposals to work 
toward that goal. I did not propose a cutoff.
    Senator Durbin. All right. Then----
    Mr. Scheidegger. That is a gross distortion of my statement 
by Mr. Marshall.
    Senator Durbin. I am troubled. I don't believe Congress can 
enact a law that says on average we will only allow 4 years. I 
don't see how you can do that. I have seen a lot of laws----
    Mr. Scheidegger. I did not propose that, Senator.
    Senator Durbin.--in a long period of time so----
    Mr. Scheidegger. I did not propose that.
    Senator Durbin. I think we should try to have speedy 
review, and I think all of us agree on that.
    Let me see if there are things that we could all agree on, 
and obviously there are lot of differences here. Ms. White, let 
me ask you about this: Do you question the premise that when 
there is a courtroom considering a capital case, a serious 
case--and you have described one that is as graphic as I have 
ever heard--where we are asking for the death penalty, that you 
should have on both sides of the table, both the State and the 
defense, competent counsel?
    Ms. White. That makes my job so much easier if I have 
competent counsel on the other side and a competent judge.
    Senator Durbin. Great.
    Ms. White. Because then I don't have to worry about 
protecting the record for myself and for the defendant and for 
the judge. I much prefer very competent counsel on the other 
side and a competent judge, and I have always said we ought to 
have specialization in the judiciary as well as in the defense 
and prosecution----
    Senator Durbin. I agree completely.
    Ms. White.--because you have got to have specialization. 
This is too big an area to have people that don't know what 
they are doing.
    Senator Durbin. And I assume--and I don't want to assume 
too much, but I assume from that answer that you would also 
concede that if you had counsel on either side representing the 
people or representing the defendant who did not have a 
sufficient level of expertise, that the system of justice is 
not going to be served?
    Ms. White. Senator, when I teach law enforcement and 
prosecutors, I specifically tell them--and I have got it in my 
policy manual in my office--our job is not to arrest people and 
it is not to prosecute people. It is to arrest guilty people 
and to prosecute guilty people.
    And I take it very seriously. I go back and talk to every 
witness in the investigation. The police actually laugh about 
my ``to do'' list because before I will send it in to the grand 
jury, I send them back to talk to additional witnesses and so 
forth. But I don't plan on ever prosecuting anybody that I have 
any doubt about their guilt.
    Senator Durbin. Well, let me tell you why I think, I hope 
that everyone here at the table would come to that same 
conclusion, and I am going to invite those who might disagree 
to say so. But let me just put a footnote to this, Mr. 
Chairman. I have started looking at the whole question of how 
we attract the very best lawyers as prosecutors and as defense 
attorneys, and one of the biggest single obstacles are student 
loans. Now we have the prosecutors of our State, Mr. Kinsella, 
we had a group that came in--you may have been part of the 
group.
    Mr. Kinsella. Yes, about 2 weeks ago.
    Senator Durbin. About 2 weeks ago, saying we need some help 
here. We cannot attract and keep the prosecutors that we need--
and the same is being said on the defense side--unless we find 
some way for student loan forgiveness, because the payments of 
new law students at some Chicago firms that Mr. Turow knows 
very well are over $100,000 a year just out of law school. And 
you just can't get close to matching that.
    Currently, our only student loan forgiveness is extremely 
limited, and it only is for prosecutors.
    So I would hope that perhaps as we draw the conclusion we 
need competent counsel on both sides, we could also draw a 
conclusion that whatever your position on the death penalty, 
for goodness sakes, let's have the very best men and women 
sitting at those tables who are going to be prosecuting and 
defending. I hope we can concede that.
    Is there anyone who would question that conclusion? If 
there is anyone here who says that competent counsel is not an 
issue, please tell me now.
    Mr. Kinsella. No, and, Senator, you are right, we did meet 
from the--we were here from the National District Attorneys 
Association and representatives of the Illinois State's 
Attorneys Association, and I think we talked about this general 
issue of prosecutors being under scrutiny and questioning of 
competency and all the rest, as well as defense counsel. And I 
think you were very supportive of the concept that this is an 
issue that needs to be addressed. And as a prosecutor and as 
someone who has to hire lawyers to come into court and 
prosecute and then try and keep them beyond 2 or 3 years, it is 
difficult.
    Senator Durbin. The second point I would like to make is on 
DNA testing. We had a horrendous massacre at a Brown's chicken 
restaurant in the suburbs of Chicago about 9 years ago, and it 
went unsolved for the longest period of time. And then 
ultimately there was a break in the case, and a girl friend 
started talking, and the next thing you knew there were two 
suspects. And, fortuitously, 9 years ago, someone at a crime 
lab saved an unfinished chicken dinner that was in the 
restaurant that night and found enough DNA from the saliva on 
that unfinished chicken dinner to match with one of the alleged 
suspects. Incredible. Who would have dreamed that that 
unfinished chicken dinner 9 years later would be the key piece 
of evidence, or at least appear to be one of the key pieces of 
evidence?
    Now let me ask you about DNA testing. We didn't know 9 or 
10 years ago this was even an issue. Now we know it can clearly 
exonerate a person. I have a bill with Senator Leahy as well as 
Senator Specter which basically says this is now a fact. It is 
like fingerprints. It is like the reality of tests today. Is 
there anyone here who disputes the belief that at least those 
on death row should have an opportunity where it is clearly 
relevant to the case and there is a chain of custody of 
evidence that can be drawn into the case that the person on 
death row should have the benefit of DNA testing before there 
is a final decision on their execution? Mr. Kinsella?
    Mr. Kinsella. Senator, I think, in fact, Illinois was among 
the very first States that enacted a post-conviction DNA 
testing bill, and it was supported by prosecutors. If there is 
a person on death row--and keep in mind, there is a continuum 
going on here. DNA really kind of hit in the late 1980s, early 
1990s, and a lot of the cases we are talking about either 
occurred right before that or right at that time. And the 
testing is far more sophisticated now than it was initially.
    And so I think it important. No prosecutor wants to see an 
innocent person executed. I don't have horns in my head. I 
don't stand before a jury and ask them to sentence someone to 
death lightly. I think it is a very, very serious thing. But, 
unfortunately, I strongly believe there are cases where that is 
appropriate.
    Senator Durbin. The point I am getting to is this: We may 
disagree on the ultimate question are you for or against the 
death penalty, but it appears that reasonable people on both 
sides of that issue can agree that the system needs to be 
improved. And I think that is what the Commission said. The 
Illinois Commission didn't call to abolish the death penalty. 
It had a long list of recommendations. And these two were 
included, among others. We didn't have time or won't have time 
to get to videotaping confessions and the like.
    But I would just say that it really, I think, creates the 
burden on those of us who support the death penalty to look 
honestly at things which everyone agrees on, for and against 
the death penalty, and say these are changes which should be 
made if we are going to continue this system. Good prosecutors, 
good defense attorneys, and the average American is going to 
require us to take this hard look at it.
    The last point I will make--and then I will yield to the 
chairman--is keep this in mind, too: we are focusing on a 
small, small percentage of people accused of murder who end up 
on death row. Think of the much larger percentage of 
individuals who got the break of serving a life term in prison 
who will be there the rest of their lives. They are not part of 
this debate, and they are not part of this discussion. But you 
have to believe that the same hard questions we are asking 
about death row should be asked as well about other elements of 
the criminal justice system. Painful as it is to consider, the 
fact is that a lot of these people are not even being 
represented in this hearing, and they should be. Our system of 
justice really demands that we take this hard look, if not for 
justice, certainly to make sure that the wrongful are actually 
convicted and punished.
    Thank you.
    Chairman Feingold. I thank Senator Durbin for his 
tremendous contribution to this hearing and to this issue. I 
appreciate it very much.
    I ask unanimous consent that the statement of our chairman, 
Senator Leahy, be introduced at this time. Without objection.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Feingold. I guess we have time for a few more 
questions before 11 o'clock. I am going to ask Mr. Turow and 
Mr. Hubert and Mr. Bettenhausen to answer the same question.
    In her statement, Ms. White says that the Commission was 
unbalanced and skewed in favor of defendants and against 
victims and community interests, and Mr. Scheidegger suggests 
that one way to address victims' needs is to reduce the death 
penalty appeals process. He suggests that the time from 
sentence to execution be no longer than 4 years.
    Could each of you comment on this criticism that victims' 
rights were not adequately considered by the Commission and 
that the way to address victims' rights is to mandate a time 
certain maximum period from sentence to execution? Mr. Turow?
    Mr. Turow. Thank you, Mr. Chairman.
    We met extensively with the surviving family members of 
murder victims. We had a number of public hearings. It became 
clear, when it was the time for public discussion, that it was 
difficult for victim families to appear. And as a result, we 
had a number of private sessions with the--at the urging of all 
of the Commission members. We wanted to hear from victims. And 
we considered their points of view very carefully, and I, 
speaking personally, learned a great deal, because although I 
have been a defense lawyer, I was not, while I was a Federal 
prosecutor, directly involved in capital prosecutions, although 
I did have a very dear friend in the office who did do a 
capital case.
    And, you know, one of the things that I learned was that it 
is a unique loss to lose someone to a murder, and certainly 
victims have a right to a system that takes away any temptation 
for self-help and that relieves them of the ultimate indignity 
of thinking that that murderer might murder again.
    One of the things that is very important is that no one who 
is sitting here today is proposing that murderers be set free. 
The issue always in the capital punishment debate is whether 
life without parole or capital punishment is sufficient to meet 
the policy goals of our system.
    Chairman Feingold. Thank you, Mr. Turow.
    Mr. Hubert?
    Mr. Hubert. Yes, first of all, one of the members of the 
Commission, when he was a boy, his dad was brutally murdered. 
He spoke eloquently, very persuasively on the issue. He 
sensitized us to it.
    I refer you also to page 192 through 195 of the report. One 
subject that we identified clearly was victim issues, and in 
that report we indicated that, ``The Commission met privately 
with a representative group of family members of homicide 
victims.'' And we did. We took an entire day, and they gave us 
graphic and detailed and startling testimony.
    The Illinois Criminal Justice Information Authority 
provided important research papers that we included in our 
analysis, and, finally, we held focus groups with surviving 
members.
    It is hard to talk about a time limitation. It reminds me, 
when I was in law school, that there are very few per se rules 
in this country. Our jurisprudence does not lend itself to per 
se rules, because it ultimately excludes the exception, it 
ultimately leads to inhumane results. And, indeed, I believe 
that a time limit on the issue of reviewing whether someone has 
been--someone who is innocent has been given the death penalty 
is another example of that.
    So I would say that we did very clearly look at the 
victims' issue, and I believe also that a time limit on this 
issue would be un-American.
    Chairman Feingold. Thank you.
    Mr. Bettenhausen?
    Mr. Bettenhausen. A couple things, Senator. Thank you.
    First of all, the Commission asked for three studies on 
victims' issues. While we talk about 85 recommendations, there 
are a lot more recommendations for change when you start 
looking at the appendix, and in that appendix are those three 
studies about victims' issues and a number of things that 
prosecutors, defense attorneys, and just the criminal justice 
system needs to do in order to treat victims better, more 
fairly, and to assist them to go through this process.
    We also have to keep in mind that not all victims think 
alike on this issue. The Governor and I have met on a number of 
occasions with Bud Welch, who lost a daughter in Oklahoma when 
Timothy McVeigh bombed that building. The Governor has a friend 
from Kankakee who lost her sister, her brother-in-law, and an 
unborn child who is against capital punishment and doesn't 
believe in it.
    But not all victims speak with the same voice on this 
particular issue, so we have looked at those issues. And I 
would also note, in terms of the time limits, the Commission 
also looked at the kinds of delays that you have in the system. 
The cases are not being investigated. They are not moving on. 
We proposed reforms that don't allow the courts to continue to 
sit on these cases, but that they need to look at them and 
progress the cases through the criminal justice system so that 
we get final resolution, not only capital cases but also in our 
criminal justice system in general.
    So I would like to follow up, which goes to Senator 
Durbin's question, the Governor has also been very concerned 
about the fact that we are making these kinds of mistakes in 
capital cases where we invest the most resources that we have. 
There have got to be many, many more innocent people who are 
sitting in our prisons, and that is one of the reasons why he 
commissioned another group to look at the criminal code and 
propose reforms to our entire criminal justice system.
    I would also add for Senator Durbin, a good friend of his 
from Springfield here, Bill Roberts, put together a report 
about the need to adequately fund the criminal justice system, 
and one of the things is loan forgiveness, and we had 
incorporated those recommendations as well in our report. And I 
would be remiss if I didn't hit this because I have also talked 
with your staff and Senator Durbin's staff. As you know, you 
have passed the Coverdell DNA Backlog Act to provide Federal 
funding for it. This is a serious issue for the criminal 
justice system, the backlogs that exist in DNA laboratories 
throughout the United States. Crimes could be solved, victims 
could be protected. We need--this is a Federal issue because 
the national database, in order to make it really work, needs 
to be manageable. And we need the help and we need the dollars. 
We are not seeing enough Federal funds coming to the States to 
make sure that we can truly use DNA in our criminal justice 
system.
    Chairman Feingold. Thank you, Mr. Bettenhausen.
    I have one final question for Ms. White. You say in your 
statement that you disagree with recommendation 4 of the 
report, which would require all custodial interrogations of a 
suspect in a capital case to be videotaped. Is that accurate?
    Ms. White. I think it is a good idea to do, and, in fact, 
what we do--because my office alone--I work in a jurisdiction 
of slightly less than a quarter of a million, and I got cut 
$200,000 this year in one year, and so my objection is just 
that it be mandated. What we like to do is do the 
interrogation, have the written statement made, and then for 
time sake, because we don't have the personnel to transcribe 
and do all of these other things, then turn on a tape recorder 
or video, have the individual Mirandized, have him read his 
statement and say, yes, there are no further changes, there are 
no additions that I would like, and that is just from--we just 
don't have the number of tapes and the money to----
    Chairman Feingold. So it is sometimes done in South 
Carolina but is not required?
    Ms. White. The whole thing is not taped. What I like is--
because sometimes, you know, in an--for one thing you don't 
even know who the suspect is sometimes when you are starting. 
For instance, a domestic abuse case, I have got one pending 
right now where the guy calls in and says she committed 
suicide. Well, at first you think he had found a suicide. You 
start getting your tests back, your blood spatter and so forth, 
and you realize it is not, it is a murder. So the entire 
interrogation of him the first day, you didn't even know he was 
a suspect.
    So at the point you know he is a suspect and he or she is 
giving a statement, instead of taping hours of various 
interviews as the system evolves----
    Chairman Feingold. Your concern is about resources.
    Ms. White. Right.
    Chairman Feingold. You don't have any concern about the 
effect that the act of recording will have.
    Ms. White. No, I actually----
    Chairman Feingold. You don't know of any cases where 
suspects have been reluctant to talk on tape or that suspects 
give false confessions.
    Ms. White. That would be one of my concerns, of course, is 
that they might be reluctant. But I think at that point, once 
they have given their statement and it is reduced to writing, 
then turning on a tape, that just prevents them from being able 
to come into court and say, ``I didn't know what I was doing.'' 
So I actually prefer that they do tape the reading of the final 
statement so that that can't be done and everybody knows that 
is really and truly the final statement. But that is just a 
little more economic.
    Chairman Feingold. All right. Thank you very much. I want 
to thank everyone on the panel as we hit 11 o'clock. The record 
of this hearing will remain open for a week for Senators or 
interested parties to submit statements or other material. 
Within that time, Senators may submit questions for our 
witnesses.
    Let me just say finally that I think this was an excellent 
discussion. We got a lot of different viewpoints out. But I am 
absolutely convinced, based on the statistics that we all know, 
that not only were 101 people exonerated, although I cannot 
state the names, I am certain that there are innocent people on 
death row now and that innocent people have been executed, 
because it is not possible when you have one versus eight in 
terms of executions versus exonerations that that has not 
happened. And this country, with the principle of equal justice 
under law, has got to address this issue whether you are for or 
against the death penalty. And you have taken a great step 
today in moving us in that direction.
    I thank you and I conclude the hearing.
    [Whereupon, at 11:00 a.m., the subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]
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