[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
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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
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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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