[Congressional Record (Bound Edition), Volume 148 (2002), Part 4]
[Senate]
[Pages 4594-4596]
[From the U.S. Government Publishing Office, www.gpo.gov]




 THE REPORT OF THE ILLINOIS GOVERNOR'S COMMISSION ON CAPITAL PUNISHMENT

  Mr. FEINGOLD. Madam President, I rise today to talk about another 
significant milestone in our Nation's debate on the death penalty. Last 
week, our Nation witnessed the 100th innocent person to be freed from 
death row in the modern death penalty era--that is, since the Supreme 
Court found the death penalty unconstitutional in 1972. Number 100 is 
Ray Krone. Krone spent 10 years in the Arizona prisons for a murder he 
did not commit.
  Yesterday, our Nation reached another milestone. The Illinois 
Governor's Commission on Capital Punishment released its report on the 
Illinois death penalty system. This report details problems with the 
administration of the death penalty in Illinois and makes dozens of 
recommendations for reform. This is actually the first comprehensive 
analysis of a death penalty system undertaken by a Federal or State 
government in the modern death penalty era.
  Governor George Ryan of Illinois first made history 2 years ago when 
he was the first Governor in the Nation to step forward and place a 
moratorium on executions. He recognized that the death penalty system 
is plagued with errors and the risk of executing the innocent. Governor 
Ryan, who had supported the death penalty as a State legislator, 
realized that the death penalty system was so broken that justice could 
no longer be assured. Since reinstatement of capital punishment in 
Illinois in 1977, Illinois had put 12 people to death. But during this 
same period, 13 people were exonerated and removed from death row.
  What led to this alarming ratio of 13 exonerations to 12 executions? 
It was a number of problems--from incompetent counsel, to convictions 
based on unreliable testimony of jailhouse informants, to mistaken 
eyewitness testimony, and, in some cases, police misconduct.
  As Governor Ryan said when he suspended executions:

       I cannot support a system, which . . . has proven to be so 
     fraught with error and has come so close to the ultimate 
     nightmare, the State's taking of innocent life.

  But we know that it is not just Illinois that has come so close to 
this ultimate nightmare. One hundred innocent people nationwide have 
been released from death row. Thirteen are in Illinois, but the 
remaining 87 innocent individuals were convicted and sent to death row 
by justice systems in States such as Arizona, California, Florida, 
Maryland, and Texas.
  Governor Ryan did the right thing. Before signing off on another 
execution warrant, he wanted to be sure with moral certainty that no 
innocent man or women would face a lethal injection. But as he 
suspended executions, he also created an independent commission to 
review the death penalty in Illinois. This 14-member, blue ribbon 
commission includes our former colleague, and dear friend Senator Paul 
Simon; Judge Frank McGarr; Thomas Sullivan, a former U.S. Attorney; and 
Bill Martin, a former Cook County prosecutor. Judge William Webster, 
who has served our Nation with distinction as the former Director of 
the CIA and the FBI, was a special advisor to the commission.
  Two years after its creation, I am pleased to report that the 
Governor's Commission on Capital Punishment has completed its work. 
Both death penalty supporters and opponents came together to review the 
problems in Illinois and have made numerous recommendations for reform. 
The people of Illinois will not determine how to respond to the 
commission's recommendations.
  I want to commend Governor Ryan for his leadership and the members of 
the commission for their dedication throughout this long process. Their 
work is a credit to Illinois and is a model for the Nation.
  While Illinois is the only State that has suspended executions, it is 
not the only State whose death penalty system is fraught with error. In 
fact, according to a Columbia University study, the overall rate of 
serious error in the Illinois death penalty system is 2 percent lower 
than the national average, which is 68 percent. In other words, from 
1973 to 1995, over two-thirds of death penalty convictions nationwide 
were reversed on appeal based on serious, reversible error. That is not 
just every once in a while. The experts found that almost 7 out of 10 
death penalty verdicts will be reversed on appeal, and not for 
technical reasons, but for substantive, serious reasons.

[[Page 4595]]

  In the vast majority of these cases reversed on appeal, defendants 
were found to deserve a sentence less than death when the errors were 
cured on retrial. And 7 percent were found to be innocent of the crime 
altogether.
  These data show that the same kinds of grave errors that Governor 
Ryan saw in Illinois exist in death penalty systems across the United 
States. Incompetent counsel, flimsy or unreliable evidence, and 
sometimes even prosecutorial or police misconduct--all of these have 
led to convicting the innocent or, at a minimum, unfair proceedings. We 
also know that whether you live or die sometimes depends on the color 
of your skin or where you live. For example, according to a study that 
reviewed capital prosecutions in Philadelphia from 1983 to 1993, Black 
defendants were nearly four times as likely to receive a death sentence 
than non-Black defendants who had committed similar murders. These 
errors and bias in the system are simply wrong and unjust.
  Fortunately, it is not just Governor Ryan and I who are saying there 
is something terribly amiss. A growing chorus of Americans have come 
forward to say the death penalty system is fraught with error.
  One of those Americans is Justice Sandra Day O'Connor. Last summer, 
Justice O'Connor expressed her concern about the risk of executing the 
innocent. She said:

       Unfortunately, as the rate of executions has increased, 
     problems in the way [in] which the death penalty has been 
     administered have become more apparent.

  She also said:

       Perhaps most alarming among these is the fact that if 
     statistics are any indication, the system may well be 
     allowing some innocent defendants to be executed.

  Madam President, I call on Congress to heed Justice O'Connor's 
warning and follow the example of the State of Illinois. My bill--a 
bill that I am working with the Senator from New Jersey, Mr. Corzine 
on--is the National Death Penalty Moratorium Act, and it applies the 
Illinois model to the rest of the Nation. My bill would suspend Federal 
executions and urge the States to do the same, while a National 
Commission on the Death Penalty reviews the death penalty systems at 
the State and Federal levels. The national commission would study 
whether the administration of the death penalty is consistent with 
constitutional principles of fairness, justice, equality, and due 
process.
  So, Madam President, I again commend Governor Ryan and the people of 
Illinois for their leadership. I recently had the chance to speak to a 
gathering of pro-moratorium supporters in Illinois, the ``Land of 
Lincoln.'' I told them that I believe they are carrying the mantle of 
Lincoln. They have given their full devotion to Lincoln's call for 
freedom and justice throughout the land. In fact, some might say that 
the struggle for fairness in our Nation's criminal justice system today 
is, in some ways, an unfinished chapter of the struggle for freedom 
from slavery earlier in our Nation's history.
  Madam President, we should follow the lead of our fellow Americans in 
the ``Land of Lincoln.'' Let us continue their effort with a nationwide 
moratorium and a reexamination of the administration of the death 
penalty. To continue the status quo and risk the execution of another 
innocent person is truly unjust and just unconscionable.
  I urge my colleagues to join me in supporting the National Death 
Penalty Moratorium Act.
  At this point, I yield the floor because I am pleased to see my 
colleague and tremendous ally in this issue, Senator Corzine.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. CORZINE. Madam President, let me begin by saying how pleased I am 
to stand with Senator Feingold, who is a man of conscience, who has 
spoken out for the need for our Nation to examine the practice and 
application of the death penalty. His call for a moratorium, as was 
recently provided in the State of Illinois by their Governor, I think 
is an act of courage and one that is responsible if we all believe in 
justice, the rule of law, and fairness, which is defining to America.
  As I know Senator Feingold outlined, yesterday a commission in the 
State of Illinois on capital punishment, appointed by Governor George 
Ryan, released its report on the death penalty. The report raises 
serious concerns about the fairness of the application of the death 
penalty and about whether justice is being fairly applied. That 
commission came back with a number of very important recommendations 
and movement for reform.
  In light of that report, I wish to take this opportunity to truly 
underscore the effort Senator Feingold has made to raise the level of 
discussion about the state of the death penalty as it is applied 
nationally. It is critical that we make sure that the system protects 
innocent victims and provides for the true application of justice as we 
know it, making sure fairness and the rule of law are practiced.
  Last week a man named Ray Krone was released from prison. Mr. Krone 
had been convicted of murder. He had already served 10 years behind 
bars and had been sentenced to die. But Mr. Krone is, and always had 
been, an innocent man. New DNA evidence proved that conclusively. He 
was convicted for a crime he did not commit. Prosecutors now admit it. 
I think the local county attorney put it: He deserves an apology from 
us. That is for sure. To put it mildly, that is an understatement.
  How would any of us feel if we had been charged, tried, and convicted 
by a jury of our peers for a crime we didn't commit and then, to top it 
off, sentenced to die? Ray Krone knows what that feels like and, 
unfortunately, he is not alone. In fact, he was the one-hundredth 
person, since we reinstated the practice of the death penalty in this 
Nation, to be released from death row in the United States, with post-
trial proof of the individual's innocence. These 100 innocent people 
have experienced nothing short of living hell. And the outrageous 
injustice of their convictions and their sentences should be a wake-up 
call for all of us.
  I take second place to no one in my determination to fight the 
scourge of crime. As part of that effort, I believe we need to be very 
tough on violent criminals, including imposing long sentences and the 
potential for no opportunity for parole. But while we get tough on 
crime, we also need to recognize that our criminal justice system makes 
mistakes--sometimes very serious mistakes. Until recently, it was 
virtually impossible to know when innocent people were wrongfully 
convicted. But today, with the advent of DNA technology, it is far less 
likely to occur if we let the evidence come to light.
  Why are innocent people convicted and sentenced to death? To a large 
extent, it is because our criminal justice system has some systemic 
flaws and, frankly, some biases as well, in how it is applied.
  Capital defendants are more likely in some parts of our country to be 
subject to the death penalty than others, and they certainly would give 
at least the appearance of some racial prejudice administered there.
  Capital defendants often have lawyers who do a terrible job. Frankly, 
there are instances where people have shown up inebriated and unable to 
carry out their functions in court. Sometimes their failures are simply 
as a result of carelessness, or lack of preparation, or inexperience, 
or a failure to find and interview key witnesses, a failure to 
thoroughly read the case law, and a failure to object to unreliable 
evidence. They make a variety of mistakes.
  I don't say this to criticize all defense attorneys. We accept that 
most of them try to do a good job. But in many cases where people do 
not have the economic resources to access the kind of talent necessary 
to defend them, they may be outgunned in a court of law. Even if they 
worked 24 hours a day, 7 days a week, they may just be overwhelmed by 
the resources they are fighting against.
  Ineffective assistance of counsel is just one reason why innocent 
people find themselves on death row. Sometimes eyewitnesses make honest 
mistakes. Sometimes witnesses give false testimony to protect their own 
hide, such as jailhouse informants seeking

[[Page 4596]]

reduced sentences. Sometimes prosecutors engage in misconduct by 
withholding evidence that could help the defendant's case and not 
following the rule of law, which is what we are all expected to do. Any 
of these factors can lead to a wrongful conviction. And now we have 100 
examples of the circumstances that can provide for that reality.
  A system that wrongly sends 100 people to death row can be called a 
lot of things, but ``fair'' and ``equitable'' and ``just'' are not 
among them. In fact, our criminal justice system is badly broken, in my 
view. Before we send any more innocent people to death row, we need to 
fix it. That was clearly the conclusion reached by the commission of 
distinguished experts appointed by Governor Ryan. The Ryan commission 
was in charge of examining how the death penalty system is working in 
Illinois. But its conclusions, no doubt, are applicable to the Nation 
as a whole.
  The commissioners were unanimous in agreeing that the death penalty 
had been applied too often and that the system is in need of reform. I 
think there were 13 overturned death penalty convictions in Illinois 
out of the total of 25 before the commission went to work. Clearly, 
there were problems in Illinois and the Governor should be commended 
for recognizing that and moving forward.
  Now we need to do that as a nation. That commission called for a 
broad range of specific changes. These include video taping the 
questioning of capital suspects in a police facility, barring capital 
punishment based exclusively on the testimony of single witnesses--
particularly witnesses who are jailhouse convicts--eliminating the 
death penalty for people who are mentally retarded, and requiring trial 
judges to agree with the jury about the imposition of a death sentence.
  I hope all of my colleagues will take a look at the Ryan commission's 
report and think hard about the need to reform our criminal justice 
system, to think about the fairness that is fundamental to what America 
is about. Make no mistake, it is an enormous injustice when the death 
penalty is imposed based on false information.
  Innocent people have been sent to death row and there will be more if 
we don't actually take up this charge of reviewing how we got to this 
conclusion. We have a moral obligation to do something about this.
  I have joined with Senator Feingold--and I am proud to do so--in 
cosponsoring legislation to establish a moratorium on all Federal 
executions until a commission, much similar to the Ryan commission, can 
be established to review the death penalty for our Nation and impose 
meaningful reforms that give the public a greater sense that we have a 
fair and just system being applied to all Americans.
  This would not lead to the release of any convicted criminals or 
threaten public safety in any way. It would simply ensure innocent 
people are not put to death and that the principles we believe in--
fairness and rule of law--apply.
  I urge my colleagues to support this legislation. Again, I express my 
sincere appreciation for the leadership of Senator Feingold in this 
critically important matter.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Madam President, I commend my colleague from New Jersey 
and my colleague from Wisconsin for raising this very important issue. 
It deserves the attention of every American, not just those who serve 
in this body.

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