Ultimate Punishment (16 page)

Ryan commuted the sentences of the 167 persons left on death row
: M. Possley and S. Mills, “Clemency for All; Ryan Commutes 164 Death Sentences to Life in Prison Without Parole; ‘There Is No Honorable Way to Kill,' He Says,”
Chicago Tribune
[Chicagoland Final Edition], 1/12/03, p. 1; S. Mills, “After Years of Soul Searching, Ryan Decides Not to ‘Play God,' ”
Chicago Tribune
[Chicagoland Final Edition], 1/12/03, p. 1.

Justice Blackmun wrote, in a famous dissent: Collins v. James
, 510 U.S. 1141, 1143 (1994).

A number of prosecutors, police officers, and survivors expressed outrage
: M. Possley and S. Mills, “Clemency for All; Ryan Commutes 164 Death Sentences to Life in Prison Without Parole; ‘There Is No Honorable Way to Kill,' He Says,”
Chicago Tribune
[Chicagoland Final Edition], 1/12/03, p. 15; J. Kellman, “Relatives of Victims Feel Cheated,”
Chicago Tribune
[Chicagoland Final Edition], 1/12/03, p. 1.

The
St. Louis Post-Dispatch
…published poll results
: “Illinoisans Are Split Closely on Ryan's Commutations,”
St. Louis Post-Dispatch
, 2/7/03. The poll showed that 50.5 percent of respondents disagreed with Ryan and 47.5 percent agreed, bringing the results within the poll's margin of error. Intriguingly, the response in Illinois closely mirrored reactions in the rest of the country. In a national poll, conducted by Harris Interactive for CNN and
Time
, those with opinions were evenly divided about whether Governor Ryan had done the right thing. Harris Interactive, 1/17/03. See
http://www.deathpenaltyinfo.org/Polls.html#ABCNewsWashPost12403
.

a bill to abolish…received a favorable vote
: H.B. 213. See
http://www.legis.state.il.us./legislation/default.asp
; K. McCann and C. Parsons, “Death Penalty Debate Gets Forum in House,”
Chicago Tribune
[Chicago Final Edition], 3/7/03, p. 1; “House Panel: End Death Penalty,”
Chicago Tribune
[RedEye Edition] 3/7/03, p. 6.

One bill mandated videotaping interrogations
: For further details see
http://www.legis.state.il.us/legislation/default.asp
, and C. Parsons and K. McCann, “Taped Confessions Bill Passes; Governor Says He Will Sign Measure Requiring Record in Homicide Interrogations,”
Chicago Tribune
[Chicago Final Edition], 5/9/03, p. 1. For some history of the legislation, see “A Remarkable Week for Justice,”
Chicago Tribune
, 4/7/03 (Editorial), and C. Parsons and K. McCann, “Senate OKs Death-Penalty Bills,”
Chicago Tribune
, 4/4/03 (Metro Section).

A second…reform measure…passed…in late May
: SB 472, viewable at
http://www.legis.state.il.us/legislation
. See also C. Parsons and R. Long, “Death Penalty Reform Goes to Blagojevich,”
Chicago Tribune
[Chicago Final Edition], 5/30/03, p. 1.

the new Governor…promised to sign the videotaping bill
: C. Parsons and K. McCann, “Taped Confessions Bill Passes; Governor Says He Will Sign Measure Requiring Record in Homicide Interrogations,”
Chicago Tribune
[Chicago Final Edition], 5/9/03, p. 1. See also T. Sullivan and S. Turow, “Taping Interrogations a Much-Needed Reform,”
Chicago Tribune
[Chicago Final Edition], 5/6/03, p. 23.

Blagojevich also spoke favorably about the broader reform
: New reports on May 29 and 30 describe the new Governor's remarks about the reform bill and his comments about lifting the moratorium, and details of the legislative action. C. Parsons and R. Long, “Death Penalty Reform Goes to Blagojevich,”
Chicago Tribune
[Chicago Final Edition], 5/30/03, p. 1; S. McLaughlin, “House Advances Death Penalty Reform,”
Kankakee Daily Journal
, Metro Section, 5/30/03; “Senate Sends Sweeping Death Penalty Reform to Governor,” at
http://abclocal.go.com/wls/news/052903_ns_deathpenalty.html
.

Arthur's reflections about the world of criminal law: Reversible Errors
(Farrar, Straus and Giroux, 2002), pp. 6–7.

jailers…find an execution…unsettling: Witness to an Execution
, by Sound Portraits Productions (2000), an audio record of the reflections of Jim Willett, former Warden at the death house in Huntsville, Texas, as well as of other correctional personnel, shows how discomforting an execution is for those who perform it. See
www.soundportraits.org
.

Easley…evidence at his sentencing hearing: People v. Ike J. Easley, Jr
., 148 Ill. 2d 281, 346, 592 N.E.2d 1036, 1065, 170 Ill. Dec. 356 (1992).

conservatives with growing doubts
: For a survey of many opinions about capital punishment, including conservative critics of the death penalty, see, for example, W. Saletan's article, “Calculating the Risk,” in July/August 2000 issue of
Mother Jones
, posted at
http://www.motherjones.com/mother_jones/JAoo/power_jaoo.html
. George Will, probably the nation's most highly regarded conservative columnist, has expressed continuing reservations about capital punishment. Notwithstanding those, however, he excoriated Governor's Ryan's blanket commutations in his syndicated column, “Unhealable Wounds,”
The Washington Post
, 1/19/03, p. B7. Will repeated a comment he had made before—“Conservatives, especially, should remember that capital punishment is a government program, so skepticism is warranted”—and also observed, “By causing courts to multiply restrictions on the imposition of capital punishment, opponents of such punishment have helped make its administration capricious, thereby doubling the arguments against it: capriciousness, and the fact that this reduces the death penalty's ability to deter, and even the ability of social science to measure its deterrent power.” Will found the best argument for capital punishment the one I've dubbed “moral proportion.” In support, he quoted—me, a passage from
Reversible Errors
. His column is posted at
http://www.jewishworldreview.com/cols/will012103.asp
.

the Menendez brothers…or the Unabomber
: For a comprehensive description of the crimes of Erik and Lyle Menendez, see
http://www.crimelibrary.com/menendez/menendezmain.htm
. A lengthy résumé of the Unabomber investigation and the legal proceedings leading to life imprisonment for Theodore Kaczynski is on the Web at
http://www.cnn.com/SPECIALS/1997/unabomb/
.

justices…have waffled
: Compare Blackmun's dissent in
Callins v. James
, 510 U.S. 1141, 1143 (1994), with his dissent in
Furman v. Georgia
, 408 U.S. at 407–9. Compare Justice Powell's dissent in
Furman
, 408 U.S. at 421–27, his opinion in
Gregg v. Georgia
, 428 U.S. 153 (1976), and his opinion in
McKleskey v. Kemp
, 481 U.S. 279 (1987), with his comments to his biographer about
McKleskey
. Jeffries,
Justice Lewis F. Powell, Jr: A Biography
(1994), p. 451. Compare Justice Stevens's opinion in
Gregg
with his dissent in
McKleskey
, 481 U.S. at 368, where he stated that the Constitution will not tolerate a racially discriminatory death penalty, and suggested that the Georgia statute he had approved in
Gregg
be dramatically narrowed. Compare Justice White's concurring opinion in
Furman
, 408 U.S. at 311–14, with his concurrence in
Gregg
, 428 U.S. at 207, and Justice Stewart's concurrence in
Furman
, 408 U.S. at 306–11, with his opinion in
Gregg
.

A number of persons are due special thanks for their help in the writing of this book. Beyond my fellow members of the Illinois Capital Punishment Commission, the staff that supported us under Matt Bettenhausen's guidance was remarkably professional and informed. To the estimable Jean Templeton and to Nancy Miller, both of whom continued to answer my questions and provide assistance long after the Commission's work was complete, I owe deep and prolonged bows of gratitude, as I also do to Rick Guzman.

Aside from the Commission staff, Rachel Turow offered extensive and unerring research assistance over a number of months, which was essential to my work. My thanks, too, to Chris Thomas for letting me discuss our communications in instances where I would not have done so without his permission.

I am also grateful to a number of persons at
The New Yorker
for their help with the article on which part of this book is based: David Remnick for commissioning it, Jeff Toobin for encouraging me, Marina Harss and Nandi Rodrigo for scrupulous fact-checking, and Sharon Delano for a number of useful editorial suggestions. To my editor and publisher at Farrar Straus, Jonathan Galassi, who has long urged me to write extended nonfiction about the law, my debt of gratitude only grows deeper.

My partners at Sonnenschein Nath and Rosenthal, and in particular our Chair, my dear friend Duane Quaini, who have long supported the legal work that much of this book describes are also due my thanks. Mary Kramer, the superb paralegal who not only organized, but also frequently appeared to have memorized, the vast legal record in both the Hernandez and Thomas cases, once again provided unhesitating aid while I was writing. Without my secretary at SNR, Ellie Lucas, and my personal administrative aide, Kathy Conway, who wrestled the end notes into submission, there is no telling what might have happened.

As always, no thanks are adequate for Annette for her consistent insight and encouragement.

Any mistakes that remain, despite the dogged efforts of all of these persons, are only my fault.