Ultimate Punishment (7 page)

W
HEN I TALKED
about abolishing capital punishment with law enforcement professionals, whether they were correctional officers, police, or veteran prosecutors, I often heard the same riposte:

“Well then, what do you do about Henry Brisbon?”

In these circles, Henry Brisbon is Illinois' poster child for the death penalty. In person, it's hard to see what all the fuss is about. Brisbon looks a little like Eddie Murphy, a solidly built African American of medium height, appearing somewhat bookish in his heavy glasses. He comes across the way Murphy did playing Axel Foley in
48 Hrs
.: an amiable, quick-witted rogue greatly amused by himself. No one disputes that Brisbon is extremely bright. When I visited Henry, he had already read a great deal about the Commission on Capital Punishment and offered me predictions about which potential reforms would be road-blocked politically. His guesses were as well informed and reasonable as those of most commentators.

But the movie character Henry Brisbon most closely resembles in terms of his conduct is Hannibal Lecter. He is a veritable killing machine. Brisbon is the “I-57 murderer,” a crime so infamous many Illinoisans still cringe at those words. On the night of June 3, 1973, Brisbon and three “rap partners”—his term—forced several cars off the interstate that runs south of Chicago. In one vehicle Brisbon found a woman, whom he forced to undress. He then discharged a shotgun in her vagina. From another car he rousted a young couple, compelling them at gunpoint to lie down in a field. Brisbon instructed them to “make this your last kiss,” then shot both in the back.

The crimes went unsolved for years. Brisbon's role was uncovered only when he confessed to a law librarian in the penitentiary where he was serving a stretch for rape and armed robbery. By the time Brisbon could be brought to trial, the U.S. Supreme Court had declared the death penalty unconstitutional, and Brisbon was instead sentenced to 1,000 to 3,000 years, still probably the longest prison term ever imposed in Illinois.

In October 1978, eleven months after the sentencing, Brisbon murdered again. He placed a homemade knife to the throat of a guard, whom he locked in his cell, and then led several inmates to another prisoner, whom a witness said Brisbon stabbed repeatedly. The death penalty had been restored by now, and Brisbon was sentenced to be executed. The evidence in his sentencing hearing included proof of yet another murder Brisbon had allegedly committed prior to his incarceration, when he placed a shotgun against the face of a store clerk and blew him away, and of Henry's role in leading a prisoner uprising at Stateville penitentiary in September 1979 in which several guards were assaulted.

Even after his death sentence in 1982, Brisbon has continued to compile an impressive disciplinary dossier. By now he has had over 250 disciplinary tickets, and just a small sample of his alleged misbehavior since he was first sentenced to death includes stabbing two other inmates, stabbing a guard, hitting a guard in the face with a wooden plank, and throwing a thirty-pound weight against the head of a fellow prisoner, who was seriously injured.

Brisbon is currently housed at the Tamms Correctional Center, referred to in the trade as CMAX, a “closed” maximum-security facility, and as a “Super-Max” in popular parlance. Tamms is where the worst of the worst arrive, roughly 250 bad guys culled from an Illinois prison population of almost 45,000, most of them gang leaders or men with intractable discipline problems, especially a history of attacking other prisoners or guards. Inmates remain until they have demonstrated an ability to curb their inclinations to violence. There is no indication that Brisbon will be leaving soon.

From the time I was appointed to the Commission, I requested the chance to visit Tamms, an opportunity that is extended to few outsiders. But I regarded seeing Tamms as critical. Henry Brisbon's execution might not deter other people from killing, but it will definitely keep Brisbon from murdering anyone else. Thus, the pivotal question for me was whether there were means besides execution to control the Brisbons of the world, the prisoners whose records suggest that they are so bad to the bone that they are clearly prone to murder again if given the opportunity. If the conditions of their confinement cannot reliably prevent this, the argument in favor of capital punishment in Brisbon's case, and others like it, seems overwhelming to me. It is simply unjust to force a kind of lottery on correctional officers, doctors, nurses, and other inmates waiting to see which one of them will eventually be maimed or murdered.

So, after dozens of requests, in the spring of 2002, I was allowed to make the trip with Matt Bettenhausen and Nancy Miller, then a lawyer with the Department of Corrections, who provided continuing expertise to the Commission. Tamms is located near the bottom point of Illinois, where the state is farther south than parts of Kentucky. The Mississippi, a wide body of cloacal brown, floods the nearby lowlands, creating a green region of marshes along the orange sandstone bluffs. At the foot of one of these stone outcroppings, on twenty-six acres of a vast savanna-like grassland, stands the Tamms closed facility.

The terms of confinement in Tamms CMAX are admittedly grim. Inmates are permitted no direct flesh-to-flesh contact with other human beings. Each prisoner is held twenty-three hours a day inside a seven-by-twelve-foot block of preformed concrete, weight approximately thirty-two tons, which has a lone window to the outside, roughly forty-two by eighteen inches and segmented by a lateral steel bar. The cell contains a single stainless steel fixture holding both a toilet bowl and a sink, and a concrete pallet over which a foam mattress is laid. The door is punch plate, steel pierced by a network of half-inch circles almost like bullet holes, which permits conversation but prevents a prisoner from doing the mayhem possible when he can get his hands through the bars. Once a day, an inmate's door rolls back under remote control, and at the end of the corridor of cells, the doorway slides open, allowing exit to an outdoor area, twelve by twenty-eight feet, half of it roofed and all of it surrounded by thirteen-foot concrete walls. For an hour, the prisoner may exercise or just breathe fresh air. Showers are permitted on a similar remote-control basis, twenty minutes, several times a week.

For those who remain recalcitrant—and few do—there are still privileges that may be suspended. For example, misbehaving inmates can be put on meal loaf, which means that, rather than usual fare, they are fed a brown mass of mashed meat, spinach, and meal, among other ingredients. I sampled meal loaf and noted an undertaste of molasses. Fresh from the oven, it wasn't terrible, but several days eating nothing but this would certainly catch my attention. Prisoners who cooperate are progressively rewarded, with high favor represented by the installation of a TV, housed in a clear plastic case to prevent anyone from turning it into a weapon. (Listening to the Warden, George Welborn, describe the infractions of inmates, I was reminded again that criminality stands beside art as a testament to human imagination. Even the paranoid schizophrenics who engage in group therapy inside steel booths that resemble the isolation chambers on old TV quiz shows manage to steal the monopoly money used in their weekly games.)

Like most penal institutions, Tamms has its critics. In addition to the objections from the left that the isolation and restriction of Super-Maxes constitute cruel and unusual punishment, there are also complaints from the right. Tamms is expensive, in part because, blessedly, it is not full. The roughly $52,000 spent in 2002 on each Tamms prisoner was two and one half times the approximately $20,500 it cost on average to imprison an inmate in Illinois' other penitentiaries. You don't have to be Archie Bunker to think Henry Brisbon isn't worth it, but of the 165 or so persons on Illinois' death row at the time I visited, only 3 of them were at Tamms. In other words, execution is not an alternative for 99 percent of the prisoners at Tamms. Like other cost issues, this one does not impact in a significant way on the pro and con of capital punishment.

Instead, the ultimate question is simply this: Does it work? At Tamms, they seem to have succeeded, not merely with Brisbon but with other inmates. In 2001, among a population of the most violence-prone prisoners in Illinois, there was a total of fifty-two assaults on staff, almost all of them throwing food or excrement at guards. And of course Tamms's existence has an immeasurable effect on behavior at other institutions, since it poses a threat, even for a lifer, that there is another form of tangible punishment for serious misconduct.

The Warden at Tamms when I visited, George Welborn, is tall and lean, with a full head of graying hair, a mustache, and dark, thoughtful eyes. He speaks with the twang of southern Illinois. Welborn, who was instrumental in planning the facility, struck me throughout as a person of intelligence and decency who believes very much in the ultimate mission of corrections, which is to protect the rest of us from the inmates and the inmates from themselves. We talked about many things in the course of the day, but before we left I asked him the sixty-four-dollar question.

“Do you realistically believe, George,” I said, “that you can keep Henry from killing anyone again?”

George Welborn is under no illusions about Brisbon's character. He was Assistant Warden at Stateville in 1979 when Henry had a critical role in an inmate uprising in which a number of guards were taken hostage, and as a result Welborn testified against Brisbon in the proceedings that led to his death sentence. George took his time with my question, before guardedly answering yes.

“Henry is a special case,” he said when we discussed Brisbon again by phone, several weeks later. “I would be foolish to say I can guarantee he won't kill anyone again. I can imagine situations, God forbid…But here the chances are minimized. It's not nearly as likely as anywhere else.” Welborn said he felt confident that they could keep Brisbon from fashioning homemade weapons, as Henry has done in all the other penitentiaries in which he's been held. And the Warden also believed that the design of the facility and the technology available gave the Tamms staff the means to subdue Brisbon even in the event of the unforeseen. But still, George said. Still with Henry, no one could make guarantees.

O
N APRIL
15, 2002, at a crowded news conference, the members of the Commission publicly presented our report to Governor Ryan. Minutes beforehand, we had met privately with him. Paul Simon stood and praised George Ryan for his courage in declaring the moratorium. The Governor looked at Simon a moment.

“What else was I supposed to do?” he asked in his usual direct fashion, as if it had never occurred to him that he could, like so many other contemporary politicians, dismiss or ignore the errors of the capital system.

The report we handed the Governor contained eighty-five recommendations for reform. Roughly 90 percent were made unanimously. Although some members felt our most sweeping proposals went too far, we had reached a broad consensus on several points.

First, although the Capital Litigation Trust Fund and a series of rule changes implemented by the Illinois Supreme Court for death cases represented significant progress on a number of fronts, we all agreed that reform of the capital process remained essential along the line. None of the institutional players—investigators, prosecutors, defense lawyers, or judges—were functioning as well as they could. Second, we were united in believing that the death penalty had been imposed too often in Illinois. Even at a rate of one case in fifty, too many of the wrong cases had reached death row. Third, we were uniform on the need for better funding. To state it simply, if the citizens of Illinois want a system of capital punishment, they have to be willing to pay for it. Better training for police, lawyers, and judges, better defenses, better data collection—reforms we regarded as indispensable—all require more money.

Principal among the changes we urged were those aimed at lowering the risks of convicting the innocent. In response to the number of dubious confessions that appeared in the cases of the thirteen exonerated defendants, we recommended that all station house interrogations of suspects in potential capital cases be videotaped throughout. We also proposed altering lineup procedures to provide for more reliable eyewitness identifications. We urged that courts conduct pretrial hearings to determine the reliability of jailhouse informants, who often surfaced in the thirteen cases, testifying to supposed confessions in exchange for lightened sentences. To provide some minimal supervision of jury fact-finding, the Commission proposed that a death sentence not be imposed without the concurrence of the trial judge, who has heard all the same evidence as the jurors. We also suggested banning the death penalty when it is based solely on the uncorroborated testimony of a lone eyewitness or a single accomplice.

In order to lessen the seeming randomness with which some defendants end up on death row, we proposed that the twenty different eligibility criteria for capital punishment in Illinois be trimmed to five: multiple murders, murder of a cop or firefighter, murder in a prison, murder aimed at hindering the justice system, and murder involving torture. One could argue in perpetuity about which classes of murder should or should not be included, but we were unanimous that eligibility factors needed to be reduced. The list approved by a Commission majority reiterated to a great extent the original statute passed in 1977, with one major exception: felony-murder, which was the avenue that brought Chris Thomas and a number of other less worthy cases to death row, would be crossed off the list. In addition, we urged creation of a statewide oversight body, composed principally of prosecutors, to attempt to bring more uniformity to death penalty elections, so that Illinois law would be interpreted similarly in all localities, and so that decisions of individual State's Attorneys to seek execution would be subjected to limited peer review.

Finally, to ensure that the capital system is something other than an endless maze for survivors, we recommended guaranteed sentences of natural life when death is not imposed in eligible cases. In addition, we outlined reforms aimed at expediting the post-conviction and clemency processes.

Our recommendations were greeted respectfully, although hardly with universal acclaim. The major newspapers endorsed most of what we had proposed, as did the state bar association. The state prosecutors' organization, on the other hand, embraced many less far-reaching items, but dug in its heels on more fundamental reforms such as videotaping interrogations or creating a statewide review commission. Nonetheless, by appearances, there seemed to be substantial momentum for reform. All the major players—the prosecutors, the papers, even the two candidates vying to succeed Governor Ryan—supported significant changes in the capital system.

By the end of the year, none had been enacted. This was owing in part to political wrangling, but much more to the chronic timidity of politicians in taking positions that can later be labeled soft on crime. The Chair of the Illinois Senate Judiciary Committee, Kirk Dillard, eventually sponsored a legislative package produced by the Governor's staff. But the day our recommendations were issued, Dillard predicted a quick death for one of our central proposals—to reduce the number of factors for death eligibility—saying it might be “headed straight for the trash bin” because it ran contrary to the preferred political posture of legislators of both parties to expand, rather than reduce, the scope of criminal laws.

Dillard's crystal ball proved accurate. In June, I testified before a subcommittee of the Illinois Senate Judiciary Committee that was considering that proposal. Looking at his colleagues, Senator John Cullerton of Chicago pointed out to me that each of them had already run for higher office. Curbing the death penalty, he said, would give potent ammunition to future political opponents. I tried to invoke the example of Governor Ryan's courage, but the fact that the Governor didn't have enough support to run for reelection hardly helped my case. Cullerton, like Dillard, was merely brave enough to state the truth. In December, despite the Commission's recommendation to reduce the number of death eligibility factors, the Illinois General Assembly overrode Governor Ryan's veto and added a twenty-first factor for murder in the course of terrorism.

Nonetheless, the legislature's failure to act on reform only deepened Governor Ryan's predicament. In March, at a conference on the death penalty in Oregon, Ryan had remarked that he might consider commuting all death sentences in Illinois. In the wake of the Commission's report, lawyers for all but a few of the inmates on death row used our recommendations as the basis to petition the Governor to exercise his constitutional clemency powers to reduce their sentences. Throughout the fall, victims and prosecutors appeared in public hearings before the Prisoner Review Board, which considers clemency requests in the first instance. The survivors relived the gruesome facts of many of these crimes and the anguish they'd experienced, gaining widespread and sympathetic coverage. Death penalty opponents responded with a number of mediagenic events of their own, including importing stars like Richard Dreyfuss and Danny Glover for a performance of
The Exonerated
, a play telling the true stories of a number of the wrongfully convicted, before an audience that included Governor Ryan.

In dealing with the clemency issue, the Governor received no help or cover from anyone else. No one—not the legislature, the prosecutors, the candidates, or even the Commission on which I served—offered George Ryan any alternatives. He had either to accept the results of a system everyone agreed needed to be fixed or to act by himself. The latter course was not especially appealing, because as the year moved to a close, legal proceedings began in federal court in the criminal racketeering case against Scott Fawell, George Ryan's former chief of staff in the Secretary of State's Office, and against the Governor's campaign fund. In its pretrial filings, the U.S. Attorney's Office made clear that there would be testimony that the Governor might have had some role in unsavory doings. For Ryan, facing the increasing prospect that he would be in front of a jury himself, locking arms with the most unpopular minority group imaginable—convicted first-degree murderers—was not an appealing course.

But the Governor had been emphatic, especially once the Commission report detailed the long-running problems in Illinois' capital system, that he would address the cases that system had produced. Cynics claimed that in declaring the moratorium or reviewing the death row clemency petitions, Ryan was attempting to create a legacy that could compete in history books with the ignominy of the criminal conviction they saw as forthcoming. But this view of Ryan offers no explanation of other principled acts he took in this area, ones garnering him no special attention. For example, Governor Ryan twice vetoed bills that would have added new eligibility factors to the Illinois death penalty, because he regarded the statute as overly broad already.

I have no special insight into what drove George Ryan's decisions. If the government's five-year investigation of Ryan had any influence on his views about clemency, I suspect it was by providing a firsthand experience of how unfettered prosecutorial power essentially is. In my practice, I've seen federal grand jury investigations turn law-and-order conservatives into dues-paying members of the ACLU. It's even conceivable that George Ryan wanted to do the right thing as Governor because he felt he'd done wrong things in the past. Certainly I think the Governor's deep religious beliefs, which he refuses to wear on his sleeve, had a place here. Whatever the motives, though, George Ryan's refusal to duck the clemency issue despite its perils to him personally was inspiring to me, as he often was.

Initially, the Governor had spoken about a blanket clemency for all on death row. When the public hearings began, he had back-pedaled, promising the victim families he would evaluate matters case by case. After seeing
The Exonerated
, he again began to wonder aloud about clemency for all. His vacillation infuriated many observers, but I had no trouble understanding why Ryan was wrestling so fitfully with the issue.

As the time for decision drew near, reporters and others asked my opinion about what the Governor should do. I had no comment for the record, but privately I was against blanket clemency. I favored reducing sentences to life without parole in the many cases infected by the problems outlined in the Commission report. My approach would have commuted, for example, those who had been death—sentenced for felony-murder, or whose convictions rested on jailhouse snitch or accomplice testimony, or whose confessions were not well corroborated. I would have made lifers out of most, but not all, on death row, hoping to show some deference to the popular will in favor of capital punishment. I feared that a blanket commutation might inspire a powerful backlash that would scuttle all hope for reform. As an attorney, I also worried that the reliability of the law as an institution could be brought into question when the work of many years by police, prosecutors, judges, and juries—as well as the implied promise to victims' families—was overturned because of the beliefs of a single individual, no matter how well intentioned.

On the Friday before he left office, January 10, 2003, Governor Ryan pardoned four men on death row on grounds of innocence. Their cases had all come out of Chicago's Area Two Violent Crimes station house in the 1980s, where evidence introduced in a police disciplinary hearing and an ensuing federal civil rights trial had been found to show that the commander, Jon Burge, had approved extracting confessions from suspects through systematic torture—electric shock to the genitals, placing typewriter covers over defendants' heads to deprive them of oxygen, burnings, beatings, forced games of Russian roulette, and hanging suspects from handcuffs. In all four pardoned cases, the principal evidence against the defendant was a confession, which each man maintained Area Two officers had used torture to obtain. Aaron Patterson, a gang leader with a history of serious violence, had contended, since his first court appearance, that he had confessed only after twenty-five hours of physical abuse that included beatings and placing a plastic bag over his face. At one point, he said he had found a paper clip, and on a bench where he'd briefly been left alone, etched a dated message reading, “I lied about murders / Police threatened me with / violence, slapped and / suffocated me with plastic.” The words were later found—and photographed—by an investigator from the Public Defender's Office.

The Governor's pardons brought to seventeen the total number of those sentenced to death in Illinois and later exonerated. But that still left the question of what to do with all the others on death row. After favoring broad but partial clemency, I'd gradually come to recognize the problems with that approach, especially as I began considering how it could be applied in given cases. Deciding on a reasoned basis who would live and who would die was, as ever, virtually impossible.

Surely, if there was a case to execute anyone, Henry Brisbon, the inmate I'd visited at Tamms, who is probably the most dangerous man in the Illinois prison system, would seem to stand at the top of the list. Yet in the days since Brisbon was first sentenced to death for stabbing an inmate, two prisoners who testified against him, the only eyewitnesses who'd seen Brisbon approach or assault the victim, had both recanted, providing affidavits stating that they lied in response to threats and promises from prosecutors. True, they are convicts, who might have many motives to change their stories—but the state had been willing to take their word at trial, even though both had initially claimed to know nothing about the murder. There was other evidence against Brisbon: his fingerprint was found beneath the tape on the handle of the knife that was probably the murder weapon, leaving little doubt that he was its manufacturer. Given this, I have no question that the evidence against Brisbon supported his conviction. But no one can possibly rest easy with an execution where the only eyewitnesses are jailhouse snitches whose stories have changed often and who now say prosecutors got the wrong man.