Death penalty review pragmatic

In fiery language not typically found in judicial opinions, the Illinois Supreme Court hashed out the future of that state’s death penalty in three decisions handed down Thursday. Illinois’ governor announced a moratorium Jan. 31, 2000 on carrying out death sentences, and the state’s highest court put a new set of rules into effect March 1 for trying death penalty cases. They create minimum requirements of training and experience for lawyers and judges in death penalty cases, provide extra protections for poor defendants and impose new disclosure requirements on prosecutors.

The issue now dividing Illinois justices is whether the new rules should be interpreted to mean every death penalty case tried under the old rules should be automatically thrown out. Chief Justice Moses Harrison II, a death penalty opponent, and Justice Thomas Kilbride argued in the recent cases that the old rules “were inherently unreliable” and that every appeal should be judged by the new rules.

The strident language of Harrison’s opinions has drawn the most attention. “The system for imposing capital punishment in Illinois has collapsed,” he wrote in one dissent, arguing the old rules did not provide “even a pretense of fairness or accuracy,” while other justices assailed his reasoning for presenting “the controverted testimony of certain defense experts as the official position of this court.” In another case, Harrison’s assertion that the court “found ways” to uphold convictions of men later found innocent drew a rebuke from Justice Charles Freeman, who wrote that “the Chief Justice does little more than fan the flames of sensationalism and denigrate this court in the eyes of the public.”

But while the court remains divided, public policy is best served if the majority opinion in these cases prevails. Justice Thomas Fitzgerald, writing for the court in one case, correctly argues that to follow Harrison’s view and invalidate all death penalty convictions under the old rules would require assuming that every case contained some violation of the defendant’s rights, ignoring “the multitude of cases that were tried by competent attorneys (and) adjudicated by experienced judges.” Additionally, if the court rules that every defendant’s rights were violated by the old trial rules, the state might face lawsuits from those defendants, draining its already troubled budget.

The majority reasonably proposes case-by-case review of death penalty appeals, allowing defendants to protect their rights while sparing the state and its courts the costs of having to review every death penalty conviction. Needless to say, Gov. George Ryan’s moratorium on executions should remain in effect as this appeals process goes forward, and Illinois’ Supreme Court should ensure its new rules are meticulously followed. Defendants facing the ultimate criminal sanction are entitled to the ultimate legal safeguards during their trials.