Stephen L. Richards and Jennifer Bishop Jenkins: A Tale of Two States

A Tale of Two States

By Stephen L. Richards and Jennifer Bishop Jenkins
 This is a tale of two states. Let’s call them State A and State B.

 Both State A and State B have the death penalty.

 In State A, the anti-death penalty movement is strong, well-financed, and well-publicized.

 In State B, the anti-death penalty movement is initially weaker, poorer, and not so well-publicized.

In State A, an innocent man, fitted for his burial shroud, comes within hours of execution.

In State B, no innocent man ever comes close to execution.

In State A, the Governor declares a moratorium on executions in 2000, and then, three years later, issues orders of commutation which clear State A’s death row. In State B there is a moratorium, but no mass commutation.

In State A, proof emerges that murder suspects in capital cases have been beaten with flashlights, partially suffocated, and tortured with electric shocks. In State B there is no proof that murder suspects in capital cases have been tortured.

In State A, judges who have sentenced indigent defendants to death, are convicted of taking bribes to “fix” murder cases. In State B, no judges in capital cases are accused or convicted of similar acts of bribery.

In State A, sentiment against the death penalty grows so strong, that the legislature unanimously passes far-reaching reforms to address a number of serious flaws in the criminal justice system. In State B, no comparable reforms are ever enacted.

From these facts, an impartial outside observer would have predicted that the death penalty would have been abolished in State A long before it was abolished in State B.

 But that outside observer would be wrong.

 State A is, of course, Illinois. State B is, of course, New Jersey. New Jersey has just become the first state since 1965 to abolish its death penalty. Illinois, in contrast, languishes in the abolition doldrums. Since 2003, only one bill to abolish the death penalty has ever gotten out of committee, and no abolition bills have even been submitted to a chamber of the General Assembly for a vote.

 Why the difference?

In part Illinois’s abolition movement is a victim of its own (partial) success. The continuing moratorium and the memory of Governor Ryan’s mass commutation has led many in the general public to believe that the death penalty in Illinois has somehow already been abolished. In fact, there are now 13 people on Illinois’s death row – a far cry from the 162 whose sentences were commuted by Ryan, but the same as the number actually executed under Illinois’ modern death statute. The moratorium on executions which Governor Rod Blagojevich continues to impose affects no one, because no one sentenced to death has yet traveled far enough through the appeals process to be in any danger of immediate execution.

The death penalty, in Illinois, is alive.  Millions of dollars, which otherwise might pay for roads or hospitals or children’s schoolbooks, are spent prosecuting and defending death penalty cases. In Cook County alone, the prosecutors routinely seek death in scores if not hundreds of cases – few of which could reasonably be characterized as involving murders committed by the “worst of the worst.”

But the partial success of the abolition movement in Illinois has done more than quiet the death penalty controversy which once burned so brightly in the Prairie State. It has also lead many in the abolition movement to take positions and embrace causes which may prevent Illinois from following in New Jersey’s footsteps.

Many associated with abolition in Illinois, either believing that abolition of the death penalty is inevitable, or, perhaps no longer caring whether the death penalty is abolished or not, have begun to agitate against the sentence of life without parole. While New Jersey abolishes the death penalty, and no abolition bill moves forward in  Illinois, two bills to modify the life without parole sentence are now pending in the Illinois legislature. One of these bills only affects juvenile murderers, who would never have been eligible for the death penalty anyway. But the other  would take the “without parole” off of life sentences by offering inmates who had served 25 years of a life sentence an opportunity for “earned release.”

Serious consideration of such measures would gravely jeopardize the chances for Illinois abolition. In Illinois, as is the case nationally, polls show that support for the death penalty drops below 50% when natural life without parole is the alternative. Support for the death soars  higher than 60% or 70% when natural life is no longer in the picture. To pass an abolition bill, abolitionists generally need the support of Republicans and conservative Democrats.  They will also need the critical support of victim’s right groups, policemen, judges, jail guards, and prosecutors.

The key to success in New Jersey was that New Jersey, unlike Illinois, lacked a life without parole sentence. Replacing the death penalty with the life sentence proved just politically popular enough to pass.

In Illinois, we already have life without parole – mandatory for some forms of murders and discretionary for others. But the abolition of the death penalty could be – and perhaps should be – coupled with an increase in the kinds of murders which are punished with mandatory life without parole. Or, the decision to sentence a defendant to life without parole could be put into the hands of juries, which could consider not only whether the state has proved that the type of murder which the defendant committed made the defendant eligible for life, but also whether, considering the defendant’s background and other circumstances, life without parole was truly the appropriate sentence. In any case, the debate about abolition of the death penalty cannot be complete without a full and careful consideration of the only popularly acceptable alternative sentence for the “worst of the worst ” – life without parole. The current situation – a quiescent movement against the death penalty combined with a vigorous attack against life sentences – does not bode well for Illinois abolition.

 Where New Jersey leads, will Illinois follow?

 Only if Illinois abolitionists, keeping their eyes on prize, remember that, however much they may wish for a general reform or liberalization of the penal system, their immediate goal is and must be abolition. Life sentences are harsh. Under some more enlightened regime in the far future they may be eliminated. But for the present they are the only politically acceptable, practical alternative to the death penalty. And death, as the lawyers say, is different.

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