The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

The Constitutionality of the Death Penalty The Illinois Supreme Court’s Decision in People v. Bull
 A. Inevitable Execution of Innocent Persons

Defendant first claims that the Illinois death penalty statute is unconstitutional because of "the inevitability that innocent persons will be wrongly convicted of capital crimes and executed." As examples, defendant points to several cases in which those defendants have been exonerated and released from death row after they had been convicted of capital crimes and sentenced to death. Defendant argues that the irreversibility of the death penalty "makes the inevitability of error in the imposition of the death penalty constitutionally unacceptable."

The State’s sole response is a description of the many meaningful procedural safeguards that a criminal defendant enjoys throughout the various stages of the judicial process, including trial, post-trial, direct appellate review, post-conviction and federal habeas corpus review, and executive clemency. However, defendant expressly argues:

"No amount of procedural due process can prevent all of the errors that can result in such miscarriages of justice. Perjury, mistaken identifications, errors in forensic testing, racial bias, and countless other sources of factual error will remain, despite the right to counsel, the confrontation clause, the right to an impartial jury, or the right of appeal and habeas corpus." (Emphasis added.)

An important goal of the criminal justice process is the protection of the innocent accused against an erroneous conviction. Many would argue that it is the goal of the highest priority. 1 W. LaFave & J. Israel, Criminal Procedure—1.6(c),at 44 (1984). The interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling. The many safeguards that the law has developed over the years to diminish the risk of erroneous conviction stand as a testament to this concern. Ake v. Oklahoma, 470 U.S. 68, 78, 84 L. Ed. 2d 53, 63, 105 S. Ct. 1087, 1093 (1985).

Whatever the number of safeguards in the system, the American criminal justice process is necessarily imperfect because it is operated by people and people are imperfect. Nonetheless, it remains one of the best in the world, and the only system we have. The United States Supreme Court has held that "the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it."(Emphasis added.) Gregg v. Georgia, 428 U.S. 153, 187, 49 L. Ed. 2d 859, 882-83, 96 S. Ct. 2909, 2932 (1976). We view this holding as including the determination of guilt. We note that other courts have rejected this exact argument. See, e.g., United States v. Bradley, 880 F. Supp. 271, 291-92 (M.D. Pa. 1994); United States v. Pretlow, 779 F. Supp. 758, 777-78 (D. N.J. 1991) (both citing Gregg); see also State v. Stenson, 132 Wash. 2d 668, 758 n.24, 940 P.2d 1239, 1284 n.24 (1997) (court acknowledged issue, but declined to suspend operation of the death penalty absent finding of constitutional deficiency).

One might be tempted to accept defendant’s argument that the Illinois death penalty statute is unconstitutional because innocent persons will inevitably be convicted of capital crimes, sentenced to death, and executed. However, it must be remembered that defendant’s argument does not address the issue of procedural deficiency in the criminal justice system. We stress that defendant argues that "[n]o amount of procedural due process can prevent all of the errors that can result in" an innocent person being convicted of a capital crime. (Emphasis added.) Thus, defendant’s strident protest is against the concept of the Anglo-American criminal trial itself as the means of determining the guilt or innocence of an accused.

This inexplicable attack on the American criminal trial as the means of determining guilt requires a discussion of fundamental principles.

"The system of criminal justice America uses to deal with those crimes it cannot prevent and those criminals it cannot deter is not a monolithic, or even a consistent system. It was not designed or built in one piece at one time. Its philosophic core is that a person may be punished by the Government if, and only if, it has been proved by an impartial and deliberate process that he has violated a specific law. Around that core layer upon layer of institutions and procedures, some inspired by principle and some by expediency, have accumulated. *** The entire system represents an adaptation of the English common law to America’s peculiar structure of government ***." President’s Comm’n on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 7 (1967).

In this country and in this state, a defendant has a constitutional right to have the charges brought against him proven beyond a reasonable doubt. The forum for such a determination is a trial. The guilt or innocence determination in a criminal trial is a "‘decisive and portentous event,’ ‘Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens.’" Herrera v. Collins, 506 U.S. 390, 401, 122 L. Ed. 2d 203, 217, 113 S Ct. 853, 861 (1993), quoting Wainwright v. Sykes, 433 U.S. 72, 90, 53 L. Ed. 2d 594, 610, 97 S. Ct. 2497, 2508 (1977).

The purpose of a trial is to have witnesses and evidence against the defendant put before the trier of fact so they can be tested by way of cross-examination, the belief being that the truth will become apparent as a result of this process. At the trial, the defendant has an opportunity to call witnesses on his own behalf and to testify should the defendant choose to do so. 6 L. Pieczynski, Illinois Practice —26.1, at 212 (1989). Additional features of an American criminal trial include the presumption of innocence, the right of the defendant not to testify on his own behalf, the right to the effecitve assistance of counsel, and the exclusion of evidence illegally obtained by the state. 1 W. LaFave & J. Israel,—1.4, at 28 (1984); see generally 1 W. LaFave & J. Israel, Criminal Procedure —1.6 (1984); 2 W. LaFave & J. Israel, Criminal Procedure ——11.1 through 11.10 (1984).

A criminal defendant, whether guilty or innocent , is entitles to a fair, orderly, and impartial trial, as described above, conducted according to law. People v. Kalpak, 10 Ill. 2d 411, 428 (1957). This right is protected by the United States and Illinois Constitutions. U.S. Const., amend. XIV (due process clause); Ill. Const. 1970, art. I. —2; see People v. Hoffman, 379 Ill. 318, 322 (1942); People v. Garrett, 26 Ill. App. 3d 786, 801 (1975). "It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible."Herrera, 506 U.S. at 415, 122 L. Ed. 2d at 226, 113 S. Ct. at 868. This court has observed that trials cannot be conducted without error, and that perfection in trial procedure is virtually unattainable. People v. Agnello, 22 Ill. 2d 352, 363 (1961). Thus, it is fundamental that a defendant in a criminal case is entitled to a fair trial, not a perfect one. People v. Griffin, 178 Ill. 2d 65, 90-91 (1997); People v. Ruiz, 94 Ill. 2d 245, 260 (1982), citing Lutwak v. United States, 344 U.S. 604, 619-20, 97 L. Ed. 593, 605, 73 S Ct. 481, 490 (1952); accord 23A C.J.S. Criminal Law —1145, at 5 (1989).

Defendant’s complaint is simply that the American criminal trial, as the means of determining the guilt or innocence of an accused, is not perfect. However, as imperfect as he describes the system, defendant does not suggest a substitute for this system as the means of determining guilt or innocence. Indeed, in a sense, defendant’s protest is unanswerable. Have mistakes been made? Will mistakes be made? Certainly.

"The American criminal justice system regards the trial as the best method for determining a defendant’s guilt. Yet a trial is not a scientific process. Instead of calm, consistent evaluations of evidence, trials involve unpredictable human perceptions and reactions*** [T]rails are very human processes, and the truth is not guaranteed to emerge in the final verdict. "G. Cole & C. Smith, The American System of Criminal Justice 372-73 (8th ed. 1998).

However, the American criminal justice system, like perhaps no other system in the world, provides the maximum protection necessary to guard against mistakes being made.

"What most significantly distinguishes the [criminal justice] system of one country from that of another is the extent and the form of the protections it offers individuals in the process of determining guilt and imposing punishment. Our system of justice deliberately sacrifices much in efficiency and even in effectiveness in order to ***protect the individual. Sometimes it may seem too much." President’s Comm’n on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 7 (1967).

We note that the partial dissent asserts that "legislatures and the courts appear to have abandoned any genuine concern with insuring the fairness and reliability of the system. "Slip op. at 36 (Harrison J., concurring in part and dissenting in part). However, both this court and the General Assembly have included additional safeguards with the many protections that a criminal defendant enjoys in the continuing process of the criminal justice system.

Based on the Illinois Constitution, this court has recognized that a defendant’s right against self-incrimination is violated where the policy deny an attorney, retained for the defendant without her knowledge, physical access to the defendant during the interrogation and where the police do not inform the defendant that the attorney is seeking to consult with her at the police station. People v. McCauley, 163 Ill. 2d 414 (1994). Also based on the Illinois Constitution, this court has recognized that a free standing claim of newly discovered evidence of innocence raises a constitutional question properly considered in a post-conviction petition. People v. Washington, 171 Ill. 2d 475 (1996). Also, the legislature has recently enacted a law to allow prisoners to obtain previously unavailable DNA testing of relevant pieces of physical evidence. 725 ILCS 5/116-3 (West Supp. 1997).

This protection reflects the goal of decreasing the chance of convicting an innocent person even at the price of increasing the chance that a guilty person may escape conviction. True, the basic purpose of a trial is to determine the truth. Nevertheless, it is a fundamental value determination of the American criminal justice system that it is far worse to convict an innocent person than to let a guilty person go free. 1 W. LaFave & J. Israel, Criminal Procedure—1.6(c), at 45 (1984). We note that scholars have criticized one of the sources defendant has cited (H. Bedau & M. Radelet, Miscarriages of Justice in Potentially Capital Crimes, 40 Stan. L. Rev. 21 (1987) for the proposition that numerous innocent persons have been erroneously convicted of capital crimes. Herrera, 506 U.S. at 415 n. 15, 122 L. Ed. 2d at 266 n.15, 113 S. Ct. at 868 n.15, citing S. Markman & P.Cassell, Comment, Protecting the Innocent: A Response to the

Cassell, Comment, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988).

Indeed, People v. Burrows, 172 Ill. 2d 169 (1996), and People v. Gauger, No. 2-94-1199 (1996) (unpublished order under Supreme Court Rule 23), referred to in the partial dissent (slip op. at 36 (Harrison, J., concurring in part and dissenting in part)), exemplify how careful the Arnerican criminal justice system is in imposing the death penalty. In Burrows, the defendant was indicted for murder and armed robbery. His first trial resulted in a hung jury. He was retried, convicted as charged, and sentenced to death. On direct review, this court upheld defendant’s convictions and death sentence. People v Burrows. 148 Ill. 2d 196 (1992). Subsequent to defendant’s retrial, his two accomplices recanted their incriminating testimony. At the close of a hearing for post-conviction and post-judgment relief, the circuit court vacated defendant’s convictions and death sentence and ordered a new trial. This court affirmed. Burrows, 172 Ill. 2d 169 (1996). Subsequent to this court’s affirmance, the charges against defendant were dropped.

In Gauger, the defendant was convicted of two counts of murder and sentenced to death. The circuit court subsequently vacated the death penalty and sentenced defendant to two terms of natural life imprisonment. The appellate court found that defendant’s inculpatory statements were the fruits of an illegal arrest and, consequently, that the trial court erred by denying defendant’s motion to suppress. The appellate court reversed defendant’s conviction and remanded the cause for a new trial. People v. Gauger, No. 2-94-1199 (1996) (unpublished order under Supreme Court Rule 23). The prosecutor dropped the charges. In these two cases, the criminal justice system, with its many procedural protections, operated as it should to ensure that only truly guilty defendants are convicted.

Since defendant’s unanswerable protest is against the inherent fallibility of the Arnerican criminal trial itself, then his position is reduced to a mere attack on the death penalty per se: he feels that it is wrong and that it should not be imposed. He notes that other "inferior" criminal justice systems have abolished capital punishment. However, at least since Gregg, 428 U.S. at 187, 49 L. Ed. 2d at 882-83, 96 S. Ct. at 2932, the United States Supreme Court has repeatedly rejected the contention "that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Jurek v. Texas, 428 U.S. 262, 268, 49 L. Ed. 2d 929, 936, 96 S. Ct. 2950, 2954 (1976). The Court has concluded: "It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed." Coker v. Georgia, 433 U.S. 584, 591, 53 L. Ed. 2d 982, 989, 97 S. Ct. 2861, 2865-66 (1977) (plurality).

Thus, it is clear that defendant’s personal views regarding the propriety of capital punishment are not reflected in eighth amendment jurisprudence.

The partial dissent attempts to shift attention from the present case to past cases which do not speak to this issue. In People v. Kidd, 175 Ill. 2d 1 (1996), one issue was whether the defendant was entitled to a fitness hearing because he allegedly was taking psychotropic drugs. Six members of this court were of the opinion that he was not so entitled. Kidd, 175 Ill. 2d at 17-20. In In re Marriage ofSkahan, 178 Ill. 2d 577, this court, pursuant to its supervisory authority, ordered the appellate court to consider the appeal on its merits. This court’s supervisory authority is a constitutional grant of power that is undefined, not limited by any specific rules, and is bounded only by the exigencies that call for its exercise. McDunn v. Williams, 156 Ill. 2d 288, 300-02 (1993). We also note that a dissenting opinion "should be a challenge to the decision or to the reasoning supporting the decision; it seeks the same objective as the majority opinion-good legal doctrine correctly applied."B. Witkin, Manual on Appellate Court Opinions §122, at 233(1977). "A dissent should be impassive in tone rather than angry." R. Aldisert, Opinion Writing §11 .5, at 170 (1990).

One must be careful not to elevate personal beliefs above thoughtful constitutional analysis. The question of whether it is enlightened to assess the ultimate penalty against those who commit the most heinous of crimes is simply not subject to our review.

Judicial restraint and deference to legislative judgments are required regarding capital punishment. As judges, we may not act as we might as legislators. In a democracy, the legislature, not a court, is established to respond to the will and moral values of the people. Indeed, the selection of punishments is peculiarly a question of legislative policy. Therefore, in determining the constitutionality of a punishment selected by a democratically elected legislature, a court presumes that the punishment is valid. A court may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. Gregg, 428 U.S. at 174-76, 49 L. Ed. 2d at 875-76, 96 S. Ct. at 2925-26. This court has likewise recognized:

"that it is the legislature which has been empowered to declare and define conduct constituting a crime and to determine the nature and extent of punishment for it. (Citations.) The legislature, institutionally is more aware than the courts of the evils confronting our society and, therefore, is more capable of gauging the seriousness of various offenses." People v. Steppan, 105 Ill. 2d 310, 319 (1985).

We note that although 12 states and the District of Columbia do not have a death penalty for any offense, 38 states and the federal government have selected the death penalty for the most abominable crimes. United States Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996 556 (1997); see D. Denno, Getting toDeath: Are Executions Constitutional? , 82 Iowa L. Rev. 319, 439-64 (1997).

The issue is not whether any justice of this court personally favors or opposes capital punishment. Rather, the issue solely is whether the federal and state constitutions prohibit the legislature from mandating capital punishment for certain types of first degree murder. Clearly, the legislature is not prohibited in this regard, notwithstanding any personal views which we may have on the subject of capital punishment. See District Attorney v. Watson, 381 Mass. 648, 701, 411 N.E.2d 1274, 1303 (1980) (Quirico, J., dissenting). This is emphatically a question for the legislature. Defendant’s protest, accepted by the partial dissent, is properly addressed to the General Assembly and not to this court.

B. Meaningful Consideration ofMitigationl

Defendant lastly claims that the Illinois death penalty statute is unconstitutional because it places a burden of proof on the defendant that precludes meaningful consideration of mitigating circumstances. This court has repeatedly rejected this argument. See, e.g., People v. Munson, 171 Ill. 2d 158, 203-05 (1996); People v. Page, 155 Ill. 2d 232, 283 (1993); Hampton, 149 Ill. 2d at 116-17. We see no reason to reach a different result here.


For the foregoing reasons, the judgment of the circuit court of Fulton County is affirmed. The clerk of this court is directed to enter an order setting Tuesday, March 16, 1999, as the date on which the sentence of death entered in the circuit court is to be imposed. The defendant shall be executed in the manner provided by law. 725 ILCS 5/119-5 (West 1992). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, the warden of Stateville Correctional Center, and the warden of the institution where defendant is now confined.

Judgment affirmed

Justice Miller, specially concurring:

I concur in the judgment of the court. and I join the majority opinion. I write separately to add several observations about the partial dissent filed in this case.

As Justice Harrison himself once remarked, in dissent, "If the law commands a certain result, that is the result this court should reach. We do not also need to find personal fault. with the parties or establish some shortcoming on the part of their attorneys in order to justify our position." Zimmerman v. Buchheit of Sparta. Inc., 164 Ill. 2d 29, 51 (1994) (Harrison, J., dissenting). Contrary to the admonition in Zimmerman, however. Justice Harrison frequently chooses, as he does in this case, to impugn the integrity of other members of the court and to impute improper motives to those with whom he disagrees. Thus, at various times, he has characterized majorities of this court as enemies of labor unions (City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 211-12 (1998) (Harrison. J., dissenting); American Federation ofState. County & Municipal Emplovees v. Department ofCentral Management Services, 173 Ill. 2d 299, 342 (1996) (Harrison, J., dissenting)), as foes of children (American Federation of State, County & Municipal Emplo yees, 173 Ill. 2d at 337 (Harrison. J., dissenting); Barnett v. Zion Park District, 171 Ill. 2d 378, 393-94 (1996) (Harrison, J., dissenting); Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 128 (1995) (Harrison, J., dissenting)), as biased against plaintiffs in civil actions (Burrell v. Southern Truss, 176 III. 2d 171, 178 (1997) (Harrison. J., dissenting)), and even as vigilantes (People v. Kidd. 175 Ill. 2d 1, 60 (1996) (Harrison, J., dissentin)).

Baseless and unfounded imputations of improper. motives to those members of the court who support a majority opinion are unjustified and demean the court. Judges often disagree about what result the law requires in a particular case. The existence of these disagreements, and the ability of our legal system to thrive on them, are virtues of the judicial process and of our system of government. The terms of the debate, however, must be framed by civility and respect, and not by suspicion and untruths. When rancor eclipses reason, the quality of the debate is diminished, the bonds of collegiality are strained, and the judicial process is demeaned. We cannot prescribe civility to members of the bar when our own opinions are disfigured by comments as offensive as those we have admonished lawyers for making. See, e.g., Kidd, 175 Ill. 2d at 53-54. We should receive no less from our colleagues than we expect from those who appear in our courts.

Chief Justice Freeman and Justice McMorrow join in this special concurrence.

Justice Bilandic, also specially concurring:

I join in the majority opinion. I also agree with the observation of the dissent that "(m)y colleagues are decent and good people." I hasten to add that my colleagues in the majority would return that compliment.

In my view, the partial dissent by my learned collleague is a plea for abolition of the death penalty. This argument should be directed to the legislative branch, which has the power to modify or repeal a statute which it enacted.

We must not overlook the fact that in addition to safeguards provided by the judicial branch, a defendant in a capital case has the additional protection of the executive branch (Ill. Const. 1970, art. V, §12). On January 16, 1996, executive clemency was granted to Guinevere A. Garcia.

Prior to becoming a judge, Benjamin N. Cardozo argued against the death penalty because, " ‘To me it is far from clear that weak-minded creatures would be more deterred by it than by some other form of punishment. Beyond and above all this, there is the ever-present chance of error. The risk is too great to be incurred by fallible mortals-a class large enough unfortunately to include judges, high and low.’ ",. A. Kaufman, Cardozo 395 (1998) (quoting Benjamin N. Cardozo). However, when he became a judge and had responsibility, "[h]e applied New York’s death penalty statutes and voted to affirm numerous death sentences." A. Kaufman, Cardozo 396 (1998).

The dissent eloquently expresses a personal conviction but does not address the sound and authoritative opinion of the majority.

Justice Nickels joins in this special concurrence.

Justice Heiple, also specially concurring:

I take issue with but one portion of the majority opinion. The majority holds that in interpreting the search and seizure provision in the Illinois Constitution (Ill. Const. 1970, art. I, §6), this court "looks to the United States Supreme Court’s interpretation of the fourth amendment" to the United States Constitution. Slip op. at 10. In light of this court’s recent opinion in People v. Krneger, 175 Ill. 2d 60 (1996),I believe this statement to be both unfortunate and incorrect.

In Krueger, we noted that this court "has the authority to interpret provisions of our state constitution more broadly than the United States Supreme Court interprets similar provisions of the federal constitution.". Krueger, 175 Ill. 2d at 74. We then proceeded to analyze whether the search and seizure provision of the Illinois Constitution is subject to an exception for illegal searches conducted by law enforcement authorities in "good faith." Concluding that such an exception would fail to adequately protect the right of Illinois citizens to be free from unreasonable governmental intrusion, we explicitly rejected, as a matter of state constitutional law, the United States Supreme Court’s adoption of a good-faith exception to the federal constitution. Krueger, 175 Ill. 2d at 75. Our decision in Krueger thus firmly establishes the principle that article I, section 6, of the Illinois Constitution is to be interpreted in a manner independent of United States Supreme Court jurisprudence.

Nevertheless, because I believe the search conducted in the instant case violated neither the United States Constitution nor the Illinois Constitution, I concur in the court’s judgment.

Justice Harrison, concurring in part and dissenting in part:

My colleagues turn aside defendant’s constitutional challenge with the observation that the American criminal justice system is one of the best in the world. The sentiment has a pleasant and reassuring tone, but it overlooks an important fact. The supposedly "inferior" justice systems of other nations are abandoning capital punishment at an unprecedented rate. Hood, The Death Penalty: The USA in World Perspective, 6 J.Transnat’l L & Pol’y 517, . 519 (1997). With the exception of Japan, the United States is now the only well-established democracy that has not abolished the death penalty expressly or in practice. Wyman, Vengeance is Whose? The Death Penalty and Cultural Relativism in International Law, 6 J. Transnat’l L. & Pol’y 543, 544 (1997). Western Europe is free of capital punishment (6 J. Transnat’l L. & Pol’y at 525), as are most countries in our hemisphere (6 J. Transnat’l L. & Pol’y at 570). Even in the United States, 12 states and the District of Columbia presently have no death penalty for any offense, no matter how severe. A. Phillips, Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements In Capital Sentencing, 35 Am. Crim. L. Rev. 93, 99 n.54 (1997)

I do not know enough about international law to judge whether the nations who have abolished capital punishment are, in fact, less protective of individual human rights than the courts in the United States. I do know, however, that the abolitionist nations have at least insured that no one will pay the ultimate price for their fallibility. That is decidedly not the case in those United States jurisdictions retaining the death penalty, including Illinois.

Despite the courts’ efforts to fashion a death penalty scheme that is just, fair, and reliab1e, the system is not working. Innocent people are being sentenced to death. Examples of innocent people who were arrested, tried and convicted of capital offenses are numerous and well documented. See Staff of House Subcomm. on Civil & Constitutional Rights, Committee on the Judiciary, 103d Cong., 2d Sess. Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions (1994); H. Bedau & M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21 (1987).

In Illinois, the best-known case of an individual wrongfully convicted of capital murder and sentenced to deatb is that of Rolando Cruz, who was actually convicted and given the death sentence twice before being found innocent in 1995. Cruz’s codefendant, Alejandro Hemandez, had the charges against him dropped after being convicted of capital murder twice and having the death sentence imposed once. In 1996, Verneal Jimerson and Dennis Williams were exonerated after being convicted and sentenced to death for the 1978 murders of Larry Lionberg and Carol Schmal. The same year, Gary Gauger, who had been placed on Death Row for the murder of his parents, was set free after his conviction was reversed based on, inter alia, insufficient evidence. Also in 1996, Carl Lawson was acquitted on his second retrial after having been sentenced to death for the murder of an eight-year-old child. In 1994, Joseph Burrows was released after spending five years on Death Row for the murder of William Dulin, a crime he did not commit. Finally, in 1987, Perry Cobb and Darby Williams (Tillis) were eventually acquitted after having previously been convicted and sentenced to death for the 1977 double murder of Melvin Kanter and Charles Guccion.

Some would suggest that the freedom now enjoyed by these nine men demonstrates that our criminal justice system is working effectively with adequate safeguards. If there had been only one or two wrongful death penalty cases, I might be persuaded to accept that view. When there have been so many mistakes in such a short span of time, however,the only conclusion I can draw is that the system does not work as the Constitution requires it to.

If these men dodged the executioner, it was only because of luck and the dedication of the attorneys, reporters, family members and volunteers who labored to win their release. They survived despite the criminal justice system, not because of it. The truth is that left to the devices of the court system, they would probably have all ended up dead at the hands of the state for crimes they did not commit. One must wonder how many others have not been so fortunate.

The prognosis for wrongly accused defendants facing capital charges is not improving. To the contrary, legislatures and the courts appear to have abandoned any genuine concern with insuring the fairness and reliability of the system. Achieving "fina1ity" in death cases, and doing so as expeditiously as possible, have become the dominant goals in death penalty jurisprudence.

Not so long ago, the federal courts provided meaningful oversight to the way in which state courts exercised their authority to put people to death. That oversight has all but disappeared. Callins v. Collins, 510 U.S. 1141, 1158-59, 127 L. Ed. 2d 435, 448-49, 114 S. Ct. 1127, 1138 (1994) (Blackmun, J., dissenting). For all practical purposes, the states have been left to their own devices. Based on recent experienice in Illinois, the consequences are apt to be grave.

The General Assembly has drastically shortened the period in which post-conviction relief can be sought, thereby reducing the time in which exonerating evidence may be discovered. See 725 ILCS 5/122-1 (West 1996). The number of death cases is rising, the pace of executions is quickening, and our court, which is responsible for reviewing all cases in which the death penalty is imposed, has demonstrated an unfortunate willingness to disregard the law in order to affirm a sentence of death. See People v. Kidd, 175 Ill. 2d 1, 59-60 (1996) (Harrison, J., dissenting). I note, moreover, that it apparently no longer feels constrained to follow its own rules of court, even when they are jurisdictional and mandatory ( see In re Marriage of Skahan, 178 Ill. 2d 577 (1998) (Harrison, J., dissenting)).

The result, inevitably, will be that innocent persons are going to be sentenced to death and be executed in Illinois. A sentencing scheme which permits such horrific and irrevocable results cannot meet the requirements of the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) or article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, §2).

It is no answer to say that we are doing the best we can. If this is the best our state can do, we have no business sending people to their deaths. As outraged as we may feel personally over the terrible acts committed by the defendant in this case, that is no justification for perpetuating a system that violates our most basic constitutional principles.

Before any of us gets too righteous about what a despicable character defendant is, we should also stop for a moment and reflect on how easy it was to condemn an individual such as Rolando Cruz, who was ultimately determined to be innocent. This is not to suggest that the defendant in this case was not actually guilty either. My point is simply that when a system is as prone to error as ours is, we should not be making irrevocable decisions about any human life.

My colleagues are decent and good people. Just as the execution of an innocent person is inevitable, it is inevitable that one day the majority will no longer be able to deny that the Illinois death penalty scheme, as presently administered, is profoundly unjust. When that day comes, as it must, my colleagues will see what they have allowed to happen, and they will feel ashamed.

Donald Bull’s conviction should be affirmed, but his sentence of death should be vacated, and the cause should be remanded to the circuit court for imposition of a sentence other than death.

DCBA Brief