Background

Since reinstatement of the death penalty by the Supreme Court in 1976, 112 people in 25 states have been exonerated from death rows across the country. The most recent innocent person released from death row was Nicholas Yarris, exonerated by DNA evidence in Pennsylvania on December 9, 2003.  The large number of innocent people released from death rows across the country is an indication that serious problems exist with the application of the death penalty.

The first state to conduct a comprehensive study of its death penalty system was Illinois.  In January 2000, Republican Governor George Ryan imposed a temporary halt on executions after nearly presiding over the execution of an innocent man.  He ordered the creation of an independent, bipartisan commission to advise him on how to improve the death penalty system to ensure that no innocent people were convicted.  The result of the two-year study was a comprehensive report making 85 recommendations for reform.  The Illinois legislature began implementing some of those key reforms in legislation passed in 2003.  The temporary halt on executions remains in effect while further recommendations are studied.  

By studying the death penalty, state legislatures will gain a better understanding of how the death penalty is applied and steps they can take to ensure that the guilty are punished and the innocent are protected.  

Independent studies vs. commissions

There are two main kinds of death penalty studies.  An independent institution such as a university can conduct a study using scientific and academic methodology, or the legislature can form a commission that will hold public hearings and hear expert testimony.  The advantage of a research study is that it is independent and scientific.  The advantage of a government-sponsored commission is that it will have power to subpoena witnesses and hold hearings.  Also, the legislature may be more likely to act on recommendations that come from a government-sponsored commission.  If a commission is chosen, every effort must be made to establish an independent commission that is representative of diverse political perspectives and not affiliated with a particular government agency.

Factors to Include in Study Commission Legislation

Important elements to include in study commission legislation are:  

·         including members of the commission from all perspectives; 

·         identifying the scope of the study; 

·         granting the commission sufficient investigatory powers such as ability to conduct hearings, subpoena witnesses and obtain information from local and state government agencies; 

·         establishing an office to conduct the work of the commission; 

·         specifying a specific deadline; and 

·         budgeting money to pay for costs.  

Duration and Costs

Establishing a final deadline is critical to ensure that the study is completed.  Two years is usually sufficient. Ideally, the state should impose a temporary halt on executions until the study is completed, reviewed, and the recommendations are addressed.  A halt on executions does not prevent prosecutors from continuing to seek the death penalty in criminal cases.  Most states have found that they can conduct a study with a budget of around $100,000 and get additional resources from outside organizations and law firms.  

Commission Members

An effective commission will represent the breadth of interests and positions on the death penalty issue.  In most states commission members are appointed by the Governor and/or the legislature.  Members should represent balanced, bipartisan interests.   The following people should be considered:

·        the Attorney General and the State Public Defender (or other established criminal defense lawyer)

·        Representative from Murder Victims Families for Reconciliation

·        Representative from state crime victim assistance center

·        Members of the religious community

·        One Republican and Democrat from each legislative body

·        Retired judge from the highest court in the state

·        Representative from police chief's association

·        Representatives from civic organizations such as the League of Women Voters

·        Academic experts in the fields of criminal justice or capital punishment.

Scope of Study

Two useful resources for determining the scope of the study are the Illinois Governor's Commission on Capital Punishment and the American Bar Association's Moratorium Project guidelines.  The ABA protocols call for study in eight areas.  For each area, the protocols contain an introductory overview of the issues involved, a list of questions to be considered in a comprehensive review, and a list of recommendations for improving administration of the system in the particular area:

·        defense services 

·        procedural restrictions

·        clemency

·        jury instruction

·        judicial independence

·        racial discrimination

·        sentencing of juveniles 

·         sentencing of the mentally retarded or mentally ill

Potential questions for the commission include:

·        What is the reversal rate in capital cases?

·        What are the factors or characteristics that have led to the high number of reversals and exonerations in capital cases?  

·        What safeguards and improvements should be made throughout the process, including investigation, trial, judicial appeal, and executive review?  Will these safeguards and improvements ensure that the system is fair?

·        Do the standards for defense counsel and the system for appointing defense counsel in capital cases meet the standards established by the American Bar Association?

·        What are the costs of a capital vs. a non-capital case?  Does the cost of the death penalty outweigh the benefits, particularly when the jury does not hand down a death sentence or a death sentence is overturned on appeal?

·        Is the death penalty administered in a way that is racially, geographically, or socio-economically biased?  

·        Is the death penalty administered in a way that is arbitrary?

·        Are there groups such as juveniles or the mentally ill that should be protected from execution?

·        Does the interest in executing some of those guilty of murder outweigh the risk that an innocent person will be executed?

·        Is the death penalty a deterrent?

·        What legitimate purposes does the death penalty serve?  What alternatives exist that serve those purposes?

·        Is the death penalty system serving the needs of victims' family members?  Is it serving all families equally regardless of their position on the death penalty?  How can the services be improved?

·        Can the death penalty system be reformed in such a way so that an innocent person will not be executed?