RACK ‘EM RAUNER: A RETURN TO THE DEATH PENALTY IN ILLINOIS?

The doors of death row at the Illinois Department of Corrections have been sealed shut for 7 years. The last man led down its ominous halls was Andrew Kokoraleis, a member of the satanic murder “ripper crew” that killed 3 and maimed 2 others in the Chicagoland area during the early 1980s. He died March 16, 1999, by lethal injection. Governor George Ryan, who signed his death warrant, signed a moratorium on the death penalty the following year. This moratorium was a direct result of DNA evidence exonerating a staggering amount of men on death row in Illinois. In 2011, Governor Pat Quinn signed legislation officially abolishing the death penalty in Illinois.   360 people have been executed in Illinois over its history as a territory and state. The first being a man named “Manuel” who was burned at the stake for witchcraft in 1779.^[2] The first man executed since statehod was John Kilduck, hung in 1819 for murder. From 1819 to 1928, Illinois hung its prisoners, followed by electrocution until 1978. Executions took a break for while only to usher in the violent, controversial encore in the 1990s using lethal injection.   Flash forward to May 15, 2018. In the midst of a contentious reelection campaign, Governor Rauner announced his intention to resurrect the death penalty. Pressed with a deadline to veto or enact a 72 hour wait period for rifles (HB 1468), Governor Rauner chose neither. Instead, he made his own proposals aka amendatory veto. Political ploy or not, his amendatory veto is a hodgepodge of liberal and conservative policies. Think tough on crime & gun control meets & has a baby. The boldest, and by far most controversial, is a new burden of proof & capital criminal offense: “Death Penalty Murder”   The concept of the death penalty is conceivably as old as time. The first recorded “law” endorsing the death penalty was the Ancient Babylonian, 18th century B.C.E., Code of Hammurabi. Captain George Kendall became the lucky recipient of our nation’s first official execution for being a Spanish spy in 1608, Jamestown, VA. Over three hundred years later, in 1972, the United States Supreme Court case of Furman v. Georgia, struck down all capital punishment statutes.^[7] This temporarily halted all executions, only to be reinstated by Gregg v. Georgia in 1976. Currently, 31 states still have capital punishment. However, fourteen of these states have a moratorium on the death penalty. The federal government has not executed anyone since 2003 and has a de facto moratorium. What is Death Penalty Murder & Why Is this Different?   According to Governor Rauner, Death Penalty Murder occurs if:

• A person 18 & over, who:
  • “Purposely causes the death of”
    • 2 or more human beings OR
    • A Peace Officer- in performance of duties
      • To prevent that performance; OR
      • Retatalion for that performance; AND
      • Defendant knew victim was peace officer.
    • SENTENCING: If found guilty, the court “shall” sentence defendant to death, except:
      • Defendant has right to present mitigating evidence at sentencing hearing; Statute specifically notes intellectual disability  as a mitigating factor (though not limited to this).
        • Evidence presented at this hearing is a preponderance of evidence standard.

  There are 4 forms of criminal intent, known as Mens Rea. Intentionally, Knowingly, Recklessly, & Negligently. With Death Penalty Murder, a new version of intent arises: purposefully. The Governor’s Amendatory Veto defines “purposefully” as “when his or her conscience objective is to cause the death of another human being.” However, there is nothing new here. This is almost verbatim the same definition as  “intentional.”   Accountability is specifically addressed under the proposal. With Death Penalty Murder, you are accountable (think: responsible) if you:  

• Command, induce, procure, or cause another to perform the conduct resulting in death, with the purpose of causing death to another human being; OR
• Agree with one or more persons to engage in conduct for the common purpose of causing the death of a human being;

  But the most striking aspect of this proposed offense isn’t actually the the death penalty itself. To be found guilty of this new offense, the State must prove “each and every” element of the offense “BEYOND ALL DOUBT.”   To illustrate how theoretically momentous this proposed concept is: no other state, country, or nation has this burden of proof on the books. This proposal would historically alter the traditional structure of the three pronged approach to the concept of the burden of proof: 1.Beyond all reasonable doubt; 2. Clear & Convincing; 3. Preponderance of the Evidence.   According to Governor Rauner’s legal alchemy, this offense and standard would:  

• (1) apply only to persons whose crime is so heinous as to clearly deserve to be executed;
• (2) require that any doubt regarding identification and guilt be resolved in favor of the accused (both at trial and on appeal; and);
• (3) Apply at both the trial and appellate level;
• (4) provide that the only authorized sentence for death penalty murder is death, with a safety valve for those for whom the death penalty would be manifestly unjust, such as those with intellectual disability”

  Proof beyond all doubt sounds great. It warms the heart to think of injecting potassium chloride into murders & cop killers with such certainty. But don’t be fooled, Beyond all Doubt is just simply B.A.D.   SO WHY BRING IT BACK?? According to the Governor:  

• “[a]nyone who deliberately kills a law enforcement officer or is a mass murderer deserves the death penalty.”
• “So many times the person's caught in the act or so many times there's multiple witnesses and they're fleeing the act and there's no question of who did it.”
• “After February’s tragic murder of Chicago police Commander Paul Bauer and the horrifying school shooting in Parkland, Florida, our team went to work to find meaningful solutions that keep firearms out of the hands of dangerous individuals and bring violent criminals to justice. The result is the bold, innovative, effective public safety package…”

          WHY IS IT B.A.D.?   The rationale for playing Lazarus to the death penalty in Illinois isn’t really about cop killers and mass murders. It’s about LEVERAGE. More importantly, regardless of the rationale, it’s certain to be the result.   This isn’t speculation. Studies on the death penalty & plea bargaining are surprisingly scarce, but all conclude: it’s a powerful plea bargaining tool for the State. Specific findings include:  

• Death Penalty increases likelihood of plea bargain 20-25%
• Increases number of defendants pleading guilty on their original murder charges; &
• obvious connection exists between death penalty and increased bargaining power of the State.

  Supporters of reinstatement make no bones about bringing the death penalty back as a negotiation tool. State Representative Keith Wheeler-R-Oswego cited discussions with Kane County State’s Attorney Joe McMahon about how the death penalty should be brought back as a “negotiation tool,” adding, “[t]hat’s an important tool to have back in the discussion.” Notably though, the Illinois State’s Attorney’s Association did not endorse the Governor’s proposal because of their  the beyond all doubt standard.   The government doesn’t need anymore “tools.” The Illinois Compiled Statutes already provide ample amount. Over the past 30 years, federal and state sentencing law progressively  shifted in favor of the State. With mandatory minimums & the Omnibus Crime Bill of 1994, the government legally cemented the role of prosecutorial leverage & discretion in criminal prosecutions. This coincided with the steady increase  of capital punishment until it’s national peak in 1999 with 98 executions. At this same time, DNA evidence emerged on the forefront of the scene and challenged the sanctity of the death penalty with proven exonerations.   The concept of Beyond All Doubt is a seemingly incestuous attempt to remedy the the death penalty’s horrific record by reintroducing it with a shiny new button: proof beyond all doubt. The fatal flaws that led to the moratorium & abolishment in Illinois are the exact reasons Governor Rauner added the “beyond all doubt” standard to Death Penalty Murder. During the same 9 years Illinois executed 12 men in the 1990s, 13 men were exonerated by evidence of their innocence. 7 more have been added to date, making the total number of exonerees in Illinois: 20. Governor Rauner’s logic is simple. DNA exonerated numerous defendants whose cases passed a beyond all reasonable doubt standard. Therefore, the problem wasn’t execution, it was the burden of proof.   WHAT’S NEXT?   Hard to believe all of this comes out of a bill (HB 1468) that simply requests extending the waiting period for rifle purchases to 72 hours. In addition to Death Penalty Murder, Governor Rauner’s bill also contains provisions for a Gun Violence Restraining Order and a prohibition on firearm components such as “bumpstocks.” Another section would require State’s Attorneys and Judges to put on the record why they reduced charges in gun related cases.   On May 21, 2018, the House Judiciary Committee held a hearing on the Governor’s proposals. At this point, politicians have three options: (1) Accept the proposal with a simple majority in both houses; (2)  Enact the original bill by rejecting the proposals with a ⅗ majority vote; or (3) Do nothing and kill the whole thing.   It’s been 18 years since the lights turned off at death row in Illinois, 7 since they shut the power off for good. The timing is hardly coincidence. Looming in the near future is an election in November. Many, such as his  Democratic opponent J.B. Pritzker, see this simply as a cheap political ploy to shore up conservative votes. Whatever the intentions, the creation & specifics of so called “Death Penalty Murder” are unprecedented.   Given the Democratic hold on the legislature & the controversial gun control provisions, such as the Gun Violence Restraining Order, it is unlikely death penalty murder is coming anytime soon to a courthouse theater near. Robert Callahan started his career in the era of capital punishment. Unlike almost all new attorneys, Robert knows how it used to be. Hopefully, it never returns, but if so, at Robert Callahan & Associates, we’re ready. death penalty, murder case, murder trial