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COMMUTATIONS ARE FINE, BUT DON'T FORGET THE PARDONS
Professor Welsh White
University of Pittsburgh School of Law
JURIST Guest Columnist

Last week, on successive days, Illinois Governor George Ryan issued full pardons to four Illinois inmates on death row and then commuted the death penalties of all the remaining Illinois prisoners on death row, changing their sentences to life without possibility of parole.

Although it had long been expected that Governor Ryan would take some action with respect to Illinois's death row population, the scope of his action has startled many observers, infuriating some and delighting others. Certainly the Governor's announcement of general clemency is remarkable, but the pardons that immediately preceded that may be just as significant.

Issuing complete pardons to four people under sentence of death is probably unprecedented - "Guiness Book of Records rare" as Berkeley law professor Frank Zimring has put it. Nevertheless, Governor Ryan's action was appropriate. The disturbing aspect of these four cases relates to the circumstances under which the defendants were convicted and sentenced to death, not to the fact that they were eventually pardoned. Indeed, it seems unconscionable that the defendants remained under sentence of death as long as they did.

Governor Ryan pardoned the four defendants because he concluded that police coerced false confessions from them through torture. Based on the history of the cases, there was ample evidence to support this conclusion. The homicide detectives who interrogated the four defendants served under John Burge, who was then head of Chicago's Area 2 Violent Crimes on the South Side. During the 1980s, numerous defendants alleged that Burge and the detectives acting under him extracted confessions through physical brutality. Although the Illinois courts uniformly rejected these defendants' claims, a police investigator eventually conducted a massive investigation and issued a Report concluding that the defendants' claims were accurate. The Report stated that the "[t]he time span involved cover[ed] more than ten years. The type of abuse described was not limited to the usual beating, but went into such esoteric areas as psychological techniques and planned torture." The practices included "hanging by handcuffs for hours, a cattle prod to the testicles, [and] Russian roulette with a gun in the suspect's mouth." As a result of this Report, John Burge was fired and civil settlements were made with some defendants. Nevertheless, ten defendants who had been been convicted and sentenced to death on the basis of confessions obtained by Burge's detectives remained on death row. These defendants became known as the "death row ten."

Governor Ryan pardoned four of the "death row ten." There is ample evidence to support his conclusion that, at least in these four cases, the defendants' confessions were not only coerced but also false. In Stanley Howard's case, for example, there was little evidence aside from his confession to suggest that he was involved in the crime. At trial, the prosecution presented no forensic evidence and only an eyewitness who had earlier been uncertain as to whether Howard was the killer. Moreover, the murder involved the early morning shooting of a man and a woman who were involved in an extramarital affair. A witness later testified that before shooting the man, the killer stated, "I told you I would get you." The circumstances thus seemed to suggest a revenge killing. Yet Howard had no connection to the victims and his confession seemed to indicate that the victims were selected at random. Confessions extracted by torture clearly have the potential for producing wrongful convictions. In these cases, Governor Ryan accurately concluded that the defendants' convictions were too unreliable to stand.

Illinois law enforcement's harsh reaction to Governor Ryan's pardon of four of the "death row ten" - in the words of one prosecutor, an "outrageous and unconscionable" act - provides insight into the Governor's subsequent decision to commute all Illinois death row inmates' death sentences to life imprisonment. The Governor's stated basis for these commutations was that, given the frequency with which Illinois defendants sentenced to death have been exonerated, allowing the execution of Illinois defendants on death row would produce an intolerable risk of executing an innocent defendant. Given not only Illinois' large number of exonerations but also Illinois law enforcements' apparent indifference to cases of manifest injustice evidenced by their attitude towards the "death row ten" and their reaction to the pardoning of defendants who seemed clearly innocent, his judgment seems correct. If a state is to employ the death penalty, it should at least be required to show that it is clearly committed to providing a system that will minimize the risk of an innocent defendant being executed.


Welsh White is Professor of Law at the University of Pittsburgh School of Law, where he teaches Criminal Procedure and Evidence. He has authored three books on capital punishment and numerous essays and scholarly articles on evidence and criminal procedure,

January 13, 2003

GUEST COLUMNIST

JURIST Guest Columnist Welsh White is Professor of Law at the University of Pittsburgh School of Law, where he teaches Criminal Procedure and Evidence. Author of three books on capital punishment - including The Death Penalty in the Nineties: An Examination of the Modern System of Capital Punishment (University of Michigan Press, 1991) - and numerous essays and scholarly articles on evidence and criminal procedure, Welsh White has been quoted as an expert in these areas on high-profile cases in publications like Time and the New York Times. His scholarly articles have appeared in the Columbia Law Review, Michigan Law Review and the Harvard Civil Rights-Civil Liberties Review, among others.

While teaching full-time at Pitt Law School, where he has been a member of the faculty since 1968, Professor White has represented or assisted in representing indigent criminal defendants, particularly in capital cases.