Jan. 23, 2003 – Vol. 22 No. 8

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    Ryan’s commutation not the first issued in history to correct injustice, say scholars

    By Peter Schuler
    News Office

    Former Illinois Gov. George Ryan’s recent decision to commute the sentences of all 167 Illinois death row prisoners, which followed a moratorium and a review of the death penalty system by a gubernatorial commission, has provoked outspoken criticism and rallied support alike.

    Albert Alschuler, the Julius Kreeger Professor of Law and Criminology in the Law School, was one of 400 U.S. legal scholars who signed a Dec. 30, 2002, letter to Ryan. The letter analyzed the historical use of the power of executive clemency and made the argument that “where circumstances warrant, executive clemency should be and has in fact been used as a mean to correct systematic injustice.”

    The crucial issue in Illinois’ current debate has been, not the arguments for or against the death penalty in the abstract, but whether the criminal justice process is so flawed that it cannot be trusted to produce just results.

    When asked to comment on Ryan’s commutation, announced Saturday, Jan. 11, Alschuler, author of Law Without Values: The Life, Work and Legacy of Justice Holmes, noted that no one still quoted the famous words of the legendary New York jurist Judge Learned Hand, in 1923: “Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.”

    He said numerous governors and presidents have issued blanket commutations similar to Ryan’s. “Governors Alfred E. Smith and Herbert H. Lehman of New York commuted every case where at least one justice of the Court of Appeals had dissented from the court’s affirmation of the death sentence,” he said.

    “Our letter did not tell Governor Ryan what to do; it was a lawyer’s argument that marshaled historical precedents,” Alschuler said. New York University law professor and Constitutional scholar Anthony Amsterdam initiated the letter. They were responding to the argument made by Illinois prosecutors and others that it would be a misuse of the commutation power to apply it on a systematic basis, rather than on the basis of inequities in individual cases.

    Alschuler said there are more justifications for the Governor’s decision than simply the fact that the system has been unable to separate the innocent from the guilty. “There are many other inequities,” Alschuler said, “including racial disparities.”

    Alschuler pointed out that statistics prove that the race of a victim has had a significant effect on whether the sentence of death has been imposed. “In Illinois, someone who kills a white person has been almost four times likelier to get the death penalty than someone who kills a black person,” he said.

    Alschuler noted that new technologies, which were unimaginable in the past, can prove guilt or innocence conclusively in some cases. “We’re finding mistakes in many situations. I for one didn’t take the problem of false confessions seriously enough. I thought it very unlikely that an innocent person who hadn’t been physically tortured would confess to something he didn’t do, but we keep finding instances where that is exactly what happened.”

    Alschuler’s colleague, Norval Morris, former Dean and the Julius Kreeger Professor Emeritus in the Law School, and a leading expert on criminology, agreed that after Ryan’s commission on capital punishment concluded that the system was replete with errors and he declared a moratorium on executions, the Governor’s only appropriate action in the end was the blanket commutation. “In addition,” Morris noted, “there is no evidence from anywhere in the world that capital punishment has resulted in any measurable reduction in the number of murders or attempted murders.”

    Locke Bowman, Director of the MacArthur Justice Center, a public-interest law firm affiliated with the Law School, said Ryan made the right decision. “The reality is that every single individual on death row–in Illinois–was placed there by a system that is totally flawed.”