Even a ‘no doubt’ death penalty is fatally flawed

Eric Zorn

That innocent people are occasionally sentenced to die is just one of two major problems with capital punishment.

Gov. Bruce Rauner is proposing to eliminate the innocence problem by reinstating Illinois’ death penalty in limited circumstances — the murder of law enforcement officers or multiple murders — and only when “each and every element of the offense is established beyond any doubt” as opposed to “beyond a reasonable doubt,” the traditional standard for conviction.

Would it work? Hard to say for sure since raising the standard of proof for the death penalty is an idea that’s been floated many times but never implemented, according to Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C.

What we do know, Dunham said, is that in many of the 162 cases since the mid-1970s in which death row inmates have ultimately been exonerated, lower-level appellate courts have thundered about the “overwhelming evidence of guilt.”

Tentative jurors who overcome nagging doubts and vote to convict don’t seem to be a major cause of miscarriages of justice, Dunham said. Far more significant are police misconduct, prosecutorial overzealousness, the use of junk science, faulty eyewitness identifications and informants who lie.

“It’s hard to see how raising the standard to ‘beyond any doubt’ would overcome those kinds of systemic problems and give us only quality convictions,” he said.

Still, we all know what Rauner meant Monday when he unveiled a proposal to create a special category of homicide called “death penalty murder” as part of his amendatory veto of a gun-control bill. He meant cases where there’s slam-dunk video or DNA evidence; numerous credible and consistent witnesses; voluntary, corroborated confessions and so on.

Such cases undeniably exist, and they’re particularly horrifying when the victim is a police officer or when there’s more than one victim.

The idea of trying to isolate slam-dunk cases from cases where at least some small doubt lingers has traditionally been offered up as a potential safeguard against wrongful executions in states with the death penalty. And it has typically been shot down, as it was in Arkansas in early 2017, by conservative enthusiasts of capital punishment who fear such a proposal is a back-door attempt at abolition.

Illinois installed the ultimate safeguard against wrongful executions by eliminating capital punishment in 2011.

But even if flawlessly implemented, Rauner’s idea can’t overcome the second major problem with capital punishment: Methodically killing murderers is a wasteful government program that costs a lot and provides almost no benefits.

It sounds counterintuitive, but study after study has shown that because of the expense involved in maintaining a capital justice system — additional layers of appeals, death row housing and so on — it ends up costing significantly more to execute convicts than to keep them locked up for life.

Some would say that you can’t put a price on the emotional satisfaction of putting stone-cold killers to death. But they would be wrong.

For example, an analysis by conservative Creighton University economist Ernest Goss published in 2016 found that, “for the two-year period, 2012 and 2013, the average U.S. state with the death penalty would have saved $46,474,823 had the state eliminated the death penalty and replaced (it) with life without parole.”

Rauner’s proposal, which calls for each court considering a death penalty appeal to “conduct an independent review of the evidence without giving deference to the judgment of the trier of fact at trial” would almost certainly be more expensive than the traditional capital appeals process.

Meanwhile, a similarly persuasive collection of studies finds that the death penalty provides no statistical benefit for members of the public or for members of law enforcement.

“We looked at 29 years of FBI homicide data and found that murder rates are slightly higher in states that have the death penalty,” said Dunham, referring to a Death Penalty Information Center analysis of the years 1987 through 2015. “The rates at which police officers were killed were also higher in death penalty states. And states that eliminated the death penalty” — such as Illinois — “saw no apparent change in either rate compared with national trends.”

The promise of the death penalty is as empty as Rauner’s political ploy in heralding its revival.

Illinois has moved on, and so should he.

Eric Zorn

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