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“Evidence of Innocence is Irrelevant": The Death Penalty and the Illinois Experiment

The Fallibility of<br>Human Judgment
Beryl P. Wajsman 10 October 2004

"The legislature can't reform it, the lawmakers won't repeal it and I won't stand for it."

~ Gov. George H. Ryan, Illinois

This past week Montreal played host to the World Conference for the Abolition of the Death Penalty. It attracted many celebrities among them Catherine Deneuve and Bianca Jagger. As important as their support is in ending this abominable practice, and as dramatic a demonstration as it was, we must look back to January 2003 for the last substantial progress in this cause.


That month a brave American Governor, George Ryan of Illinois, dramatically commuted the death sentences of all 167 inmates on that state’s death row. This was the largest commutation in American history and the reasons for it, rather than the sheer numbers, merit review.

The Northwestern Law School’s Center for Wrongful Convictions, upon whose work this decision had been partially based, found an unacceptably high number of inequities, irregularities and outright illegalities in the investigation and trials of many of the convicted.

Though we in Canada could be justly proud of the fact that we have abolished the death penalty, and indeed in the last free vote in Parliament on reinstitution, even much of the right voted to maintain abolition, many of the glaring faults in the American criminal justice system are evident in our own. Though we haved stopped pandering to popular bloodlust, these endemic problems must become the focus of an engaged citizenry and desperately needed reforms must be put in place.


Evidence from our own Department of Justice, the John Howard Society and Toronto’s Association in Defence of the Wrongfully Convicted, demonstrates that some of the same issues plague our own overburdened criminal justice system resulting in too many indictments and convictions of the innocent as we have seen in the Truscott, Morin and Campbell cases just to name a few. What was new in the Northwestern study were the percentage of errors, and the instances of abuse, which were higher than ever before imagined.

A look at the numbers is compelling. Compelling because this was not some small backwater Southern state with a history of racist and criminal justice abuse. This was Illinois, the “Land of Lincoln”, as it says on their license plates. As Sinclair Lewis wrote “ If it could happen there, it can happen anywhere.”


Item 1:Half of some 300 capital cases had been reversed for new trial or sentencing based on new evidence of innocence or abuse of the rights of the accused. Item 2: Two-thirds of the convicted were visible minorities. Item 3:  Of these half had been convicted, not by a jury of their peers, but by all-white juries. Item 4: Twenty percent had been represented by lawyers who had been disbarred or at some point suspended from the practice of law. Item 5: Fully one-third had been convicted on the basis of testimony from jailhouse informants who had made prosecutorial deals to reduce their own sentences. And finally, at one stage in the study, it had been uncovered that of the first 13 cases where new evidence showed innocence---12 of those men had already been executed.


It is astounding that the United States, the guardian of freedom, is in a minority of world nations still indulging in capital punishment. The others are such bastions of democracy as China, North Korea and most of the retrograde radical Muslim world.


United Nations statistics have shown for decades that those nations that have abolished the death penalty have seen rates of violent crime drop dramatically, while those who persist in maintaing it, continue to have abnormally high incidents of violence. The reason is clear. State killing is still killing. And the message it sends out is that life is cheap.

Even conservative Supreme Court Justice Harry Blackmun admitted that, “The death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations can ever save the death penalty from its inherent constitutional deficiencies.” And crime-busting Mayor Rudy Giuliani added, "It's a phony issue. To pretend the death penalty is going to end crime in the United States is to fool people, to promote public ignorance.”

What has always seemed astonishing is that the very same supposedly God fearing people who state that only the Almighty can decide when life begins, that it is so sacrosanct and  that the rights of the unborn are to be protected at all costs, are always the first shrill voices one hears demanding the revenge of blood. It is one of life’s more bitter ironies.


Gov. Ryan’s courage was commendable. But the struggle continues. A recent American study this past summer showed that 15% of death-row inmates had been found innocent through new evidence within the previous twelve months. Too high a price for the perpetuation of nothing more than a morbid ritual nourishing the vacuous impression of the destruction of evil.


The most vital principle is clear. The state can have no legitimate right to destroy something it has not created. In this case life itself. No crime is as grave as collectivist arrogance. Compromise of this principle has always been the precursor for the ultimate imposition of group imperative over individual right. What Camus called “…acts of public premeditation without equivalency…” He concluded,


“An execution is not simply death. It is just as different from the privation of life as a concentration camp is from prison. It adds to death a rule, an organization which is itself a source of moral sufferings more terrible than death. Capital punishment is the most premeditated of murders, to which no criminal's deed, however calculated can be compared. Such a monster is not encountered in private life.”

Beryl P. Wajsman


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