- The Washington Times - Friday, January 17, 2003

Capital punishment is too important for Illinois Gov. George Ryan's dilettantism.Last Saturday, as the curtain closed on his ill-starred governorship, Mr. Ryan commuted the sentences of all 167 Illinois death row inmates. His passions blazed; his mental faculties slumbered; and reasonable death penalty concerns were drowned amidst a hurricane of sophomoric objections.

According to the governor, capital punishment is dubious because Europe, Canada, Mexico, South and Central America have renounced the practice. But aping foreign nations, ipso facto, is no earmark of enlightenment, as none of the governor's model nations crown an accused with the muscular procedural protections demanded by our Constitution, such as the Fifth Amendment privilege against self-incrimination, the exclusion of reliable but illegally seized evidence, and the right of confrontation and cross-examination.

Mr. Ryan harrumphed to discredit a deterrence claim that 12 states witnessed no climb in homicide rates after abolishing the death penalty. But the incidence of crime, including murder, turns on many inconstant factors, not simply theoretical punishment, including the probability of apprehension. Further, the governor failed to indicate whether the 12 abolitionist states had previously forsworn the death penalty de facto through the decisions of prosecutors, juries or judges.

Mr. Ryan bewailed that only 2 percent of murderers were sentenced to death in Illinois last year. "Where is the fairness and equality in that," he asked. The discrepancy, however, could be cured by a mandatory death penalty for murder. (But that guarantee of equal punishment has been ruled unconstitutional by the United States Supreme Court).

Furthermore, different punishments for the same capital crime reflect different aggravating and mitigating factors regarding both the character of the offender and circumstances of the offense. The 2 percent figure Mr. Ryan decried indicates that the death penalty is scrupulously administered, not unfairly skewed.

Decisions to request the death penalty are scattered among 102 Illinois state attorneys. No uniform prosecutorial standard guides their discretion. Mr. Ryan assails the potential for unequal treatment.

But the risk of inequality in criminal justice is inescapable in a noncloned society. Suppose a uniform standard required evidence of extreme cruelty in the crime and an offender unscathed by child abuse or neglect before seeking the death penalty. Prosecutors would still differ in applying facts to the standard, just as jurors regularly differ in voting for capital punishment or life imprisonment. Moreover, death cannot be imposed unless a jury unanimously finds that specific aggravating factors outweigh mitigating considerations.

The governor deplored the 500 percent discrepancy in the probability of receiving a death sentence for first degree murders in rural areas as opposed to Cook County. But geographic discrepancies are uninformative without showing that the character of the murderers and the nature of their killings were approximately the same in both territories.

Mr. Ryan correctly worried over the incidence of error in the trials and sentencings of death row inmates. He decried that half of 300 capital cases in Illinois had been reversed for a new trial or resentencing. Upgrading defense counsel, confining death to crimes which shock the conscience, and requiring proof of capital offenses beyond any doubt are needed reforms.

But the governor wandered miles beyond these concerns in offering blanket clemency irrespective of plausible innocence. According to a Jan. 14, 2003, article in The Washington Post, for example, Mr. Ryan's leniency reached William Peeples, guilty of murdering charming Dawn Dudovick with a 9-inch butcher knife after attempting rape. During a canvass of neighbors, Peeples denied the police entry. He set fire to his apartment hoping to destroy evidence. The police foiled an attempted escape through the back window and recovered the knife. Peeples had earlier been convicted of attempting rape of a 13-year-old adolescent he had assaulted with a knife.

Gov. Ryan complained that 35 African-American death-row inmates had been convicted or sentenced by all-white juries. But there is no constitutional right to racial quotas on juries. Moreover, the Supreme Court expressly held in Batson vs. Kentucky (1986) that the 14th Amendment prohibits racial prejudice in jury selection.

Mr. Ryan wept like Niobe for the families of murderers exposed to capital punishment. He lamented: "The family members of death row inmates have a special challenge to face. Many of these families live with the twin pain of knowing not only that, in some cases, their family member may have been responsible for inflicting a terrible trauma on another family, but also the pain of knowing that society has called for another killing. These parents, siblings and children are not to blame for the crime committed, yet these innocents stand to have their loved ones killed by the state."

Neither equal time nor tears by Mr. Ryan were begrudged to the families of victims of savage murderers. Moreover, decisions to kill are not made by a Leviathan state, but by unanimous jury verdicts that consider all mitigating evidence.

Mr. Ryan summoned the testimony of the Most Reverend Desmond Tutu: "To take a life when a life has been lost is revenge; it is not justice." But is Bishop Tutu's sermon self-evident? Why isn't death for abominations like September 11, 2001, an honorable public statement that lesser punishment would dishonor the courage and lives of the innocent victims, like turning Auschwitz into a shopping mall? Executions for unspeakable crimes bespeak the sacredness of lives lost, not animalistic revenge.

Nothing better captures Mr. Ryan's addled thinking than his tearful fretting that, "Our prisons have no air conditioning, except at our supermax facility." Enlightened death penalty debate cries for more intelligence and balance.

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