The silver lining in Rauner’s death penalty cloud

While Governor Bruce Rauner’s proposal to restore the death penalty is a terrible idea for Illinois, it would be a step in the right direction if his concept were implemented in the 31 states that still have death penalties.

The silver lining in Rauner’s proposal, as he outlined it on Monday, is to limit the death penalty to cases of multiple murder and cop murders in which guilt is determined “beyond all doubt.”

First, consider that if the death penalty had applied only to those categories of cases it would have precluded seven of the twelve executions carried out under the Illinois capital punishment law that was abolished in 2011. Only five of those executed had killed more than one victim and none had killed a police officer.

Second, regarding “beyond all doubt,” there are, of course, any number of cases in which defendants have been inculpated by DNA, identified by multiple eyewitnesses, and have confessed. Those elements, in concert, are persuasive evidence of guilt, but they are not absolute. History is replete with capital cases in which police have planted evidence, state forensic experts have lied, eyewitnesses have been wrong, and confessions have been false.

Rauner’s criteria if implemented nationally, thus, in all likelihood would drastically limit the imposition of death sentences—hardly a bad idea—but restoring the death penalty in Illinois or other states where it has been abolished is quite another matter.

In Illinois, of some 300 defendants sentenced to death under the law that was abolished seven years ago, 20 were exonerated—an error rate in excess of 6 percent. While procedures have been improved to lessen the chances of false convictions, the “demon of error”—to borrow a phrase from former Governor George H. Ryan—will forever be present.

In addition—and Rauner, who touts himself as a fiscal conservative, should note this—the death penalty is far more expensive than life in prison, counterintuitive though that may be. In Illinois, where the General Assembly established a Capital Litigation Trust Fund in 2000 to defray costs of investigations by both the prosecution and defense into aggravating and mitigating evidence in potential death penalty cases, $122 million was spent through 2009—a period during which only seventeen death sentences were imposed and there were no executions.

In Maryland, a 2008 study found that the cost of each capital case exceeded the cost of a comparable non-capital murder case by $1.9 million, not counting the cost of cases in which the death penalty was sought but not imposed. When those cases were included, the difference per case was $2.2 million—and the cost per execution carried out was an astronomical $37.2 million.

A case might be made for the death penalty if it could be shown to deter murder, but it does not. If it did, having the death penalty would result in lower murder rates, but studies spanning more than 150 years have found that proportionately fewer murders occur in states that do not have the death penalty than in states that do—and, in the latter, that murder rates increase after highly publicized executions.

If experience be a guide, thus, Rauner’s death penalty proposal is not only fiscally irresponsible for Illinois, but it also would jeopardize public safety. That said, the idea nonetheless would be an advance for the likes of Texas, Oklahoma, Virginia, and other states that have yet to embrace the common sense of abolition.

This article has been updated to correct the number of executed prisoners in Illinois who killed more than one person.

Rob Warden is co-director of Injustice Watch. If you enjoyed this commentary, please subscribe to our newsletter.