Death Be Not Proud

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

If you cringe at the prospect of capital punishment, you obviously applauded the fact that Illinois' death row has been wiped clear. But if you want to see the death penalty continue in Illinois and elsewhere, you also, counter intuitively perhaps, should be thankful that the beleaguered governor took the stand he did on this epochal issue.

Sometimes it takes a real jolt to the system to make people understand just how completely the system is broken and what is needed to fix it. This is one of those times. It is in everyone's interests to fix the system and Governor Ryan's bold, courageous, unpopular crusade takes a huge step in that direction.

Death penalty opponents ought to be satisfied that Governor Ryan now has set the standard by which other states will be measured - by the courts, by politicians and by the people - in determining the fairness of capital cases. No other chief executive is required to follow Ryan's lead, of course, but no other chief executive can afford to completely ignore it, either. If only Nixon could go to China, only a Republican governor like Ryan, who voted to reinstate the death penalty in his state in 1977, could speak out so loudly and forcefully and effectively about his state's systemic problems in implementing capital punishment.

Ryan imposed a moratorium on executions in Illinois three years ago after he learned that 13 death row residents had been unfairly convicted. He then commissioned a study of the state's system and that study concluded what similar studies would conclude if they were conducted in every state that has a death penalty. Even in capital cases, where a defendant's life is on the line, the study found that there were too many instances where defense attorneys were incompetent, the police acted inappropriately, prosecutors acted overzealously, judges acted unfairly, juries judged too harshly or appellate standards didn't serve as safety nets.

What happened when the study issued its findings? Nothing. Instead of acknowledging the evidentiary force of the commission's conclusions, Ryan's fellow pols in Illinois either shot the messenger - Ryan, under a cloud of corruption on unrelated matters - or simply ignored what they saw with their very own eyes. And that forced Ryan to do what he did over the past few days.

"The Legislature couldn't reform it," Ryan said Saturday, "lawmakers won't repeal it, but I will not stand for it - I must act."

But even though his "act" has infuriated some lawmakers and prosecutors and the family members of victims of violence, and even though Ryan now is Public Enemy No. 1 to capital punishment supporters - even his most fierce critics ought to realize that he's done them the biggest favor they could ever imagine.

That's because the only way capital punishment will survive as a legal option over the next 10 years is if the procedures by which men and women are sentenced to death are fixed from the ground up; from and within state legislatures. And the only way those procedures will be fixed is when other politicians like Governor Ryan stand up and say, "Enough." Enough of inexperienced - or, worse, drunk or sleeping - defense attorneys paid peanuts by the state. Enough of rambunctious detectives who torture confessions out of suspects. Enough of prosecutors who use race as a basis for deciding who gets to face capital charges. Enough of trial judges who allow it all to happen. Enough of appeals judges who tie their own hands to do justice.

It's time for even the most ardent fans of the death penalty to acknowledge, in the most self-serving way possible, that the only way they can "lose" the option of capital punishment is if the Supreme Court decides to throw out the whole capital scheme once again. It's happened before, most recently in 1972, and it could happen again. It is no coincidence that the Supreme Court last term outlawed executions for mentally retarded people or that it may be inching toward similarly outlawing it for juveniles. It is no fluke that conservative Justice Sandra Day O'Connor - the darling of the right - would feel the need to say publicly a few summers ago that she is concerned about the very issues that moved Governor Ryan to take his stand. The Justices are beginning to take notice of the problem. Death penalty advocates had better, too.

The sooner capital punishment supporters realize that they need to fix the system or lose it, the sooner they'll be able to secure what might truly be a just, moral model for retribution and justice. That's why it is so ironic to read the scathing criticism directly this past weekend toward Governor Ryan. He didn't free those 167 people whose death sentences were commuted. The vast majority of them will die in jail, just a little later than they would have had they been executed. And as for the men who were pardoned, well, what was the Governor supposed to do? Keep the men in prison knowing they were innocent?

It's ironic that so many people are criticizing Ryan while so few criticize the legislators who failed or refused to make the system better. It's ironic that so many people think it is outrageous that death sentences would be reduced to life sentences while so few people think it is outrageous that cops would torture criminal suspects or that the system would determine who lives and who dies by the color of a suspect's skin. Think about how quickly the death penalty could be secured in Illilnois and elsewhere if people stopped pretending the system wasn't broken and focused their time and money and energy instead on fixing it.

All Ryan did was tell it like it is. The government in Illinois broke an implicit promise with its citizens that it would implement the death penalty accurately and fairly. Ryan couldn't fulfill that promise so he released from their own obligations the other parties to the deal - the men and women who were put onto death row in circumstances that are unworthy of a just system. To me, that's not "outrageous" and "unconscionable" - as one local prosecutor put it. To me, that's a profile in courage and honor.

By Andrew Cohen