A New Death Penalty Paradigm

Execution gurney in death chamber at Huntsville, Texas. GD, 020410.
CBSNews.com Legal Analyst Andrew Cohen looks at death penalty recommendations by the Illinois Commission on Capital Punishment.

If you are against the death penalty, the recommendations made public by the Illinois Commission on Capital Punishment confirm what you've long suspected: that there is an enormous, shocking gap between what death penalty procedures are and what they should be.

And if you are a proponent of the death penalty, the commission's study presents a marvelous opportunity to fix the capital punishment system in Illinois and elsewhere before it is irretrievably broken.

Either way, then, people who care deeply about this emotional issue have good reason to be thankful that 14 experts were willing to offer their time and energy to look intensely at how procedures can and should be changed. And, either way, even if only some of the 85 recommendations make it into law in Illinois or any other state, the cat is now out of the bag when it comes to educating judges across the country about what a model death penalty process ought to look like.

Defense attorneys everywhere soon will be pointing to the study's recommendations in order to highlight the differences between them and the less-protective procedures in place in so many other states across the country. And prosecutors in states which implement some or all of these recommendations soon will be able to point to them as proof that the death penalty process in that particular state is as good as anyone can hope for and expect.

What the study has done, then, is create a new paradigm which no one who works on death penalty cases can ignore. When you look through the recommendations, they are striking most for how sensible they seem to be and how senseless it is that they have not been put into place before. Of course all interrogations of capital suspects ought to be videotaped in order both to protect defendants (from abuse) and law enforcement officials (from false allegations of abuse).

Of course all attorneys in capital cases out to be highly competent and experienced -- a death penalty case is no place for a young attorney to cut his teeth or for a bad attorney to leech off the system. And of course no person should be condemned to death based upon the eyewitness testimony of a sole witness -- legal history is too fraught with proof that such testimony is often faulty.

If implemented, the recommendations will be expensive, and that's just one of the many arguments opponents of the study are likely to focus upon. But the added costs -- of video equipment and better attorneys, for example -- may be offset in whole or in part by decreased appeal and re-trial expenses. If the system spends more to get it right the first time, in other words, it will save money avoiding the need to try to get it right the second or third or fourth time.

Likewise, prosecutors are likely to balk at the recommendation which suggests that the number of death-eligible offenses ought to be reduced. But such a reduction wouldn't significantly tie the hands of government attorneys as they try to fit sentencing options with the particular level of criminal conduct. And even if it did, such restrictions would be balanced against the possibility of mistakes in death sentencing -- and that balance, it seems to me, has to side with the person whose life is on the line.

It's easy to see how death penalty opponents would welcome the Commission's results, even though there is no call from Illinois to completely ban capital punishment.

The new proposed rules are an admission by people in a good position to know that the existing rules in too many cases aren't nearly good enough to protect innocent people -- or people who don't deserve death -- from being condemned. And if they are implemented, they surely will result in fewer mistakes. Remember, the Commission was brought together in the first place because 13 men on Illinois' death row were improperly placed there.

But it shouldn't be hard to see how and why death penalty proponents ought to embrace the recommendations as well. There are only two possible futures for the death penalty in America. Either death penalty procedures will get better -- more thorough, more fair, more accurate, in which case the commission's study is a huge step forward -- or the death penalty itself will once again be banned by the Supreme court. If you like the death penalty, then, you ought to be rooted for precisely the sort of change from below which the recommendations represent.

Think this is hyperbole? Think again. The court has repeatedly over the past few sessions indicated a growing unease with the death penalty. It has gone out of its way, for example, to look at whether mentally retarded individuals should be executed and is widely expected to answer that question in the negative within the next few months. And the court has signaled in other subtle ways that it will not and cannot continue to condone capital sentences resulting from overtly unfair and one-sided processes.

No, a court U-turn on capital punishment is not imminent or even necessarily preordained. But one way to guarantee that the death penalty remains a legal sentencing option would be to fix the system at the state level before the Justices decide to fix it for the states.