0091-4169/10/10004-1301 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 100, No. 4 Copyright © 2010 by Leigh B. Bienen Printed in U.S.A. CAPITAL PUNISHMENT IN ILLINOIS IN THE AFTERMATH OF THE RYAN COMMUTATIONS: REFORMS, ECONOMIC REALITIES, AND A NEW SALIENCY FOR ISSUES OF COST LEIGH B. BIENEN∗ Perhaps most telling is the view of Professor Joseph Hoffman, someone who has devoted enormous time and energy to death penalty reform, spearheading death penalty reform efforts in both Illinois and Indiana and serving as Co-Chair and Reporter for the Massachusetts Governor’s Council on Capital Punishment. Hoffman served as a member of an advisory group to discuss an earlier draft of this paper, and he strongly expressed the view that seeking reform of capital punishment in the political realm is futile. This is a striking position to take by one who is not morally opposed to the death penalty and who has worked on numerous reform projects. But Hoffman cited as grounds for his change of heart the example of Illinois, in which there were confirmed wrongful convictions in capital cases, a sympathetic Governor, and a bi-partisan reform commission, but still strong resistance in the state legislature to reforms specifically targeted at capital punishment. In short, serious concerns about efficacy in the political realm militate against the undertaking of a new reform 1 effort by the Institute. . . . ∗ Senior Lecturer, Northwestern University School of Law. This Article is dedicated to Neil Alan Weiner, distinguished homicide researcher, coauthor with Marvin Wolfgang and many others, and my longtime collaborator and friend. At the time of his untimely death in 2009, Neil Alan Weiner was Research Director at the Vera Institute of Justice, New York, New York. 1 CAROL S. STEIKER & JORDAN M. STEIKER, REPORT TO THE ALI CONCERNING CAPITAL PUNISHMENT 5 (2008), available at http://www.ali.org/doc/Capital Punishment_web.pdf (Annex B). Note: The Northwestern University Law School Capital Crimes Database of all first- degree murders in Illinois, 2003–2009 [hereinafter NULSCCD] will be posted on the Northwestern University School of Law website, along with all data received by the author in response to FOIA requests to the Illinois State Treasurer and other sources on the expenditures and appropriations of the Capital Litigation Trust Fund. 1301 1302 LEIGH B. BIENEN [Vol. 100 I. INTRODUCTION When I first came to Illinois from New Jersey in 1995, nothing suggested change was coming in the pattern or practice of capital punishment in Illinois. There were more than 160 people on death row in Illinois.2 By contrast, in 1996 New Jersey had twelve people on death row.3 The New Jersey Office of the Public Defender had a strong statewide administrative structure and a centralized budget. The New Jersey Department of the Public Advocate spent millions of dollars for defense attorneys to challenge every aspect of every death sentence imposed after reenactment in 1982.4 The public defenders then brought each death sentence to the extraordinarily conscientious New Jersey Supreme Court for constitutional review and proportionality analysis.5 Capital practice in Illinois had none of these institutionalized traditions. The author acknowledges the continuing and much appreciated support of the Northwestern University School of Law, and especially that of Dean David E. Van Zandt and Associate Dean Kimberly Yuracko. The faculty research funds have supported this research and data collection effort over a far longer period than was required for this Article. I am deeply grateful. Special thanks to Jonathan Sabo, Northwestern University School of Law, J.D. 2011, for his outstanding contributions, and to successive staff and editors of the Journal of Criminal Law and Criminology for their expertise, patience, and dedication. Thanks also to the members and staff of the Illinois Capital Punishment Reform Study Committee, and especially Thomas P. Sullivan, Richard D. Schwind, David Olson, Walter Hehner, and many others. I am in your debt. Many state and county staff members have also been extremely helpful. Special thanks to Peggy Anderson at the office of the Cook County Clerk and to the many others who assisted. The expertise and proximity of Northwestern University School of Law’s Bluhm Legal Clinic and the Center on Wrongful Convictions were of great assistance and inspiration. Special thanks to Rob Warden, Tom Geraghty, Jennifer Linzer, Dolores Kennedy, and many others. Our expert librarians are always vital to my research: Marcia Lehr, Pegeen Bassett, and other library staff in Chicago and Evanston. Many students and interns worked on this article and the data collection effort: Christopher Tansey devoted many hours and days to the tables; Jason Grago also provided great assistance; other helpers included Sarah Pfander, Cate Schur, Alex Yastrow, and many others. Thanks always to Juana Haskin and to Cecilia Torres. 2 The Illinois death row population in 1996 was 164. Leigh B. Bienen, The Proportionality Review of Capital Cases by State High Courts After Gregg: Only “The Appearance of Justice?”, 87 J. CRIM. L. & CRIMINOLOGY 130, 169 tbl.2 (1996). 3 Id. at 166 tbl.1. New Jersey reenacted capital punishment in 1982, and it was not until 1992 that the New Jersey Supreme Court found that a particular death sentence met the stringent requirements of judicially-mandated proportionality review. See State v. Marshall, 613 A.2d 1059 (N.J. 1992). See generally infra Part IV.D. 4 See Leigh B. Bienen et al., The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion, 41 RUTGERS L. REV. 27, 36 (1988) (describing the methodology and results of the extensive research project begun at the New Jersey Office of the Public Defender and later taken over by the Supreme Court of New Jersey). 5 Bienen, supra note 2, at 139–40. Proportionality review was one of the reforms instituted “[s]o that death sentences would no longer be cruel and unusual in the same way that being struck by lightning is cruel and unusual,” along with a structure of aggravating 2010] CAPITAL PUNISHMENT IN ILLINOIS 1303 Nor was there any state court or institution in Illinois that would have been inclined to or capable of undertaking the kind of comprehensive system-wide review and analysis of capital case processing such as that conducted by the New Jersey Supreme Court under the rubric of proportionality review. The Illinois Supreme Court was unreceptive to constitutional challenges to the statute or to the system.6 Since the 1970s the court has consistently refused to consider constitutional challenges to the application of the statute based upon evidence of racial or geographic disparities in death penalty prosecutions and sentencing.7 There were brief moments, first in 1979 and then again in 1984, when the constitutionality of capital punishment was a live issue before the Illinois Supreme Court and federal courts in Illinois.8 However, since that time the Illinois Supreme Court has indicated in numerous opinions and through other institutional and mitigating factors to guide the sentencing decision. Id. A court conducts proportionality review by “comparing the death sentence on appeal with similar cases throughout the state” to ensure that the defendant is not being disproportionately punished. Id. “Heightened judicial scrutiny at the appellate level, with the inclusion of proportionality review, has since been viewed by some justices as fundamental to the constitutionality of the death penalty itself.” Id. The Supreme Court of New Jersey was exceptional in, immediately after reenactment, declaring its intention to review patterns and discrepancies introduced by prosecutorial charging practices, irrespective of their origin and whether caused by differences in charging patterns, sentences, or other factors. See State v. Koedatich, 548 A.2d 939 (N.J. 1988); Leigh B. Bienen et al., The Reimposition of Capital Punishment in New Jersey: Felony Murder Cases, 54 ALB. L. REV. 709, 732–35 (1990) [hereinafter Bienen, Reimposition of Capital Punishment]. Additionally, in State v. Marshall, 613 A.2d 1059 (N.J. 1992), and State v. Ramseur, 524 A.2d 188 (N.J. 1987), the court considered as axiomatic that it had the authority and duty to review county prosecutors’ charging decisions in the selection of cases for capital prosecution. 6 See, e.g., People v. Erickson, 641 N.E.2d 455, 459 (Ill. 1994) (dismissing defendant’s claim of ineffective assistance of counsel at the sentencing phase of his trial). 7 See People v. Lewis, 473 N.E.2d 901, 914 (Ill. 1984), stating: The defendant’s argument for proportionality review must also fail. The Illinois Constitution, the death penalty statute, and the Supreme Court Rule 603 all provide for direct appeal to this court of any conviction for which the death penalty has been imposed. The entire court record is available to the reviewing court for examination, thus disclosing the evidence which motivated the imposition of the death sentence. This court has consistently found that these review procedures sufficiently protect against the arbitrary imposition of capital punishment. (citations omitted). 8 See People v. Silagy, 461 N.E.2d 415, 433–34 (Ill. 1984) (Simon, J., dissenting) (noting that four of the seven sitting justices have said and continue to adhere to the view that the Illinois death penalty statute is unconstitutional because it allows prosecutors too much discretion in charging decisions); Lewis, 430 N.E.2d at 1363–85 (Ill. 1981) (concurring and dissenting opinions from six of the seven justices explaining their views on the constitutionality of the Illinois death penalty statute); People ex rel. Carey v. Cousins, 397 N.E.2d 809 (Ill. 1979) (holding Illinois death penalty statute constitutional over vigorous dissent of three of seven justices); see also Leigh B. Bienen, The Quality of Justice in Capital Cases: Illinois as a Case Study, 61 LAW & CONTEMP. PROBS. 193 (1998). 1304 LEIGH B. BIENEN [Vol. 100 signals that it is uninterested in any system-wide challenge to the capital punishment system.9 In 1984, the United States Supreme Court ruled that statewide proportionality review was not required in order to comply with the Fourteenth and Eighth Amendments to the United States Constitution.10 Since then the Illinois Supreme Court has repeatedly declared that it need not and would not in the future use proportionality review to conduct a systematic statewide analysis of the patterns in the application of the death penalty arising from the fact that the 102 elected county state’s attorneys each individually select cases for capital prosecution.11 The state high court has regularly affirmed death sentences, and has expressed the view that the scope of its review would be purely procedural.12 However, an external study of Illinois death sentences found that as of 1995, 40% of the death 9 There has never been the institutional will or the leadership within the Illinois criminal justice system for an enterprise such as the comprehensive analysis of capital case processing undertaken by the Supreme Court of New Jersey under the leadership of Chief Justice Robert Wilentz in the 1980s and 1990s. After his death, the character of that court changed significantly. See Leigh B. Bienen, Not Wiser After 35 Years of Contemplating the Death Penalty, 42 STUD. L., POL. & SOC’Y 91 (2008). For a description of how a change in supreme court justices can influence outcomes of death penalty litigation positively, see Rob Warden, Illinois Death Penalty Reform: How It Happened, What It Promises, 95 J. CRIM. L. & CRIMONOLOGY 381, 389–391 (2005) (discussing how a change in justices affected the outcome in People v. Lewis) and Bienen, supra note 2. 10 Pulley v. Harris, 465 U.S. 37, 50–51 (1984). 11 See People v. King, 488 N.E.2d 949 (Ill. 1986); see also ex rel. Carey, 397 N.E.2d 809 (Ill. 1979). The Illinois Supreme Court will on occasion conduct intra-case proportionality review, that is, compare the death sentence under review with the sentences received by codefendants in the same case. See, e.g., People v. Byron, 647 N.E.2d 946, 957– 58 (Ill. 1995). See generally Warden, supra note 9. 12 See Erickson, 641 N.E.2d at 455. In her dissent, Judge McMorrow noted: Illinois once had a well-publicized reputation for having devised post-conviction requirements that created a “procedural labyrinth . . . made up entirely of blind alleys” that effectively insulated the court from ruling on the merits of a defendant’s constitutional challenges to his criminal conviction and sentence. Our Post-Conviction Hearing Act was adopted in 1949 to overcome these shortcomings. Unfortunately, the majority’s decision harkens back to this earlier era, when technical rules of procedure were manipulated in order to avoid or preclude substantive review of the criminal defendant’s constitutional arguments. Id. at 468 (McMorrow, J., dissenting) (internal citations omitted). The purpose of the Fundamental Justice Act, enacted in 2003, was to give the Illinois Supreme Court authority to review death sentences on grounds of fairness. 720 ILL. COMP. STAT. ANN. 5/9-1(i) (West Supp. 2010); see infra Appendix A, no. 14, p. 5. The court has not yet overturned a single death sentence on the basis of the new amendment since its enactment. 2010] CAPITAL PUNISHMENT IN ILLINOIS 1305 sentences that reached the stage of federal habeas corpus under the former, more permissive federal rules were remanded for retrial or resentencing.13 In 1995, capital punishment was firmly entrenched in Illinois and appeared impregnable. Public support for the death penalty was high.14 No strong legal institutions or powerful political constituencies challenged it. The 102 elected county prosecutors, the state legislators, the attorney general, and the Governor all were strong supporters, and Illinois had begun conducting executions.15 No court or legal authority in the jurisdiction seemed likely to interfere with the steady accumulation of death sentences coming up from the county prosecutions or the inevitability of future executions. Capital cases continued to be prosecuted; death sentences were imposed in the trial courts and affirmed on appeal; although the appeals took a while, executions had begun, and the prospect was only of more impending executions.16 Given the breadth and number of the aggravating factors in the Illinois death penalty statute,17 it seemed in 1995 as if there was always a capital case being zealously investigated and prosecuted, or an execution on deck. Nothing seemed poised to interfere with that progression. By the year 2000, however, everything had changed. In 1999, Governor George Ryan had been elected, though he was at that time a supporter of capital punishment. As a legislator, Governor Ryan had voted for the reenactment of the death penalty, and in March of 1999, soon after taking office, he presided over an execution.18 However, accumulating 13 Warden, supra note 9, at 381–82 (“A landmark study found that forty-three percent of Illinois death penalty cases had been reversed on direct appeal or at the post-conviction stage as of 1995. Of the cases that graduated to the federal habeas corpus stage, the study found forty percent had been remanded for retrial or re-sentencing.”). 14 Samuel R. Gross, Update: American Public Opinion on the Death Penalty–It’s Getting Personal, 83 CORNELL L. REV. 1448, 1448 (1998) (“In 1994, when Professor Phoebe Ellsworth and I published a review of research on death penalty attitudes in the United States, we began by noting that ‘support for the death penalty [is] at a near record high.’ That finding, like most of the others we reported, has not changed. . . . ”) (footnotes omitted). 15 Warden, supra note 9, at 382 (noting that 12 of the 289 individuals sentenced to death in Illinois after Furman had been executed). 16 States that abolished capital punishment, such as New Jersey, New York, and New Mexico, either had not reinstated executions or had only executed volunteers prior to abolition. See State by State Information Database, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/state_by_state# (last visited Oct. 9, 2010) [hereinafter DPIC State by State]. Once a state begins executions, it is unlikely it will abolish the death penalty. It is almost as if the state decisionmakers feel it would be unfair to those already executed to declare the system unconstitutional once someone has been executed under it. 17 720 ILL. COMP. STAT. ANN. 5/9-1(b) (West 1993 & West Supp. 2010) 18 See Warden, supra note 9, at 406 (describing Ryan’s role in the Korkoraleis execution). 1306 LEIGH B. BIENEN [Vol. 100 egregious evidence of many wrongfully convicted persons on death row in Illinois led Governor Ryan to impose unilaterally a moratorium on executions in the state as of January 2000.19 Illinois was the first state to impose such a moratorium, but since 2000, several other states have done so.20 Then the legislature established the Capital Litigation Trust Fund in 1999, effective in 2000. This fund was created partly in response to the highly publicized exonerations and the large number of innocent people found on death row in Illinois.21 By 1999, thirteen death row inmates had been exonerated by independent investigations of the facts supporting their convictions, including revelations that their confessions were coerced, and DNA tests had identified others as the actual murderers.22 Next, in 2000 Governor Ryan appointed a high profile Governor’s Commission on Capital Punishment (Governor’s Commission or Commission). The Commission was composed of respected members of the bar with a variety of backgrounds and perspectives, and reported its findings in April 2002.23 In January 2003, Governor Ryan responded most dramatically to these findings by taking the unprecedented, historic step of commuting 161 capital sentences in one fell swoop, emptying the Illinois death row.24 These actions were completely contrary to the seemingly unshakable and widespread support for the current system of capital punishment in the state legislature, in the courts, and throughout other legal institutions in the 19 See Lawrence C. Marshall, Walter C. Reckless Memorial Lecture: The Innocence Revolution and the Death Penalty, 1 OHIO ST. J. CRIM. L. 573, 579 (2004). Explaining Ryan’s motivation, Marshall stated: Governor Ryan . . . understood that the system’s error rate in determining guilt has implications not only on the accuracy of convictions, but also on the trustworthiness of capital sentences. If a system had proven itself so flawed at answering the relatively easy, objective question of whether a defendant committed a crime, how could that system possibly be trusted with the far more complicated question of whether someone who has been convicted should be sentenced to death? . . . Governor Ryan understood that even if all 171 Illinois death row inmates were, in fact guilty, that did not mean that the broken system’s decision that they should die was one worthy of trust. 20 For an up-to-date list of the status of the death penalty in various states, consult DPIC State by State, supra note 16. 21 Barbara J. Hayler, Moratorium and Reform: Illinois’s Efforts to Make the Death Penalty Process ‘Fair, Just and Accurate,’ 29 JUST. SYS. J. 423, 424 (2008) (documenting the passage of the Capital Crimes Litigation Act following the exoneration of Anthony Porter). 22 Warden, supra note 9, at 399–407. 23 ILL. GOVERNOR’S COMM’N ON CAPITAL PUNISHMENT, REPORT OF THE COMMISSION ON CAPITAL PUNISHMENT, (2002), available at http://www.idoc.state.il.us/ccp/ccp/reports/ commission_report/index.html [hereinafter ILL. 2002 GOVERNOR’S COMM’N REPORT]. 24 One hundred fifty inmates were sentenced to life in prison without parole, three were sentenced to forty years in prison, and four were pardoned outright. Id. at 382 n.6. 2010] CAPITAL PUNISHMENT IN ILLINOIS 1307 state. The 2000 moratorium on executions and the 2003 commutations were without state or national precedent, and introduced an entirely new dynamic into the state capital punishment system.25 Both events had enormous repercussions in Illinois and elsewhere. Other states also found innocent people on death row and declared moratoriums on executions in what became a cascading, national phenomenon.26 At the same time, some state courts imposed a statewide moratorium on executions while state and federal litigation over the constitutionality of lethal injection as a mode of execution was pending.27 This called to an immediate halt executions in the state without waiting for action by the legislature or the governor. Soon the death penalty had been put on hold by courts throughout the country.28 The cost of the death penalty has recently become a salient issue nationally because many states are in budget crisis, including Illinois, which has one of the largest budget deficits in the country.29 Illinois has never conducted a systematic study of the cost of the death penalty. The 2002 Governor’s Commission focused on and found significant racial and geographic disparities in the operation of the Illinois capital punishment system, but did not address the issue of cost.30 Indeed, until recently, 25 Marshall, supra note 19, at 573 (stating that the U.S. criminal justice system is in “the midst of a revolution,” created by “the advent of forensic DNA testing and hundreds of post- conviction exonerations”). Ironically, public opinion supported both the continuance of capital punishment and the moratorium. The public apparently approved of having a death penalty but not of executing anyone. See Warden, supra note 9, at 406. 26 See Austin Sarat, Introduction: Is the Death Penalty Dying?, 42 STUD. L., POL. & SOC’Y 1 (2008). In some states, litigation challenging lethal injection was the occasion for the declaration of a de facto moratorium on executions, thus relieving the governor of the state from having to take unpopular political action. Id. 27 Deborah W. Denno, The Lethal Injection Debate: Law and Science, 35 FORDHAM URB. L.J. 701, 703 (2008); see also The Honorable Jeremy Fogel, In the Eye of the Storm: A Judge’s Experience in Lethal-Injection Litigation, 35 FORDHAM URB. L.J. 735 (2008). See generally Symposium: The Lethal Injection Debate: Law and Science, 35 FORDHAM URB. L.J. 701 (2008) [hereinafter Lethal Injection Symposium]. Also note that because a moratorium on executions had already been imposed in 2000, Illinois did not have a lethal injection challenge pending in the courts. 28 See Fernando J. Gaitan, Jr., Challenges Facing Society in the Implementation of the Death Penalty, 35 FORDHAM URB. L.J. 763, 775–79 (2008). 29 Mary Williams Walsh, Eight States Have Shortchanged Pensions, Study Finds, N.Y. TIMES, Feb. 18, 2010, at B3. A major contributor to these budget shortfalls is the drastic underfunding of pension plans. Id. (describing the $54 billion gap in Illinois between the cost of benefits promised to retirees over the next thirty years and the amount of money actually set aside). 30 The Illinois 2002 Governor’s Commission report contained an appendix by Pierce and Radelet, finding evidence of racial discrimination in the application of the death penalty in Illinois. See GLENN L. PIERCE & MICHAEL L. RADELET, RACE, REGION, AND DEATH SENTENCING IN ILLINOIS 1988–1997 (2002), available at http://www.idoc.state.il.us/ ccp/ccp/reports/techinical_appendix/section_1/a_race_region death.pdf. Subsequently, this 1308 LEIGH B. BIENEN [Vol. 100 discussions of cost were not considered relevant to the issue of the reenactment or maintenance of the death penalty, and some continue to hold the view that the higher cost of sentencing someone to death should not be a factor for legislators or prosecutors to consider.31 Yet at a time when state governments are not meeting their most basic obligations, how can the state’s policy of maintaining capital punishment alone be immune to considerations of cost and relative value? This Article references systematic cost studies from other states and reports how other states have addressed the issue of cost.32 There is no reason to think that the capital punishment system in Illinois is unique or different. What other state studies have documented emperically is also observed in Illinois: • large trial and appellate costs associated with the prosecution and appeal of capital cases, followed by capital retrials; delays in the carrying out of death sentences, with new and repeated challenges to the procedures for imposing the death penalty continually brought forward in the federal and state courts;33 • additional corrections costs associated with maintaining a special segregated death row, with its own legally mandated requirements for security and access to legal counsel, increased costs associated with long pretrial incarcerations, and special training and personnel required for staff during capital trials and after the imposition of the death penalty;34 research was published in Glenn L. Pierce & Michael L. Radelet, Race, Region and Death Sentencing in Illinois, 1988–1997, 81 OR. L. REV. 39 (2002). 31 See N.J. DEATH PENALTY COMM’N, NEW JERSEY DEATH PENALTY STUDY COMM’N REPORT 80–81 (2007), available at http://www.njleg.state.nj.us/committees/ dpsc_final.pdf (Russo, dissenting) [hereinafter NEW JERSEY REPORT]. Russo’s dissent states: The financial costs of capital punishment have been used both to justify and criticize the death penalty. I have heard many justify the death penalty on the grounds that the State should not have to spend thousands of dollars per year to maintain a convicted killer for the rest of his life. Conversely, the argument has often been made that trial and appellate costs that result from fair enforcement of capital punishment make it too expensive. Both of these arguments are utter and sheer nonsense. If the death penalty is wrong, it is wrong; if it is not wrong, it is not wrong. It doesn’t matter what it costs. The taking of a human life is something far too important to be influenced either way by costs. 32 See infra Part IV. 33 See CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, FINAL REPORT (Gerald Uelmen ed., 2008), available at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf [hereinafter CALIFORNIA REPORT] (discussed infra Part IV.C). 34 Id. at 141–42; Philip J. Cook, Potential Savings from Abolition of the Death Penalty in North Carolina, 11 AM. L. & ECON. REV. 498, 523–24 (2009). 2010] CAPITAL PUNISHMENT IN ILLINOIS 1309 • large payments to judges, court personnel, defense lawyers, state’s attorneys, and appellate lawyers on both sides to comply with the complicated and demanding requirements of capital trials and their direct and collateral appeals;35 • arbitrary patterns in the selection of cases for capital prosecution and the imposition of the death penalty within the state, wide county disparities in policies and implementation, and vast differences in how capital punishment is prosecuted between states and within individual states;36 • a decline in the number of murders unrelated to the imposition of the death penalty,37 a decline in the number of death sentences imposed, and a decline in the number of state executions during the period 2000–2009, along with an increase in the time to execution for those states which do carry out executions;38 and • a large number and proportion of exonerations relative to the number of persons sentenced to death, executed, or both, calling into question the effectiveness of the death penalty as a deterrent, as an example of rational punishment, or as an imposition of a just result.39 35 See generally ILL. 2002 GOVERNOR'S COMM’N REPORT, supra note 23. 36 See infra Part II.C for discussion of sentencing disparities; see also James S. Leibman & Lawrence C. Marshall, Less Is Better: Justice Stevens and the Narrowed Death Penalty, 74 FORDHAM L. REV. 1607, 1659 (2006). 37 Between 1995 and 2005, the murder rate fell over by 30% nationwide (8.2 to 5.5 per 100,000) and by over 40% in Illinois (10.3 to 6.0 per 100,000). U.S. CENSUS BUREAU, 2010 STATISTICAL ABSTRACT tbl.301 (2010), available at http://www.census.gov/ compendia/statab/2010edition.html (Homicide Trends: 1980 to 2005); U.S. Bureau of Justice Statistics, Crime—State Level: State-by-State and National Trends, http://bjs.ojp.usdoj.gov/dataonline/Search/Crime/State/StatebyState.cfm (select “State by State and national trends” table; then select “Illinois” under "Choose one or more States” and “Violent crime rates” under “Choose one or more variable groups”; then press “Get Table” button”). 38 Denno, supra note 27, at 710; see Theodore Eisenberg & Sheri Lynn Johnson, The Transformation of Capital Punishment, Rosenthal Lecture at Northwestern University School of Law (Sept. 14, 2010) (on file with author). 39 See Ruth D. Peterson & William C. Bailey, Is Capital Punishment an Effective Deterrent for Murder? An Examination of Social Science Research, in AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION 173 (James R. Acker, Rovert M. Bohm & Charles S. Lanier eds., 1998). On balance, deterrence hypotheses for capital punishment have fared quite poorly. Considering severity, comparative studies consistently showed a pattern of higher or similar levels of homicide in death penalty compared to abolitionist jurisdictions. . . . . . . [M]ost criminologists seem convinced that capital punishment is not a more effective deterrent for murder than imprisonment. In fact, the American Society of Criminology, the 1310 LEIGH B. BIENEN [Vol. 100 Some of these developments are chronicled here for Illinois, particularly the documented costs and the current and recurrent patterns and practices in capital case prosecution and sentencing since the establishment of the Capital Litigation Trust Fund and the passage of the 2003 reforms.40 The legal changes introduced by the Illinois legislature, the Illinois Supreme Court, police, prosecutors, and many other state agencies and principals were part of a complicated, serious effort to reform a state criminal justice system correctly perceived to be flawed.41 The states are not alone in reassessing the cost and effectiveness of current capital punishment systems. The American Law Institute (ALI), the institution charged with monitoring developing case law and the overall efficacy of criminal code provisions, has recently completed a national review of the effectiveness of the death penalty in the states.42 As a result, the ALI removed the death penalty provisions from its highly influential Model Penal Code in October 2009.43 This is momentous, as the Model Penal Code statutory formulations provided the theoretical foundation for almost all state statutes when state legislatures reenacted capital punishment after Furman v. Georgia and Gregg v. Georgia.44 This means that the ALI has now repudiated the elaborate provisions for statutory aggravating and largest professional association of criminologists in the U.S., passed a resolution in 1989 condemning the death penalty for a variety of reasons, including its lack of utility as a deterrent to murder. This consensus may in part account for the fact that only a few capital punishment and deterrence analyses have appeared in the professional literature in the last few years. In short, for many criminologists, the capital punishment and deterrence question is a dead issue. Id. at 173 (internal citations omitted). 40 See infra Part II.C. 41 For a description of the Illinois reforms, see John Cullerton, Kirk Dillard & Peter G. Baroni, Capital Punishment Reform in Illinois–A Model for the Nation, J. DUPAGE COUNTY BAR ASS’N (April 2004), http://www.dcba.org/brief/aprissue/2004/art10404.htm; infra Part II.B. 42 See AM. LAW INST., REPORT OF THE COUNCIL TO THE MEMBERSHIP OF THE AMERICAN LAW INSTITUTE ON THE MATTER OF THE DEATH PENALTY 1 (2009) [hereinafter ALI COUNCIL REPORT]. 43 Am. Law Inst., Message from ALI Director Lance Liebman (2009), http://www.ali.org/_news/10232009.htm. 44 Bienen, supra note 2, at 139. So that death sentences would no longer be “cruel and unusual in the same way that being struck by lightning is cruel and unusual,” the revised capital punishment statutes which followed Gregg introduced a structure of aggravating and mitigating factors intended to guide the discretion of the sentencer. In Gregg the Court held that the infirmities of the former capital punishment schemes had been addressed by Georgia’s revised statute. The Georgia statute restructured the decision to impose the death sentence by requiring the jury to make specific factual findings as to the presence or absence of statutorily defined aggravating and mitigating factors. Id. (footnotes omitted); see Gregg v. Georgia, 428 U.S. 153, 193 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238 (1972).