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Illinois governor's death penalty plan adds new flaws to old one

St. Louis Post Dispatch

Thursday, May 17, 2018  |  Commentary  |  By Pat Gauen

Death penalty (27a) , Governor (44)

“Murder,” explained my guide, who seemed to know little else about it.

I wondered whether the killer, who looked like a kindly grandfather, thought he had been fortunate in avoiding the electric chair.

Imagining myself innocent — for I cannot fathom the idea of murdering anyone — I always said I would rather be sentenced to death than to life in prison. It seems preferable to living out my life caged.

More importantly, capital cases appear to get a lot closer review. It seems that the legal system frets more about wrongfully executing me than wrongfully condemning me to rot for decades behind bars.

This has not been much of an issue in my home state of Illinois since Gov. Pat Quinn signed legislation in 2011 doing away with the 1977 capital punishment law. It was mistakes that killed the killings. In that interim, more death row inmates had been exonerated (20) than executed (12).

With that backdrop, Gov. Bruce Rauner this week offered a peculiar proposal .

The Republican governor used his amendatory veto power to modify a gun control bill to add a new crime category called “death penalty murder.”

It could be used against someone who killed a police officer or more than one person at a time. The peculiar part is how Rauner proposes to avoid resuming the risk of convicting innocent people. The new law would require prosecutors to prove guilt “beyond all doubt.”

We haven’t seen this before. The standard has always been proof “beyond a reasonable doubt.” Jurors largely must decide for themselves what that means. They are expected to apply common sense and life experiences to a verdict that feels certain, but are not required to determine that there is no doubt whatsoever.

The new standard is problematic. Court rules and appellate decisions are tailored to the “reasonable doubt” standard. Would a “death penalty murder” defendant walk free if the higher requirement were not met? Or would jurors have the added chore of also considering a lesser certainty for a lesser penalty?

And if that lesser penalty is life in prison, shouldn’t the higher standard of proof apply there, too? As I already pointed out, the state is effectively killing someone either way.

Moreover, dropping the death penalty meant saving money spent for specially qualified prosecutors and defense attorneys and defense investigators. Heck, executioners are even having trouble getting the lethal drugs they need. Do we want to drop all these problems back into Illinois’ lap?

And for what? I know there are plenty of people who support death sentences, which are still possible in the federal court system and 31 states. I once counted myself among those folks, until deciding that there is no measurable benefit to weigh against the cost and risks. Deterrence?

Vengeance? Rauner’s proposal doesn’t change that.

I’m second to none in appreciation of the dangers of police work. But does a death penalty protect cops? Data from the Officers Down Memorial Page, a respected and detailed online resource about law enforcement mortality, suggests maybe not.

The organization catalogs all means of duty deaths, from heart attacks to traffic crashes to shootings and stabbings. For the six years before the state abolished its death penalty, I found 17 obviously intentional killings of Illinois officers: 13 by guns and four by vehicles. In the six years following, I found just five: two by guns, two by vehicles and one by other assault. The supposed deterrent doesn’t seem to have mattered.

Also, let’s not forget that misconduct by prosecutors, unfairly stacked evidence and incompetence by defense lawyers — which have been major factors in past wrongful convictions — might as easily fool jurors into thinking a case is foolproof.

I figure that Rauner, who is seeking re-election, is really looking for political gain on a bill whose original purpose frustrates some weapons owners. Its terms would lengthen the waiting period to buy assault-type rifles to three days from one, prohibit rapid-fire attachments such as bump stocks, and put tighter reins on “dangerous” people possessing firearms.

The bill already passed, but cannot become law unless the Legislature either endorses the governor’s additions or overrides them.

Rauner has said he supports the gun restrictions. Restoring a death penalty could be a way to soften the blow of that as a concession to his party’s hard-liners .

In the end, will he find support for his changes with a continuing Democratic legislative majority that dumped the death penalty seven years ago? The answer may not be beyond all doubt, but I think it’s beyond reasonable doubt.