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86–544 PDF 2003

S. HRG. 107–907

REDUCING THE RISK OF EXECUTING THE

INNOCENT: THE REPORT OF THE ILLINOIS

GOVERNOR’S COMMISSION ON CAPITAL

PUNISHMENT

HEARING

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JUNE 12, 2002

Serial No. J–107–85

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION

RUSSELL D. FEINGOLD, Wisconsin, Chairman 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

STROM THURMOND, South Carolina 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

MITCH MCCONNELL, Kentucky 

ROBERT SCHIFF, Majority Chief Counsel 

GARRY MALPHRUS, Minority Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 24

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 138

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina, 

prepared statement .............................................................................................. 159

WITNESSES 

Bettenhausen, Matthew R., Deputy Governor for Criminal Justice and Public 

Safety, State of Illinois, and Executive Director, Illinois Governor’s Commission on Capital Punishment ................................................................................ 4

Hubert, Donald, Hubert, Fowler and Quinn, Chicago, Illinois, and Member, 

Illinois Governor’s Commission on Capital Punishment .................................. 14

Kinsella, John J., First Assistant State’s Attorney, DuPage County, Illinois .... 7

Marshall, Lawrence C., Professor of Law, Northwestern University School 

of Law, and Legal Director, Center on Wrongful Convictions, Northwestern 

University ............................................................................................................. 26

Ryan, Hon. George, Governor, State of Illinois ..................................................... 19

Scheidegger, Kent, Legal Director, Criminal Justice Legal Foundation, Sacramento, California .............................................................................................. 12

Turow, Scott, Sonnenschein, Nath and Rosenthal, Chicago, Illinois, and Member, Illinois Governor’s Commission on Capital Punishment ........................... 10

White, Druanne, Solicitor, Tenth Judicial Circuit, State of South Carolina ...... 16

QUESTIONS AND ANSWERS 

Responses of Don Hubert to questions submitted by Senator Sessions .............. 39

Responses of Don Hubert to questions submitted by Senator Thurmond .......... 42

Responses of Lawrence Marshall to questions submitted by Senator Thurmond ...................................................................................................................... 45

Responses of Kent Scheidegger to questions submitted by Senator Thurmond . 48

Responses of Scott Turow to questions submitted by Senator Thurmond .......... 51

Responses of Druanne White to questions submitted by Senator Thurmond .... 62

SUBMISSIONS FOR THE RECORD 

American Bar Association, James E. Coleman, Jr., Chair, Death Penalty 

Moratorium Implementation Project, Washington, D.C. .................................. 64

American Civil Liberties Union, Rachel King, Legislative Counsel, Washington, D.C., letter and attachments .................................................................. 66

Bettenhausen, Matthew R., Deputy Governor for Criminal Justice and Public 

Safety, State of Illinois, and Executive Director, Illinois Governor’s Commission on Capital Punishment, prepared statement ............................................. 80

Fraternal Order of Police, Steve Young, National President, Washington, 

D.C., letter ............................................................................................................ 99

Federal Law Enforcement Officers Association, Richard Gallo, President, 

Washington, D.C., letter ...................................................................................... 102

Hubert, Donald, Hubert, Fowler and Quinn, Chicago, Illinois, and Member, 

Illinois Governor’s Commission on Capital Punishment, prepared statement ...................................................................................................................... 103

Illinois State’s Attorneys Association, Chicago, Illinois, statement .................... 107

Page

IV

Jacoby, Jeff: 

Boston Globe, June 2, 2002, editorial ............................................................. 125

Boston Globe, June 6, 2002, editorial ............................................................. 128

Kinsella, John J., First Assistant State’s Attorney, DuPage County, Illinois, 

prepared statement .............................................................................................. 131

Lee, Christopher, Dallas Morning News, September 27, 2000, article ............... 139

Marshall, Lawrence C., Professor of Law, Northwestern University School 

of Law, and Legal Director, Center on Wrongful Convictions, Northwestern 

University, prepared statement .......................................................................... 142

Presbyterian Church (USA), Washington Office, National Ministries Division, 

Rev. Elenora Giddings Ivory, Director, Washington, D.C., letter .................... 148

Rubin, Paul H., Atlanta Journal-Constitution, March 13, 2002, editorial .......... 150

Ryan, Hon. George, Governor, State of Illinois, prepared statement .................. 151

Scheidegger, Kent, Legal Director, Criminal Justice Legal Foundation, Sacramento, California, prepared statement ........................................................... 155

Turow, Scott, Sonnenschein, Nath and Rosenthal, Chicago, Illinois, and Member, Illinois Governor’s Commission on Capital Punishment, prepared statement ...................................................................................................................... 171

White, Druanne, Solicitor, Tenth Judicial Circuit, State of South Carolina, 

prepared statement .............................................................................................. 180 

(1)

REDUCING THE RISK OF EXECUTING THE INNOCENT: THE REPORT OF THE ILLINOIS 

GOVERNOR’S COMMISSION ON CAPITAL 

PUNISHMENT 

WEDNESDAY, JUNE 12, 2002

UNITED STATES SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The subcommittee met, pursuant to notice, at 9:04 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Russell D. Feingold, 

chairman of the subcommittee, presiding. 

Present: Senators Feingold and Durbin. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. This hearing will come to order, and good 

morning. 

Welcome to this hearing of the Senate Judiciary Committee, Subcommittee on the Constitution, and I want to thank everyone for 

coming here so early this morning. We are starting an hour earlier 

than usual, Senate time, in order to complete this hearing by 11:00 

a.m., when there is a Joint Session of Congress that will be convened to hear an address from the Prime Minister of Australia. 

This hearing today will explore the bold, unique, yet entirely reasonable response by Governor George Ryan and the people of Illinois to flaws in the current administration of the death penalty, 

most notably, the risk of executing innocent people. 

Earlier this year, our Nation hit what I would have to regard 

and I think most people would regard as a very troubling milestone: the 100th innocent person in the modern death penalty era 

was exonerated and released from death row. A few weeks later, 

we hit 101. During this same period, there have been close to 800 

executions at the State and Federal levels. This means that the 

system is so fraught with error that, for every eight executions, 

there has been one person on death row later found innocent in the 

modern death penalty era. Of course, for every innocent person 

wrongfully convicted, a guilty person has likely gone free and may 

still be able to commit more crimes. 

The 100th death row inmate to be exonerated is Ray Krone. Mr. 

Krone was wrongfully convicted and served 10 years in the Arizona 

prisons for a murder he did not commit, before he finally walked 

out a free man. Faulty forensic analysis and circumstantial eviVerDate Mar 21 2002 13:37 May 01, 2003 Jkt 086617 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\HEARINGS\86544.TXT SJUD4 PsN: CMORC
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dence led to Mr. Krone’s conviction. But a DNA test set him free 

and points to another man as the killer. Mr. Krone is in the audience today, and, Mr. Krone, thank you for joining us today. Where 

is Mr. Krone? Thank you very much. 

Two other men who share the same dubious distinction are also 

with us today: Kirk Bloodsworth and Juan Melendez. Mr. 

Bloodsworth served 9 years in the Maryland prisons, including 

some time on death row, for a rape and murder he did not commit. 

Mr. Bloodsworth was convicted primarily on the basis of faulty eyewitness testimony. Like Mr. Krone, a DNA test was the key to his 

freedom. It is good to see you here, sir. 

Mr. Melendez sat on death row in Florida for almost two decades 

before a court finally overturned his murder conviction. The court 

cited the prosecution’s failure to provide the defense with critical 

evidence and the lack of physical evidence linking him to the crime. 

After the court’s decision, State prosecutors announced that they 

would drop the charges against him. Mr. Melendez was released 

earlier this year. Mr. Melendez, thank you for joining us. Where is 

Mr. Melendez? Thank you for being here. 

These men—Mr. Krone, Mr. Bloodsworth, Mr. Melendez—and 

the other 98 innocent former death row inmates are the reason we 

are having today’s hearing. These are not abstractions. They are 

real people, innocent men who suffered for years under the very 

real possibility of being put to death for crimes that they did not 

commit. 

There is no question that those who perpetrate heinous crimes 

should be punished and punished severely. And there is no question that the family and friends of murder victims bear an awful, 

painful burden for the rest of their lives. Society owes them our 

most steadfast effort to bring the perpetrators to justice and sentence them severely. But society also has a responsibility to ensure 

that only the guilty are convicted and punished. 

This hearing will explore the steps that one State—Illinois—has 

taken to address this difficult dilemma. In Illinois, after 13 death 

row inmates were exonerated and released, as compared with the 

12 executions carried out after the death penalty was reinstated in 

1977, a consensus emerged among both death penalty opponents 

and proponents that the State’s death penalty system was broken. 

Two years ago, on January 31, 2000, Governor Ryan took the courageous step of placing a moratorium on executions in Illinois. 

Governor Ryan then created an independent, blue-ribbon commission of present and former prosecutors, public defenders, a 

former Federal judge, and various distinguished Illinois citizens, 

including one of our former colleagues and my dear friend, Senator 

Paul Simon. Governor Ryan instructed this Commission to review 

the State’s death penalty system and to advise him on how to reduce the risk of executing the innocent and ensure fairness in the 

system. Governor Ryan’s decision to suspend executions and create 

a commission sparked a national debate on the fairness of the current administration of the death penalty. 

After 2 years of work, the Illinois Governor’s Commission on 

Capital Punishment completed its task and released its report in 

April of this year. The Commission set forth 85 recommendations 

for the reform of the Illinois death penalty system. These recVerDate Mar 21 2002 13:37 May 01, 2003 Jkt 086617 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\HEARINGS\86544.TXT SJUD4 PsN: CMORC
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ommendations address difficult issues like inadequate defense 

counsel, execution of the mentally retarded, coerced confessions, 

and the problem of wrongful convictions based solely on the testimony of a jailhouse snitch or a single eyewitness. The Commission’s work is the first comprehensive review of a death penalty 

system undertaken by a State or Federal government in the modern death penalty era. We will hear more about the Commission’s 

work and its recommendations in this hearing. 

The risk of executing the innocent and other flaws in the administration of the death penalty are not unique to Illinois. The 101 

innocent people who were sent to death row and later exonerated 

come from 24 different States. In addition to Illinois, exonerations 

of people sentenced to death have occurred in Alabama, Arizona, 

California, Florida, Georgia, Idaho, Indiana, Louisiana, Maryland, 

Massachusetts, Mississippi, Missouri, Nebraska, Nevada, New 

Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South 

Carolina, Texas, Virginia, and Washington. 

Just last month, Governor Parris Glendening of Maryland placed 

a moratorium on executions in his State to allow a study of racial 

disparities he ordered 2 years ago to be completed. And I commend 

Governor Glendening for his leadership, and I hope that other Governors follow the lead of Governor Ryan and Governor Glendening. 

But I also believe that Congress has an important responsibility 

to ensure that innocent people are not executed and that constitutional protections are respected in the administration of capital 

punishment across the country. 

I have introduced a bill that would apply essentially the Illinois 

model to the rest of the Nation. The National Death Penalty Moratorium Act, Senate bill 233, would enact a moratorium on Federal 

executions and urge the States to do the same, while a National 

Commission on the Death Penalty examines the fairness of the administration of the death penalty at the Federal and State levels. 

I do not expect our witnesses today to discuss or debate the provisions of my bill. Rather, this hearing is intended to educate Congress and the American people about the Illinois experience with 

a moratorium and review of the death penalty system. 

This morning we will have two panels of witnesses. Illinois Governor George Ryan is the sole witness on panel one. On panel two, 

we will have three members of the Illinois Commission as well as 

outside experts and prosecutors from Illinois and South Carolina. 

To accommodate Governor Ryan’s schedule, who will be appearing 

over video, however, we will proceed first with panel two. At approximately 10:00 a.m., we will take a brief break from panel two 

and turn to Governor Ryan. Following Governor Ryan’s statement 

and any questions for the Governor, we will return to panel two, 

and I want to thank my colleagues and the panel two witnesses for 

their flexibility. 

Senator Thurmond, the ranking member of the subcommittee, 

has submitted a statement for the record which will be entered into 

the record without objection. 

[The prepared statement of Senator Thurmond appears as a submission for the record.] 

Chairman FEINGOLD. And as I understand it, there will be no 

live opening statement from the Republican side. Is that correct? 

4

And, therefore, I believe we can move forward to the panel that 

is already assembled in front of us. 

Our first witness, also appearing through video, is Matt 

Bettenhausen. He is the Illinois Deputy Governor for Criminal Justice. Mr. Bettenhausen is a former attorney with the United States 

Attorney’s Office for the Northern District of Illinois. He served as 

Executive Director of the Illinois Governor’s Commission on Capital 

Punishment. I want to thank you, Mr. Bettenhausen, for taking the 

time to testify before the committee today during what I know is 

a very important time for the Illinois Legislature, and you may proceed. 

STATEMENT OF MATTHEW R. BETTENHAUSEN, DEPUTY GOVERNOR FOR CRIMINAL JUSTICE AND PUBLIC SAFETY, 

STATE OF ILLINOIS, AND EXECUTIVE DIRECTOR, ILLINOIS 

GOVERNOR’S COMMISSION ON CAPITAL PUNISHMENT 

Mr. BETTENHAUSEN. Thank you, Chairperson Feingold and distinguished members of the United States Senate. First of all, let 

me thank you for accommodating the Governor’s and my schedule. 

As you know, the Governor had to call the General Assembly into 

special session because of the budget problems that we are having 

here in Illinois. And given those problems, I certainly would much 

more prefer to be there in Washington, D.C., with you. But I am 

honored and privileged to be before you this morning to talk about 

the work of the Governor’s Commission on Capital Punishment, 

and I think it is very appropriate that we are before this committee 

as you have demonstrated that you have been champions of fairness and have helped to ensure that justice is in our justice system. 

Senator Feingold, as you know, it was approximately a year and 

a half ago that I was working with your staff along with staff of 

Congressman LaHood, Illinois’ very own Congressman LaHood, in 

drafting the Innocence Protection Act that you have introduced and 

Congressman LaHood has sponsored. As you know, some of those 

provisions were modeled after the reforms that we have already 

made here in Illinois. And one of those important provisions, as 

Senator Feingold pointed out, is DNA testing. An important provision that we have had here in Illinois—and it is in the Innocence 

Protection Act—is to provide for post-conviction DNA testing. 

As you know, Illinois’ track record since reinstating capital punishment in 1977 speaks for itself. It does not speak well for itself. 

In that time, we have had 12 individuals executed; 13 other individuals have been released and exonerated. Five of those 13 were 

released based on post-conviction DNA testing. It is an important 

tool for not only bringing the wrongfully convicted but also accurately convicting the guilty. 

I am happy to be here to discuss the work of the Governor’s Commission, which conducted extensive research and analysis of Illinois’ capital punishment system from the initial police investigation to trial, appeal, and post-conviction review. 

As Senator Feingold has noted, there are some 85 recommendations in our report for reform, in addition to the significant reforms 

that we have already made in Illinois, such as providing for postconviction DNA testing, providing compensation for those who have 

been wrongfully convicted, providing a capital litigation trust fund 

5

to provide moneys to defense attorneys and prosecutors so that 

cases are investigated thoroughly and accurately from the beginning and to make sure that they are tried properly in the first instance. We actually give a framework and highlight some of the important recommendations of the Commission. 

Obviously, with the 85 recommendations and the 2 years of work 

that the panel put together, I can only briefly hit some of the more 

important recommendations that the Commission is making. 

As you know, one of the things that we studied is the disparities 

and potential discrimination that you see in the capital punishment 

system. Here in Illinois, we have 102 counties. That means there 

are 102 different decision makers who decide whether a defendant 

will get the death penalty. That results in disparity in treatment. 

You can have an individual, the same crime, like facts, who could 

get a 40-year sentence in southern Illinois and could get the death 

penalty in northern Illinois. We did that study, and we found that 

there was disparity in sentencing in our capital punishment system 

here in Illinois based both on geography as well as the race of the 

victim. 

Based on that as well as the Governor’s concern, while not trying 

to impinge or impugn any of the State’s attorneys and their prerogatives, the Governor—this is one State, and he has to look at one 

State, and when he looks at these individuals who have been sentenced to death, we must have a uniform system. An important recommendation of the Commission is that we have a statewide panel 

that reviews any prosecutor’s decision to seek the death penalty, 

and that panel must sign off on each of the decisions that are 

made. It is very similar to the Federal system where the United 

States Attorney General must sign off on each of the—on any decision in which the death penalty is sought. 

As you noted, we have also recommended that Illinois ban the 

imposition of the death penalty on those who are mentally retarded. We hope that that will be enacted soon, and perhaps it may 

not be enacted, as you know, because the Supreme Court has several cases before it currently considering whether, in fact, we have 

become a more enlightened society that cannot tolerate the execution of the mentally retarded. 

We have also recommended that we significantly reduce the current list of death eligibility factors. When the Supreme Court allowed capital punishment to be reinstated after having found it unconstitutional because too many death cases, too many murder 

cases qualified, we have found here in Illinois that basically we 

have expanded in that 25-year time period the eligibility factors so 

that almost any murder could qualify for the death penalty, could 

put it not only in constitutional jeopardy but also the concerns of 

both prosecutors, defense attorneys, everyone uniformly that the 

Commission heard from, everybody said there were too many death 

eligibility factors and that we should reserve, if we are going to 

have capital punishment, for those cases that involve the most heinous of crimes. 

We also said and recommended that no person be sentenced to 

death based solely on the uncorroborated testimony of a single eyewitness or accomplish or jailhouse snitch. 

6

We also found in our study of the 200-some death cases since the 

death penalty was reinstated here in Illinois that jailhouse informants, snitches, played an important role in some of the wrongful 

convictions. Therefore, we made a number of recommendations, 

such as a reliability hearing that should be had before the testimony is heard, very similar to the kind of hearing that courts go 

through before allowing expert testimony. 

We also believe that juries must be instructed about the dangers 

of this testimony and that there must be full disclosure of the benefits conferred on those individuals for their testimony. 

While we have a number of jurisdictions that have agreed to voluntary videotaping of statements and also some who tape the entire interrogation process, the Commission has recommended that 

that be the rule rather than the exception here in Illinois. 

We also believe and recommend that trial judges should be required to concur or reverse a jury’s death sentence verdict. That allows the court to consider in making pre-trial rulings that the court 

has not heard all of the evidence, does not understand how all—

gives them the chance to review and revisit those issues to make 

sure that the death sentence is an appropriate sentence and signing off on it. 

In addition, Illinois does not allow for proportionality review and 

does not provide for it by the Illinois Supreme Court. Again, we believe and recommend that the Illinois Supreme Court should conduct proportionality reviews and make sure that the sentence is 

not excessive or disproportionate to the penalty imposed in similar 

cases. 

We also found in our study of the investigation of cases of wrongful convictions that eyewitness testimony, the unreliability of eyewitness testimony could be rectified by changing eyewitness identification procedures. We have adopted some of the recommendations 

created by the Department of Justice in researching on how to do 

line-up procedures and photo spread procedures to make sure that 

we are not trying—but to assure the accuracy of eyewitness testimony. 

We have also had a number of confusing jury instructions in the 

State, and the juries are not instructed about all potential sentences. We believe and we have recommended on this Commission 

that the jury be told that information so that there isn’t improper 

speculation and that we really improve the truth-seeking process. 

I have just touched on a number of the important recommendations that we have made, and I hope that that gives a framework 

of the kinds of issues that we are looking at and the kinds of recommendations that we have made. 

I thank you for the opportunity to be here today. 

[The prepared statement of Mr. Bettenhausen appears as a submission for the record.] 

Chairman FEINGOLD. Thank you very much, Mr. Bettenhausen. 

I appreciate your discussion of what has been done in Illinois, and 

I am told this may be the first time that the committee has used 

this video approach for listening to a witness, and I think it worked 

out well, and I want to thank the recording studio and the technical people for making it possible to hear you and, later on, GovVerDate Mar 21 2002 13:37 May 01, 2003 Jkt 086617 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\HEARINGS\86544.TXT SJUD4 PsN: CMORC
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ernor Ryan. And we will have some questions for you later. Thank 

you very much. 

Now we will move on to John Kinsella, who is the First Assistant 

State’s Attorney in DuPage County, Illinois, and he has served as 

an Illinois prosecutor for 21 years. Mr. Kinsella is currently the 

first vice president of the Illinois Prosecutors Bar Association, and 

he has taught and lectured for the National College of District Attorneys, the Illinois State’s Attorneys Association, and the Illinois 

Appellate Prosecutor’s Office. We welcome you to the panel today, 

and you may proceed. 

STATEMENT OF JOHN J. KINSELLA, FIRST ASSISTANT STATE’S 

ATTORNEY, DUPAGE COUNTY, ILLINOIS 

Mr. KINSELLA. Thank you, Senator. First of all, it is an honor 

and a privilege, certainly, to be here, and it is a rather daunting 

task to represent all the men and women of the prosecution profession in Illinois, but I will do my very best to do that. 

As you have indicated, I have been a prosecutor for approximately 21 years and have handled personally several death penalty 

cases at trial level as well as procedurally. In fact, the last person 

executed in Illinois was a case I handled at the end of those proceedings, Andrew Kokoraleis, who was convicted of being involved 

in the mutilation and murder of 16 women, and he was the last 

person executed in Illinois on March 17, 1999. 

First of all, I want to make the point that the death penalty in 

Illinois is still the law. There are still juries hearing death penalty 

cases. Death sentences are being handed out, and the Illinois Supreme Court is currently affirming death sentence cases. So the 

moratorium—and I should probably address that first. I think you 

suggested that it was welcomed by many. In fact, I think I can 

speak on behalf of prosecutors who, I think for the most part, objected to the concept. And the basis is this, Senator: that there 

have been about approximately 300 persons since 1977 sentenced 

to death. There are approximately 170 on death row currently. And 

while 12 have been executed, there are 10 cases from which 13 individuals who at one time were sentenced to death were later either acquitted or, in fact, the cases were dismissed. We do not believe generally as prosecutors that this reflects that the system is 

broken. Those cases, some of them, are very troubling and they certainly should be examined and reviewed. But we believe that the 

overwhelming majority of police officers and prosecutors in Illinois 

do an outstanding job seeking justice and sought appropriate sentences in these cases. 

In essence, the moratorium has put a hold on the progress of all 

these cases that are currently in the system. The moratorium, the 

Illinois Supreme Court has already ruled the new rules that have 

been put in place before the Commission report or any resulting 

changes do not apply to these other cases. So, in essence, the cases 

have progressed to the point, they have gone through all of the 

myriad levels of review, have been on hold since the time of this 

moratorium, we believe, prosecutors believe that each and every 

one of these cases are unique, different, and should be examined 

on their own merits and that the system that we are talking about 

being broken is our Anglo–American system of justice, our method 

8

of finding truth. This is not about the death penalty per se in Illinois or the Illinois statute. The cases that have been cited as 

wrongful convictions or innocent persons are cases which were 

tried under the rules that apply certainly in Illinois and, for the 

most part, are uniformly the same across this country. 

And to the extent that a case was tried which someone concludes 

resulted in an erroneous verdict, that is troublesome, should be 

looked at, and our system of justice should be constantly under review, constantly being examined, constantly being changed. And 

that is our history. This is not a stagnant process. 

In fact, the law in Illinois has changed dramatically since this 

debate started in 1999, and I would suggest that the changes imposed by rules of the Supreme Court address the most glaring 

problems that were talked about when this debate began, which 

was a grossly underfunded defense, incompetent attorneys, judges 

who were not properly trained, and prosecutors who, frankly, in 

some instances created their own problems by also being improperly trained. 

So these issues—this is not a stagnant question. We took a serious look at the death penalty in Illinois over the last several years. 

The system has changed dramatically. We do not believe that as 

a result of these 13 cases that all death penalty judgments handed 

down in Illinois are somehow flawed. In fact, many of these people, 

Senator, pled guilty to those crimes. There is not a serious question 

in many of these cases of a claim of actual innocence. And yet they 

are all thrown into the same hopper with cases which were—where 

there are claims of actual innocence. 

Frankly, the question that troubles me as well is that we decide 

to say that any person ever having been convicted and sentenced 

to death and later acquitted was, in fact, innocent. In fact, one of 

the cases that is cited, one of the 13, the Illinois Supreme Court 

specifically said it wasn’t saying that. And yet it is quoted as being 

a case in which the defendant was found innocent. The Supreme 

Court, and I quote, said, ‘‘While a not-guilty finding is sometimes 

equated with a finding of innocence, that conclusion is erroneous.’’ 

Courts do not find people guilty or innocent. 

Now, I am not suggesting that some of these people aren’t, in 

fact, innocent. Some of them clearly are, and we can debate which 

ones. And, frankly, if it is one or 13, it doesn’t matter. It certainly 

raises questions and issues that we need to address, and we welcome that debate. 

But I also believe in the rhetoric of the emotions of the death 

penalty, which is certainly an emotional issue, we sometimes get 

beyond a true objective examination of the facts, and that troubles 

prosecutors in Illinois. 

We believe the system should be examined, should be reviewed, 

welcome the Commission’s report. Without taking too much more 

time, we believe the Commission’s report was underrepresented 

from prosecutors. There was only one active prosecutor on the 

Commission. As well, there was not a single police officer, and 

many of these proposals which we find troublesome deal with police 

procedure and police practice. And to have no one from that profession on the Commission we believe is a problem. 

9

Having said that, the Illinois State’s Attorneys Association has 

issued a response indicating disagreement with only 18 of the proposals. So the reality is that the overwhelming majority of the proposals are supported by prosecutors, and the debate on the death 

penalty in the system is one which we should all—we should not 

just do this as a result of a newspaper story and a highlighting of 

driving public policy by the media. We should do this constantly. 

And I think if we do, the system will be in reality and in perception 

what we believe it to be, which is fair, just, and supportive of the 

overall majority view of the death penalty, that it is appropriate in 

some of the most brutal cases. 

Thank you. 

[The prepared statement of Mr. Kinsella appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you, Mr. Kinsella. Although I don’t 

agree with the direction of your remarks, I appreciate the tone, and 

I want to say that I agree that these problems with the criminal 

justice system are not confined to the death penalty, and I am concerned about those aspects of it. But I think any reasonable person 

would agree, given the end of the story in the death penalty, that 

it is particularly important that these things be resolved, first and 

foremost, in that area. And that is why I admire what Governor 

Ryan did. 

I also appreciate your candor with regard to the issue of whether 

everybody on this list of 101 was actually innocent. I think we 

could debate that, but I am pleased that you concede that surely 

many of these people were obviously and demonstrably innocent—

in fact, several of them are in this room—and that that is not acceptable. And I appreciate that as well. 

I should have said that there is a 5-minute limit on testimony. 

I didn’t apply it to the first two, but any help you can give me in 

this regard would be appreciated because we have an absolute limit 

on time today. 

Without objection, at this time I enter into the record statements 

and supporting materials from the ACLU, Amnesty International, 

the National Association of Criminal Defense Lawyers, and the 

Presbyterian Church Washington Office. 

Chairman FEINGOLD. Our next witness is Scott Turow, probably 

best known as an author of best-selling legal novels, is a member 

of the Illinois Governor’s Commission on Capital Punishment. Mr. 

Turow served as an Assistant United States Attorney in the Northern District of Illinois for several years before joining the law firm 

of Sonnenschein, Nath and Rosenthal, where he is currently a partner. 

And I should confess, Mr. Turow, you were an upperclassman at 

the law school we both attended when I came there, and when I 

read your book, I almost turned around in terror that it would really be like that. And it was pretty accurate. 

Great book, great start to your writing career, and we are honored to have you here, Mr. Turow. You may proceed. 

10

STATEMENT OF SCOTT TUROW, SONNENSCHEIN, NATH AND 

ROSENTHAL, CHICAGO, ILLINOIS, AND MEMBER, ILLINOIS 

GOVERNOR’S COMMISSION ON CAPITAL PUNISHMENT 

Mr. TUROW. Thank you, Mr. Chairman. I am deeply honored to 

be here to testify before you today, and I am especially honored to 

be representing Governor Ryan’s Commission on Capital Punishment. 

I want to start in my role as a representative of that Commission 

by responding to some of the remarks made by Mr. Kinsella and 

which I see repeated in some of the statements, particularly those 

which regard our Commission as biased. 

There was a statement made by Mr. Kinsella that only one active 

prosecutor was among the 14 people on the Commission. That, in 

fact, is not true. Kathy Dobrinie was the State’s Attorney for Montgomery County when she was appointed. In addition, Michael 

Waller, of course, was not only the State’s Attorney of Lake County 

but also the president of the State’s Attorneys Association. In addition, my colleague Andrea Zopp, who is now in-house at a large corporate entity, was formerly the First Assistant State’s Attorney for 

Cook County. William Martin was the prosecutor of perhaps one of 

the most if not the most famous serial murder case in Illinois, that 

of Richard Speck. And, in fact, nine of the 14 of us had prosecutorial experience. 

Included in that group, although Mr. Kinsella says there was not 

a single police official or representative on the Commission in his 

written statement was Mr. Thomas Needham, who, in fact, was the 

general counsel of the Chicago Police Department. Matt 

Bettenhausen, who has testified today, was and is the Director of 

Homeland Security for the State of Illinois, and even I sit on the 

Illinois State Police Merit Board. So I reject the characterizations 

of the membership of the Commission as unbalanced. 

Similarly, I am more troubled than Mr. Kinsella by a system 

which has exonerated more people than it has executed. There 

have been 12 executions in the State of Illinois since the death penalty was re-established and 13 exonerations of people on death row. 

And I have always regarded debates about whether somebody is 

factually or legally innocent as extremely inappropriate for lawyers. We exist in a system which places the burden on the State 

to prove guilt beyond a reasonable doubt, and when the State fails 

in that regard, all persons are entitled to be clothed with the enduring presumption of innocence. And it is not appropriate to get 

into the kinds of debates that I think are being raised by some of 

the comments made here. 

Mr. Kinsella also comments that the observations of the Commission would apply generally to everything in the criminal justice 

system and perhaps bring all the results into question. Certainly 

we emphasize that some of the reforms that we were recommending should have been applied—should be examined for possible general application. But the fact, Mr. Chairman, is that, as 

the Supreme Court has often commented, death is different, and I 

make reference in my full written statement to a case that was 

handled by Mr. Kinsella’s office. I represented a young man named 

Alex Hernandez who was twice convicted—once convicted and sentenced to death; subsequently, after the case was reversed due to 

11

a finding of deliberate prosecutorial misuse of Bruton-protected 

statements, Mr. Hernandez and his co-defendant, Rolando Cruz, 

who was represented by Professor Marshall, Cruz was resentenced 

to death after a second trial, Hernandez to 80 years. And I am sure 

the members of the Commission know that both men were ultimately freed. 

Among the most compelling reasons for freeing them, of course, 

was that a man named Brian Dugan had confessed to the murder 

for which Cruz and Hernandez had both been sentenced to death. 

The corroboration of Dugan’s statement is well documented in the 

record, and despite that, the office that Mr. Kinsella now sits as 

first assistant in persisted in the prosecution of these two men for 

10 years after another man who ultimately proved to be a DNA 

match, after that man had given a well-corroborated confession to 

the crime which, in fact, was supported by the investigation of the 

Illinois State Police. 

And the lesson I draw from that, in contrast to what Mr. 

Kinsella has said, and perhaps other representatives on the panel 

today, is this—and I think it is the most important message I have 

for the subcommittee. I have been struck in the years that I have 

spent pondering the problem of capital punishment—to which, by 

the way, I might add, I am not morally opposed. I have been struck 

by the paradox. Capital punishment is reserved for the worst of the 

worst, and it is those murders which, by their character, most outrage the conscience of the community. And that fact, therefore, 

makes for the greatest challenge to our capital punishment system, 

because capital punishment is invoked in cases where emotion is 

most likely to hold sway and where rational deliberation is most 

problematic for everyone—for investigators, for prosecutors, for 

judges, for juries. We place an enormous burden on police officers 

and prosecutors when we take hideous crimes and say to them you 

must find the killer, you must protect all of us. 

And because this is a system which in rare instances tempts bad 

faith, it is a system that I believe merits the enhanced safeguards 

that our Commission has proposed. 

Deputy Governor Bettenhausen has illuminated some of those, 

and I need not go on about that at length. But I think that we have 

to recognize the inflammatory nature of capital crimes and say at 

the threshold that death and capital punishment is very different 

and requires far more thorough safeguards. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Mr. Turow appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you, Mr. Turow. I appreciate your 

comments, especially in light of the fact that, as you indicated, you 

are not necessarily an opponent of the death penalty per se. And 

this distinction that you made in terms of the use of the word ‘‘innocent,’’ every single one of these 101 people are, by definition, according to our legal system, innocent. 

Mr. TUROW. Yes, sir. 

Chairman FEINGOLD. Period. 

Mr. TUROW. Yes, sir. 

Chairman FEINGOLD. That is our system. 

12

I would add that we also know that a great percentage of them 

didn’t do it. So if somebody doesn’t like the legal technicalities, we 

know for sure that in quite a number of these cases, they didn’t 

do it. And I think it is very important to constantly keep those two 

things in mind, and I appreciate your testimony. 

Without objection, I will enter into the record at Senator Thurmond’s request a letter from the Federal Law Enforcement Officers 

Association. 

Chairman FEINGOLD. And now we are pleased to turn to Kent 

Scheidegger, who is Legal Director of the Criminal Justice Legal 

Foundation in Sacramento, California. Thank you for being here, 

sir, and you may proceed. 

STATEMENT OF KENT SCHEIDEGGER, LEGAL DIRECTOR, 

CRIMINAL JUSTICE LEGAL FOUNDATION, SACRAMENTO, 

CALIFORNIA 

Mr. SCHEIDEGGER. Thank you very much, Mr. Chairman. I appreciate the opportunity to speak today. 

The correct identification and the sufficient punishment of murderers is, of course, a matter of great importance. There is no more 

important function of the State governments than the protection of 

its citizens from murder. The performance of this function, while 

protecting the actually innocent, deserves the greatest attention 

and care. Regrettably, there has been a great deal of misleading information circulating on the subject of capital punishment, so I 

welcome the opportunity to at least make a start today. 

I very strongly disagree with Mr. Turow that, in the context of 

this proceeding, it is inappropriate for us to consider whether a 

person is factually innocent or not. In the legislative branch, it is 

entirely appropriate, considering matters of policy, to consider 

whether these 101 cases are innocent people who at one point were 

wrongly convicted or guilty people who have now been wrongly 

freed, because there are many falling in that category. 

You mentioned California, Senator. There are no cases in California of persons proven innocent. One of the most notorious cases, 

the case of Jerry Bigelow, the jury on the second trial found him 

guilty of the robbery in which the victim was killed, which by itself 

is sufficient to make him guilty of murder. It also found it true that 

he intended to kill the victim, and yet it wrongly and inexplicably 

acquitted him of murder. Our system of justice does give the defendant the benefit of the acquittal in that situation, but that does 

not make him an innocent man wrongly convicted. 

So the 101 number is wrong if it is asserted as people actually 

innocent, and that is the policy basis, as opposed to the legal basis, 

on which it is so often asserted, and it ought not be considered for 

that purpose. 

The focus of today’s hearing is on the actual guilt or innocence. 

This change of focus is welcome and long overdue. For three decades, the American people have suffered inordinate delay, exorbitant expense, and extended litigation over issues having nothing to 

do with guilt, which are not in the Constitution as originally enacted, and which involve sentencing policy decisions of dubious 

merit. 

13

Congress should certainly be concerned with further reducing the 

already small possibility of conviction of the innocent regardless of 

whether the sentence is death or life in prison. At the same time, 

it should take care not to exacerbate and, if possible, reduce the interminable delays and erroneous reversals which are presently the 

norm in the vast majority of capital cases that involve no question 

whatever of the identity of the perpetrator. 

The report of the Commission unfortunately is lacking in the balance needed for this important question. With regard to the balance by former prosecutors being on the panel, it reminds me of the 

words of former Democrat Ronald Reagan, ‘‘There you go again.’’

I am particularly disturbed by the way in which they brush off 

deterrence as a policy basis. There are a flurry of recent studies 

confirming or at least supporting the deterrent effect of capital 

punishment and, in particular, one from the University of Houston 

which indicated a loss of 200 lives as a result of a temporary halt 

in executions in the State of Texas. There are, of course, studies 

to the contrary. Even so, any public official considering a halt to 

or severe restriction of capital punishment must consider the very 

substantial possibility that such an action will result in the deaths 

of a great many innocent people. 

One of the recommendations is to narrow the scope of offenses 

eligible for capital punishment. I agree that some narrowing is in 

order. But the drastic reduction proposed by the Commission is not 

warranted by any concerns of actual innocence. In particular, the 

recommendation that the murder of a rape victim by the rapist not 

be a capital offense is repugnant and ought to be rejected out of 

hand. This is the kind of case where deterrence is most needed because a rapist facing a long prison sentence otherwise has very little incentive not to kill the victim. It is also the kind of case where 

DNA evidence is most likely to eliminate any doubt of identity. 

On a positive note, I note that the report does acknowledge that 

many of the reversed judgments in capital cases are based on 

things that have nothing to do with the trial and are the result of 

new rules created by the State and Federal Supreme Courts. This 

is a very important consideration for the Congress to consider when 

it is confronted with data of the so-called error rate in capital 

cases. The recent studies out of Columbia define ‘‘serious error’’ as 

any ground on which a conviction is reversed. That would include 

Booth v. Maryland for the so-called error of introducing victim impact statements, which we now know is not error. It includes cases 

where a trial judge gave an instruction that had been expressly approved by the United States Supreme Court at the time of the trial 

and was later disapproved. So the rate of so-called error should not 

cause us to lack confidence in our trial system. Instead, these cases 

represent the cost of the fallibility of the review process and of retroactive rulemaking by judicial decision rather than by legislation. 

I am going to be nearly out of time. I would like to say, though, 

that I also think we should change the process of review so that 

the inevitable claim of ineffective assistance of counsel is always 

reviewed immediately after the trial. At that point everybody is 

still involved, still knows what they did, the defense lawyer has not 

moved on to a later stage of his career and may have more incenVerDate Mar 21 2002 13:37 May 01, 2003 Jkt 086617 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 C:\HEARINGS\86544.TXT SJUD4 PsN: CMORC
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tive to defend himself rather than fall on his sword, which is a 

problem. 

As a matter of federalism, if Congress wants to change State procedures, there is a question as to whether it can and whether it 

should. I suggest that an incentive arrangement be adopted for 

whatever reforms Congress deems necessary to reduce litigation in 

those areas having nothing to do with guilt in exchange for whatever improvements Congress believes is necessary in the guilt determination. 

I also believe if Congress sets up a commission, one of the goals 

stated in the commission should be to reduce the median time from 

sentence to execution to 4 years rather than the 15 that is typical 

today. That is sufficient time to identify those few cases involving 

real questions of innocence and to resolve any major issues in the 

case, but also give us an effective death penalty with the benefits 

that would flow from that. 

I will have a corrected written statement which I will send to the 

committee staff. Thank you very much for your attention. 

[The prepared statement of Mr. Scheidegger appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Mr. Scheidegger. 

The next witness is Donald Hubert, a member of the Illinois Governor’s Commission on Capital Punishment. He is currently in private practice and is a fellow of the International Academy of Trial 

Lawyers and the American College of Trial Lawyers. He serves, by 

appointment of the Illinois Supreme Court, as chairman of the 

Court’s Committee on Professional Responsibility and is a former 

president of the Chicago Bar Association. 

Mr. Hubert also served as a State prosecutor in the Special Prosecutions Unit of the Illinois State Attorney General’s Office. We 

welcome you to the panel, and thank you, and you may proceed. 

STATEMENT OF DONALD HUBERT, HUBERT, FOWLER AND 

QUINN, CHICAGO, ILLINOIS, AND MEMBER, ILLINOIS GOVERNOR’S COMMISSION ON CAPITAL PUNISHMENT 

Mr. HUBERT. Thank you, Mr. Chairman. I echo the remarks so 

far made that this is indeed a tremendous honor. And may I say 

as an aside how heartened I am to see so many young people sitting behind you who really do represent the future of the country. 

It is a sight to behold. 

I am here only to share with you my experiences with the Governor’s Commission, all towards the end of helping you to see why 

he appointed us in light of the problems that we were having with 

exonerations in Illinois. 

Let me start by saying that I would like to officially and publicly 

say thank you to Governor Ryan. This is the report that was 

issued, and we in Illinois owe him a tremendous debt of gratitude 

for his courageous stand, first, in imposing the moratorium and 

then, secondly, in coming up with the Governor’s Commission. 

My message today is a very simple one: that a moratorium and 

a commission is a win-win situation for those who oppose and those 

who support the death penalty, given that there are situations in 

other jurisdictions that are similar to those in the State of Illinois. 

15

Certainly Illinoisans would say that they in a great majority 

have supported the Governor’s moratorium. I believe indeed that 

the legacy that will flow from his efforts in this area, that any future Governor that would seek to reinstitute the death penalty will 

have the burden by clear and convincing evidence to show Illinoisans that indeed a system would undoubtedly and truly is broken has been fixed. 

I agree with the simple words that were spoken by Tom Sullivan, 

co–Chair of this Commission. He was a former U.S. Attorney for 

the Northern District of Illinois, and in the simple words that he 

said, ‘‘Repair or repeal.’’ You will hear those words reverberate out 

of Illinois over the next several months. 

And let me stop just a moment. The notion that my distinguished 

co-presenter has indicated that a rape victim who then murders 

would not be subject to the death penalty under our provisions. Let 

me say I have an 8-year-old daughter, and I believe without any 

hesitation that under the provision that said torture followed by 

murder, that a rape is torture—a rape is torture. 

The Commission members, I share with you that our backgrounds were many and varied. There were those who were wellknown and those who were not. My own background, as you have 

indicated, a former bar president, but I started my career after the 

University of Michigan Law School as a prosecutor. My first assignment was to write a brief to the Illinois Supreme Court in a 

murder case. My first trial was a habeas corpus petition where I 

as a prosecutor supported the murder conviction. My very first trial 

as a lawyer—who can ever forget their first trial?—before the venerable Judge Hubert Will, a great man, who I think spent many 

a day vacationing in the great State of Wisconsin. 

Chairman FEINGOLD. And we always appreciate that from Illinois. 

Mr. HUBERT. I have also had experience as a defense lawyer. I 

have worked with some of the great ones in Illinois, and let me, 

if you may allow me, to put their names into the record, individuals 

like George Harwood and Chester Slaughter, Adam Bourgoies, Jim 

Montgomery, R. Eugene Pincham. Justice Tom Fitzgerald started 

a pro bono program that Scott Turow and I both participated in. 

I handled for free out of my own pocket five murder cases. So I 

have been both prosecutor and defense lawyer, for fee and for free. 

But I stand here before you today and say that I join with Scott 

Turow, I have anguished over the issue of the death penalty, and 

I believe in a democratically determined country where highly motivated and educated and reasonable and honest and sincere individuals have been in support of it, that I am not morally opposed 

to it. 

However, I state categorically that I do not support the death 

penalty in Illinois unless it has been repaired. We have a major 

breakdown. It is embarrassing. It is unacceptable. And we must do 

something about it. 

That having been said, what are some of the profile matters that 

other jurisdictions might want——

Chairman FEINGOLD. I have to ask you to keep it brief, because 

we are over the time. 

Mr. HUBERT. I have one minute, I believe. 

16

Chairman FEINGOLD. Actually, you are one over, but I am going 

to give you a little more time. 

Mr. HUBERT. All right. Oh, I am one over. Okay. 

Chairman FEINGOLD. I will give you 30 more seconds. 

Mr. HUBERT. And that is, again, prosecutors who engage in misconduct, defense lawyers who are incompetent, judges who don’t 

enforce the rules and allow lawyers to run amuck, and an appellate 

process that didn’t catch the issue. 

In conclusion, thank you again for allowing me to appear here 

and to be one of the presenters, and I believe that your holding this 

hearing is a great step forward for the entire country. 

[The prepared statement of Mr. Hubert appears as a submission 

for the record.] 

Chairman FEINGOLD. I appreciate your eloquent comments, and 

I think it is very useful when you point out that the moratorium 

is really a win-win and something that you have to think about. 

You come from the perspective of somebody who generally has supported the idea of the death penalty. I am completely opposed to 

the death penalty. So I had to hesitate before supporting the idea 

of a moratorium because of my concern that it might get fixed; in 

other words, you might get rid of the defects. I think that is almost 

impossible, but I decided, even though there is a concern about 

that, that I can’t stand by from a moral point of view knowing that 

innocent people might be executed, even if I believe no one should 

be executed. 

So this really is a compromise for both people who are for the 

death penalty and against the death penalty, as I am sure you experienced in the Commission, to say, look, we all can agree that 

you can’t have a system where it is too likely that an innocent person may be executed. I really appreciate your comments, and now 

we will turn to Druanne White. She served as assistant solicitor for 

12 years before being elected Solicitor for South Carolina’s Tenth 

Judicial Circuit in November 2000. She served in the U.S. Marine 

Judge Advocate Corps and has delivered several lectures on South 

Carolina crime and prosecution. We welcome you, Ms. White, and 

thank you, and you may proceed. 

STATEMENT OF DRUANNE WHITE, SOLICITOR, TENTH 

JUDICIAL CIRCUIT, STATE OF SOUTH CAROLINA 

Ms. WHITE. Thank you, Senator. It is a prosecutor’s job to seek 

justice. That is what we call our system, the ‘‘criminal justice system.’’ And in order to seek justice, the State must balance the 

rights of the victim with the law-abiding community and with the 

defendant. 

I agree with the Illinois report, many of their proposals, and, in 

fact, the majority of them. However, in my opinion, some of the 

proposals would be dangerous because they do not adequately balance the rights of victims and law-abiding citizens with those of the 

defendants. This doesn’t surprise me. There were 17 members on 

this Commission, only one active prosecutor, no active law enforcement officers, yet they made all of these recommendations. 

Would anyone claim it was a bipartisan, fair committee if we put 

16 Republicans and one Democrat on it and said, But it is fair beVerDate Mar 21 2002 13:37 May 01, 2003 Jkt 086617 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 C:\HEARINGS\86544.TXT SJUD4 PsN: CMORC
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cause some of the Republicans used to be Democrats? But that is 

what we have got. 

If there is any doubt about the bias, look on page iii where the 

Commission in its own report says the majority wishes to abolish 

the death penalty. So this report on suggestions on how to cure the 

woes was written by people who were anti-death penalty. 

Now, I find this ironic that a South Carolina case was mentioned, exoneration. The South Carolina case was just like the California case. The person was convicted of armed robbery and murder. He was sentenced to death. A new jury—he was a given a new 

trial on a technicality. The new jury found him guilty of the armed 

robbery and inexplicably not guilt of the murder. That is hardly an 

exoneration. 

I think innocent persons will pay the price if some of these proposals are adopted because there isn’t any balance. And I would 

like to illustrate that with the last death penalty case that I prosecuted. 

Denisona Crisp stabbed an individual multiple times from behind, and then he ran him down with a car. The individual lived, 

and the defendant, Denisona Crisp, came to my jurisdiction when 

he got out on bond. And that is when he began hunting black 

males. The defendant, Denisona Crisp, first preyed upon Jealoni 

Blackwell. He shot him and then he beat him until every bone in 

his face was broken. But the hunt wasn’t over because the next victim was Clarence Watson. The defendant, Denisona Crisp, taped 

two knives in his right hand and two in his left, and he began 

slashing and stabbing and gutting Clarence Watson. The last thing 

Clarence Watson saw was the defendant kneeling over him and 

cutting out his throat. I didn’t say ‘‘cutting it.’’ I said ‘‘cut it out.’’

But the defendant wasn’t done. The hunt continued. The new 

black male prey was Thomas Gambrell. This time the defendant 

decided he needed a little more action, so he let Thomas Gambrell 

run through the woods as he shot him and tracked him through 

the woods. 

The neighbor that lived near the woods told me that she had 

never heard anything like it when she woke up that night to 

screams and pounding on her door. And when she looked out, 

Thomas Gambrell’s bloody fingers were going down her door as he 

tried to claw his way through because he was so afraid of Denisona 

Crisp pursuing him. 

We must balance the rights of these victims with the rights of 

the defendant. This defendant had a long prior record. He had escaped before. He was diagnosed anti-social personality disorder—in 

other words, a psychopath. When he got into jail, the first thing he 

did was construct a shank and tried to cut a guard’s throat. 

Anti-death penalty people will tell you that we have no mercy. 

I have mercy, but I don’t have it for the killers. I have mercy for 

the innocent victims. Should we have mercy for Denisona Crisp or 

for the poor, innocent people that will come in contact with him 

should he escape again? Should we have mercy for Denisona Crisp, 

or should we have mercy for the poor person who will be his cell 

mate? Should we have mercy for Denisona Crisp or for the guards? 

You know, they are parents, too. They are sons and daughters and 

brothers and sisters. I am just as merciful as an anti-death penalty 

18

person. I just choose to have my mercy for the people who are not 

ruthless killers. 

I would urge you——

Chairman FEINGOLD. Let me ask you a question. Is the person 

you were just describing one of the 101 persons exonerated? 

Ms. WHITE. The one from South Carolina was not——

Chairman FEINGOLD. The one that you have just described, the 

heinous crimes you have just described——

Ms. WHITE. No, sir. I just prosecuted him in October. 

Chairman FEINGOLD. Is he one of the 101 people that have been 

exonerated? 

Ms. WHITE. No. The one that——

Chairman FEINGOLD. Thank you. 

Ms. WHITE.—was exonerated——

Chairman FEINGOLD. Make that clear for the record——

Ms. WHITE.—so-called from South——

Chairman FEINGOLD.—so nobody thinks that that is the case. 

Ms. WHITE. The one that was so-called exonerated from South 

Carolina was actually found guilty by the second jury of the armed 

robbery. 

I would ask that you balance the rights of the victims and the 

innocent community with those of the defendant. I would urge you 

to implement the fair and balanced proposals that are in this. 

There are many of them. But I would implore you to reject the ones 

that would allow the likes of Denisona Crisp to kill again. 

[The prepared statement of Ms. White appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you very much. 

We will now note that Senator Durbin has arrived. What I am 

going to try to do is—ah, there is Governor Ryan. All right. We are 

going to take a break here, and first I am going to turn to Senator—you are going to defer to the Governor of Illinois? Senator 

Durbin is a great guy, and he knows Illinois politics. 

[Laughter.] 

Chairman FEINGOLD. Well, then, we will turn to Governor Ryan 

and go back to panel two later. I understand that Governor Ryan 

is now prepared to participate in the hearing, and as I mentioned 

earlier, we will now turn to him for his opening remarks. Following 

his opening remarks, we will allow members to ask questions of 

Governor Ryan, and then after we complete that, we will complete 

the testimony of Professor Marshall and ask questions of the second panel. 

Seeing no members of the minority here to make a statement, I 

will now say it is a great pleasure and honor to welcome Governor 

George Ryan of Illinois. Governor Ryan’s courageous decision in 

January 2000 is the main reason we are holding this hearing 

today. 

Governor Ryan, I wish you could join us in person, but I am very 

pleased that you are, nonetheless, able to participate via the wonders of modern technology during a busy legislative session in Illinois. And, Governor, if you figure out Illinois’ budget problems, 

please come up to Wisconsin and help us. We are having serious 

ones, too. 

19

Governor George Ryan was elected to the Illinois House in 1972 

and re-elected four times. During that tenure, he served two terms 

as House Republican leader and one term as Speaker of the House. 

Governor Ryan went on to serve as Lieutenant Governor from 1983 

to 1991, at which time he became Secretary of State. 

Seven years later, he was elected the 39th Governor of Illinois, 

and, again, Governor, as you know, I have strong feelings about 

your courage in this regard. I want to thank you for your time this 

morning, and I commend you for your leadership and courage on 

this important issue. You may proceed, Governor Ryan. 

STATEMENT OF HON. GEORGE RYAN, GOVERNOR, STATE OF 

ILLINOIS 

Governor RYAN. Senator Feingold, thank you very much for your 

kind words. And you are right, we did attempt to solve our budget 

problems and finished up late last night, so I am delighted to have 

the opportunity to be here, and good morning to my friend, Senator 

Durbin, and I thank him for the hard work that he puts in. 

I am absent today, as you pointed out, Senator, because we are 

in the middle of our special session that I called to balance our 

budget. And because of the importance of this issue and your leadership on this issue, I am delighted that we were able to connect 

through technology from our office here in Springfield. 

By the way, you may know that this is the home of your colleague, Senator Dick Durbin, Springfield is his home, where he is 

well thought of and does a great job representing us. 

I would like to thank all the members of this committee. I have 

had an opportunity to meet and work with a couple of them. Certainly Senator Leahy has been a part of our program that I have 

worked with in the past, and you have with you this morning Scott 

Turow and Don Hubert, who just testified, and Larry Marshall, 

who heads up the—is the Chair of the Northwestern Center on 

Wrongful Conviction. So I do want to thank you for inviting me to 

testify on the death penalty moratorium. 

You know, throughout my career, I believed that only the guilty 

could be sent to death row, being from a little town in Illinois 

called Kankakee, where the death penalty and death row were 

kind of in the abstract for those who didn’t really have a lot to do 

with it. So I never really questioned the system. Bad guys went to 

death row, and they were executed. 

You may have heard me tell this story in the past, Mr. Chairman, but it was some 25 years ago, and I vividly remember voting 

to put the death penalty back on the Illinois books. 

As a member of the Illinois General Assembly, I was voting yes 

to put the law back on the books, and during the debate of that 

bill, an opponent of the death penalty asked if any of us that were 

voting yes or supporting the bill would be willing to ‘‘throw the 

switch.’’

It was a pretty sobering question, and it gave me a lot of reason 

for thought. But it wasn’t my responsibility, and for that I was relieved. It was still kind of in the abstract for me, and I still believed that the death penalty was the right answer. Administration 

of the death penalty was something that was left up to the criminal 

20

justice system and certainly that system would never make a mistake. 

So I voted for the death penalty. The fact is now, as Governor, 

I learned the responsibility is mine, and I do ‘‘throw the switch.’’ 

It is an awesome responsibility, and it is probably the toughest job 

that any Governor has, who should live or who should die. 

Since those days as a legislator, a lot has happened to shake my 

faith in the death penalty system. And the more I have learned, 

the more troubled I have become. 

The State executing an innocent man or woman is the ultimate 

nightmare. The fact is we have come very close to that prospect 13 

times in Illinois. 

Anthony Porter’s case is a shocking example of just that. Back 

in the fall of 1998, when I was still campaigning for Governor, Anthony Porter was scheduled to be executed on September 23rd of 

that year. He had ordered his last meal and he had been fitted for 

his burial clothes. 

He had been convicted in the 1982 of shooting a man and a 

woman to death in a South Side park of Chicago. 

Two days—two days—before he was to die, his lawyers won a 

last-minute reprieve, a temporary reprieve that was based on his 

IQ which they believed to be about 51. 

With that delay, some of the great journalism students from 

Northwestern University and their professor, David Protess, who is 

also a very powerful champion for justice, had some time to start 

their own investigation into the then 16-year-old case. Anthony 

Porter had been on death row for 16 years. 

With the help of a private detective, the students picked up in 

one aspect of the case, and they found that they could help Anthony Porter. 

Key witnesses, like one who claimed that he saw Porter at the 

crime scene, an eyewitness who absolutely saw Porter shoot these 

people, recanted that testimony and said that Porter was framed. 

The students then followed their leads into your home State, 

Senator, into Milwaukee, where the private detective obtained a 

video confession from a man named Alstory Simon. 

Simon told the private detective that he shot the two victims in 

an argument over some drug money. With that new evidence, 

charges were dropped and the innocent Mr. Porter was freed in 

February of 1999. An innocent man spent nearly 17 years on death 

row, with an IQ of 51, barely able to defend himself or know what 

the charges were. The charges against him were wrong, and they 

nearly sent him to death, after spending nearly 17 years on death 

row. 

I had the opportunity to meet with Mr. Porter just last week, and 

he told me how he was kept in his dark cell for 23 hours a day. 

His eyes can’t tolerate the sun today because they are so sensitive. 

And that is tough punishment for a guilty man, let alone an innocent one. If you can imagine enduring that much pain, all the while 

knowing that you are innocent. 

I was caught off guard by Mr. Porter’s case because I had just 

taken office. I didn’t know how bad our system really was. Shortly 

after Anthony Porter’s case, while I was still trying to recover from 

21

what had happened to him, the Andrew Kokoraleis case came to 

my desk. 

Andrew Kokoraleis was a serial killer, and he had been charged 

with the brutal murder, rape, and mutilation of a young 21-yearold woman. After the mistakes the system made in the Porter case, 

I agonized. I had to decide whether Kokoraleis was going to live or 

whether he was going to die. I reviewed the case. I consulted with 

staff. I called in veteran prosecutors and defense attorneys. I requested additional information from the Prisoner Pardon Board. I 

checked and double-checked and triple-checked because I wanted to 

be absolutely sure that this man who was sentenced to death was 

going to be guilty. And in the end, I was sure without any doubt 

that Andrew Kokoraleis was guilty of a monstrous, unspeakable 

crime. I allowed his execution to proceed. 

But it was an emotional, exhausting experience, and one that I 

would not wish on anybody. It all came down to me. I am a pharmacist, Senator, from Kankakee, Illinois, who had the good fortune 

to be elected Governor of the State of Illinois. But now, in fact, I 

had to throw the switch. Quite frankly, I think that might be too 

much to ask of one person to decide. 

That experience was really not the end of my journey. Journalists Steve Mills and Ken Armstrong of the Chicago Tribune conducted an in-depth investigation of the death penalty cases in Illinois in 1999 that was absolutely startling. Half—half, if you could 

imagine—of the nearly 300 capital cases in Illinois had been reversed for a new trial or sentencing hearing. Thirty-three of the 

death row inmates were represented at trial by an attorney who 

had later been disbarred or at some point suspended from practicing law. Thirty-five African American death row inmates had 

been convicted or condemned by an all-white jury. In fact, two out 

of three of our approximately 160 Illinois death row inmates are 

African American. 

Prosecutors used jailhouse informants to convict or condemn 46 

death row inmates. So it was clear that there were major questions 

about the system—questions that I alone could not answer. 

In January of 2000, the 13th death row inmate was found wrongfully convicted of the murder for which he had been sentenced to 

die. At that point, I was looking at a very shameful scorecard: since 

the death penalty had been reinstated in 1977, 12 inmates had 

been executed and 13 were exonerated. To put it simply, we had 

a better than a 50–50 chance of executing an innocent person in 

Illinois. 

The odds of justice being done were as arbitrary as the flip of a 

coin. 

Up until then, I had resisted calls by some to declare a moratorium on executions. But then I had to ask myself how could I go 

forward with so many unanswerable questions about the fairness 

of the administration of the death penalty in Illinois. And how on 

Earth could we have come so close, again and again—to putting 

fatal doses of poison into the bodies of innocent people strapped to 

a gurney in our State’s death chamber? 

It was clear to me that when it came to the death penalty in Illinois, there was just no justice in the justice system. I declared the 

moratorium on January 31, 2000, because it was the only thing I 

22

could do. I had to put a stop to the possibility of killing an innocent 

person. 

That was the easy part. The hard part was to find out why our 

system was so bad and what had gone so terribly wrong with it. 

The hard part was to try and find out answers to how our system 

of justice became so fraught with errors, especially when it came 

to imposing the ultimate, irreversible penalty. 

So I appointed some of the smartest, most dedicated citizens that 

I could find to a commission to study what had gone so terribly 

wrong. It was chaired by former Federal Judge Frank McGarr and 

was co-chaired by a former colleague of yours, Senator Paul Simon, 

and the former U.S. Attorney from the Northern District of Illinois, 

a fellow by the name of Thomas Sullivan. 

They led a panel which included former prosecutors, defense lawyers, and non-lawyers. Accomplished attorney Scott Turow, whom 

you have heard from earlier today, a best-selling author and Commission member, along with Commissioner Don Hubert, whom you 

just heard from, and Matt Bettenhausen. My Commission put together a tremendous document. They developed 85 recommendations to improve the caliber of the justice system of our State. It 

does not single out anyone, but it calls for reforms in the way police and prosecutors and defense attorneys and judges and elected 

officials do their business. 

I have taken the entire report and introduced it to the Illinois 

General Assembly. It will require legislation, and hopefully the 

General Assembly will take the bill and have hearings around the 

State and shape it into a good piece of legislation that will pass. 

My bill proposes barring the execution of the mentally retarded, 

mandating that natural life is given as a sentencing option to juries, and reducing the death penalty eligibility factors from 20 to 

5, and barring the death penalty when a conviction is based solely 

on a jailhouse snitch. 

This summer, the General Assembly, as I said, will hold hearings, and I hope that they will hear from all of the key parties 

throughout the State—prosecutors, defense attorneys, victims, and 

the wrongfully convicted. 

My Commission reviewed at least at some level every capital 

case that we have ever had in Illinois, but it took a closer look at 

the 13 inmates that were freed from death row and exonerated. 

Most did not have solid evidence. We had cases where jailhouse 

snitches were the only key witnesses, another case where a drugaddicted witness sent a man to death row, and DNA freed several 

inmates. Some were convicted because of overzealous police and 

prosecutors. Some had inadequate representation at trial. 

The Commission concluded that its recommendations will significantly improve the fairness and accuracy of the Illinois death penalty system. But it also concluded, and I also quote, ‘‘No system, 

given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that 

no...innocent person is ever again sentenced to death.’’ I think that 

is a pretty powerful statement, and it is one that I will ponder. 

In the meantime, we do know this: I said 2 years ago, and I can 

say now, until I can be sure that everyone sentenced to death in 

Illinois is truly guilty, until I can be sure with a moral certainty 

23

that no innocent person is facing a lethal injection, nobody will 

meet that fate as long as I’m Governor. 

We all want to punish the guilty. There isn’t any question about 

it. But in doing so, we must never punish the innocent. And we almost did that in many cases here. And with our mistake-prone system in Illinois, that is just what we were about to do. 

So, Chairman Feingold, I know that you are proposing a Federal 

moratorium on the death penalty. We have had the pleasure, as I 

said earlier, of discussing our mutual concerns about capital punishment a number of times in the past couple years. And I want 

to commend you for your passion for truth and justice. 

I have not studied the Federal system, but I do know, especially 

after September 11th, that the United States of America must be 

a model for the rest of the world. And that means our justice system should be the glowing example for the pursuit of truth and justice. And it certainly must be fair and it must be compassionate. 

So we must safeguard our individual liberties while keeping our 

communities safe. And we must protect the innocent. I believe it 

is a fundamental part of the American system of justice. 

Once again I appreciate the opportunity to be here with you 

today and to present what we have done in Illinois with our moratorium on the death penalty. 

Chairman FEINGOLD. Thank you so much, Governor. I am very 

honored that you would take the time to do this today, and I will 

turn to Senator Durbin in a moment after I have asked you a couple of questions. But let me first say that there is no question in 

my mind that there are going to be significant changes in the death 

penalty system in this country, whether it would lead to abolition 

or whether it would lead to fixing the problems in the system. 

I am also confident that when the history of those changes are 

written, the most important name will be the name Governor 

George Ryan. And I admire your courage in this regard tremendously. 

In fact, there has been much made this morning at the hearing 

of the composition of the Commission you selected, and some have 

suggested because former prosecutors were used that that is not a 

valid representation of prosecutors, in fact, making the claim that 

certain people switched political parties. Well, I want it clear that 

this advocate of the moratorium and the Commission, Governor 

Ryan, is still a Republican and is still saying these very things. 

In that regard, Governor Ryan, some critics, including the Wall 

Street Journal editorial page, have charged that, in choosing the 

members of your Commission, you stacked the deck with death 

penalty opponents. How do you respond to these claims? 

Governor RYAN. Well, you know, I try not to respond a lot of 

times to the newspaper’s errors, but let me say that some of the 

critics haven’t been happy with this report for the reasons you have 

said, that I have stacked the Commission. I would like to point out 

that 9 of the 14 members on this Commission are current or former 

prosecutors. When I appointed them, those opposed to capital punishment accused me then of stacking the Commission with death 

penalty supporters. 

It is kind of a no-win situation, I think, Mr. Chairman. This was 

a fair Commission, and the Commission is made up of some of the 

24

most conscientious and dedicated people to enter public service. 

And I think they did a good job with this report. If they had a personal bias, it certainly didn’t show. They spent 2 years studying 

this, many hours every week, and they did a great job. And I am 

grateful for and proud of the work that they have done. 

Chairman FEINGOLD. Thank you, Governor. Some, even those 

who recognize that there are problems in the current death penalty 

system, argue that there is no need for a moratorium. They argue 

that we can enact reforms without suspending executions. I disagree with that position. I believe that it doesn’t make sense to go 

forward with executions at the same time that efforts are underway to review and repair the system. And you, of course, realize 

that these two things should be joined. 

Can you explain why you decided that suspending executions 

was necessary rather than merely appointing the Commission to 

study the issue and then make recommendations? 

Governor RYAN. Well, because we never executed 13 innocent 

people. In the case that I like to go back to, this fellow Anthony 

Porter, who was absolutely innocent without question and was 48 

hours away from death, and if we hadn’t had a moratorium on the 

death penalty, he would have been executed. 

I don’t know how many more of those 13 others or 12 would have 

been executed, but they were all innocent, and I think that if we 

had gone on with this for the last 2 years, there probably would 

have been several innocent people executed. And I think that is 

what I was concerned about, whether we had a fair system that 

worked for everybody. The witness that you had on earlier, Ms. 

White, talked about being fair and just and to have a balance. I 

would like to point out that I—I am not sure what the death penalty is supposed to mean. Is it a deterrent to crime or just revenge 

for a crime? I think that is a question that has to be asked. 

When you look at some of the problems, we look at the prosecution and the defense of these people, is it fair and just that poor 

and indigent people who can’t afford the best attorneys should be 

the ones that go to death row more often than others? We need to 

have a system that is fair and is balanced and is just. And so that 

is what we tried to do with the moratorium and the study that we 

put into it. 

Chairman FEINGOLD. Thank you, Governor. 

Finally, do you have any regrets about the decision you made 

now that the Commission has completed its work? 

Governor RYAN. No, not at all, and I have several things left to 

do with that Commission and that report, and hopefully we will 

fine-tune it a little bit throughout the summer and pass it into legislation in the fall. 

Chairman FEINGOLD. Well, obviously, I wish you well in that regard, and thank you. 

I now turn to my friend and colleague from Illinois, Senator Durbin. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman. And let 

me also thank Governor Ryan and the panel for joining us today. 

25

And let me say that there couldn’t be two more different political 

figures before us today than Senator Feingold of Wisconsin and 

Governor Ryan of Illinois, not only in terms of their party affiliation but their political philosophy, and yet they have both come 

to remarkably similar conclusions about one of, I think, the most 

challenging moral issues of our day. 

I commend Governor Ryan for the decision he made to establish 

a moratorium on the death penalty in Illinois. Like Governor Ryan, 

I support the death penalty. I have voted for the death penalty. 

But I believe the only morally coherent position you can take with 

the evidence that Governor Ryan had before him was to establish 

a moratorium until there was clearly established a line of evidence 

and established a clear record that the men and women on death 

row were there because they had committed the crimes they were 

charged with. 

I don’t think any of us want to see an innocent person killed by 

the State, and Governor Ryan, faced with the reality of 13 individuals facing death on death row who were released, did what I think 

is the absolutely right thing. 

And I also commend you, Governor, for going beyond that and establishing this Commission. I know most of the people on that 

Commission. I have known them most of my life. I respect them. 

They are people, I think, who are balanced and objective in the approach that they take. I don’t believe that that Commission was biased. I think it was honest. And I think it really challenges all of 

us to take a look at the Commission’s conclusions and to determine 

each and every one of them as to whether or not they are honest, 

whether they need to be followed through, whether they establish 

standards which we should pursue as a Nation. 

Governor Ryan, I can tell you, despite our political differences in 

the past, you have not only done the right thing for our State, you 

have created a national debate which was long overdue, and the 

public sentiment in reaction to your decision and the decision by 

others, such as Governor Glendening in Maryland, has resulted in 

many Americans stepping back and finally facing a very, very 

tough issue of the death penalty and deciding for themselves what 

is the right thing in a good and just Nation to do. 

I thank you, Governor Ryan, for your testimony and for your 

service and, particularly on this issue, your leadership. 

Thank you, Mr. Chairman. 

Governor RYAN. Thank you. 

Chairman FEINGOLD. Thank you, Senator Durbin, for your excellent comments, and, again, Governor Ryan, we are grateful to you 

for your appearance here today, but especially for your leadership 

on this, and I look forward to working with you on this issue for 

many years to come. Thank you, Governor Ryan. 

Governor RYAN. Thank you very much. 

[The prepared statement of Governor Ryan appears as a submission for the record.] 

Chairman FEINGOLD. We will now return to the second panel. We 

have one more witness, Professor Larry Marshall. He is a law professor at Northwestern University School of Law and the Legal Director of the Center on Wrongful Convictions. 

26

Professor Marshall currently represents criminal defendants as a 

part of his work with the Northwestern University Legal Clinic and 

has succeeded in winning the release of several innocent defendants who were sentenced to death or life imprisonment. Professor 

Marshall once served as a law clerk for Supreme Court Justice 

John Paul Stevens. 

We certainly welcome you to the panel this morning, Professor 

Marshall. It’s a pleasure to see you again, and you may proceed. 

STATEMENT OF LAWRENCE C. MARSHALL, PROFESSOR OF 

LAW, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, AND 

LEGAL DIRECTOR, CENTER ON WRONGFUL CONVICTIONS, 

NORTHWESTERN UNIVERSITY 

Mr. MARSHALL. Thank you, Senator, Senator Durbin. I think the 

issue here today is really one of values, not the question of whether 

we value the death penalty or not value the death penalty in the 

abstract, because that is an issue upon which reasonable do and 

can differ; but, rather, the question is how much we value the life 

of the absolutely innocent person who is caught up in this nightmare of being sentenced to death. 

Each of the witnesses who testified against, so to speak, the idea 

of a moratorium, against some of the proposals that the Governor 

made and the Commission made, accepted the idea that we have 

a system in need of reform. One of them said she accepted 67 of 

those reforms. The others said they accepted the majority of them. 

The Illinois Prosecutors Association, Mr. Kinsella said, accepted 

the grand majority of them. But yet, they say, that we nonetheless 

ought to proceed and continue to kill people at the very time that 

we have not yet implemented those procedures, at the very time 

that we haven’t studied the impact that those reforms would have 

on those cases. 

To paraphrase the adage that we all are schools in, which is it 

is better that 10 guilty people go free than one innocent person be 

convicted, much less executed, I am hearing here that it is better 

that numerous innocent people be executed than other guilty people’s executions be deferred or perhaps not go forward. 

So the question is: How much do we value that innocent person? 

I am hearing over and over, well, yes, there are some guilty people, 

Mr. Scheidegger says, there are some guilty people on death row. 

Stop the presses. Of course, there are guilty people on death row. 

But what do we do about the fact that there are scores and scores 

of innocent people—innocent people, some of whom may be cleared 

by DNA, but in most cases involving the death penalty, DNA is 

simply not there. DNA is not available. Don’t we have a moral duty 

to learn the lessons from these cases? 

When I was driving up here today, I saw the sign in front of the 

Archives: ‘‘What Is Past Is Prologue.’’ Don’t we have a duty to look 

at the past and to figure out what it teaches us before we take the 

ultimate step of killing? 

Now, Mr. Kinsella says, well, look, this is really an indictment 

of the entire Anglo–American system. And the answer is, of course, 

the system is faulty and the system needs improvement. But death 

is different. When we kill someone, we absolutely take away that 

person’s chance to prove their exoneration. 

27

I am shocked to hear Mr. Scheidegger say that one of our goals 

ought to be to limit the time between sentence and execution to 4 

years. Mr. Scheidegger knows that the mean time that it has taken 

people like Kirk Bloodsworth and the hundred others to exonerate 

themselves has been over 7 years. What is he saying when he says, 

But we should be killing them within 4 years? He is saying to Mr. 

Bloodsworth, you know what, I don’t care about the fact that you 

would have been killed, even though we now know you are innocent. He is saying that to those other hundred people. And the 

question is why. 

Well, we are told the answer is, as Ms. White tells us, because 

there are awful crimes going on out there. And she described with 

passion that would bring tears to any of our eyes what happened 

in that case that she prosecuted. 

But let me point out that happened in a State which has an active death penalty and that the execution of that man is not going 

to reverse any of those harms. So we have to balance costs and 

benefits here. 

We may be able to go back to a death penalty someday that is 

new and improved, that actually has safeguards that protect 

against the execution of the innocent, that protect against racism, 

that protect against arbitrariness. But let me say, Senators, that 

if we have a system right now which is as bad as this one is, and 

even figuring out if somebody did it or didn’t do it, which is the 

easy objective fact, then how much worse is that system at figuring 

out whether that person deserves to live or deserves to die, the ultimate imponderable. 

Mr. Scheidegger says, well, you know, a lot of the Columbia 

study is really based on other kinds of procedural issues, and he 

says glibly it is a tribute to the fallibility of judicial review. And 

that is what we are up against here. What we are up against is, 

whenever there is exoneration, well, that is a wrongful exoneration. 

Whenever there is an acquittal and a jury does something and says 

someone is not guilty of murder, that is inexplicable. 

But, of course, if someone is convicted, that is the law; the jury 

has spoken; there is no questioning that jury’s verdict. 

When we have a commission that comes in, as the Illinois Commission did, objectively studying an issue and looks at the facts 

and, as Governor Ryan learned, we are shocked to learn how fallible the system is. And that Commission now says that on balance, 

having read and learned and studied, having looked in the faces of 

those who are on death row and were ready to die but are now 

known to be innocent, that they no longer support the death penalty, we are told that is a bias. We are told that people becoming 

educated and learning about the realities and practicalities of the 

implementation of the death penalty become biased. 

Twelve years ago, when I first got involved in this field, I actually believed that the death penalty had problems, but I believed 

one thing about it: that whatever other problems it had, we could 

be sure that someone who was on death row was, in fact, guilty; 

that all of the safeguards of the post-Furman era absolutely proved 

that. 

The facts have absolutely shattered that belief for me. I have 

represented nine people who were absolutely innocent and who 

28

were sentenced to death, who were freed because of fortuities, because of the hand of God, or whatever else you want to call it, but 

not because the system has worked. And if we truly care about the 

value of life, we have to say let’s take a time-out. Let’s take a timeout. It is not going to kill anyone for us to wait and study this subject. It may well kill innocent people if we don’t. 

Thank you. 

[The prepared statement of Mr. Marshall appears as a submission for the record.] 

Chairman FEINGOLD. Thank you very much, Professor, for that 

powerful explanation of this issue, and I appreciate your leadership 

on this issue. 

We will now turn to the questions. We will start with 7-minute 

rounds, and I am going to go first to Deputy Governor 

Bettenhausen, who is with us by video. 

One of the most frequently criticized recommendations in the 

Commission’s report is the recommendation to eliminate the felony 

murder death eligibility provision and the general reduction of 

death eligibility factors from the current sum of 20 to 5. The argument is that these recommendations are simply an effort by opponents of the death penalty to reduce its use. 

Can you explain how the Commission arrived at its list of five 

eligibility factors and the rationale behind recommending the elimination of many of the eligibility factors, including the felony murder provision? 

Mr. BETTENHAUSEN. Well, Senator, one of the things—and I 

think I mentioned this in my opening statement—is we heard from 

prosecutors, from judge, from police officers as well as defense attorneys, and uniformly we heard that there were too many eligibility factors in Illinois. If you are going to have the death penalty, 

you need to have it for the most heinous of crimes. Every murder 

is horrendous. Every murder is terrible. But as we know, constitutionally you cannot have the death penalty for every murder. There 

are victims in every murder case. But if you are going to have capital punishment, it has to be reserved for those cases. It is a significant investment of those prosecuting these cases as capital crimes. 

We looked at what was originally enacted here in Illinois. We 

looked at all of the cases that have happened, 300-some death penalty cases that have happened throughout Illinois’s history with 

capital punishment. A number of those factors have never been 

used. But we looked at where with our sentencing study this very 

prosecutorial abuse could happen, and we saw that was in the felony murder cases, because you would have lifetime, life cases treated differently so that you have disparity and misapplication potentially of the capital punishment law. 

So it was based on that, and looking at what are—it is, to some 

extent, a tough judgment to make. It would have been easier just 

to say, like the prosecutors who are here today, well, we agree that 

you reduce the eligibility factors, but the difficulty always is you 

can find any example for any case because all murders are terrible. 

But we didn’t take the easy way out. We looked at what would 

pass as the worst of the worst. If you are going to have capital punishment, this does it, and it preserves it for the worst of the worst 

29

cases so that you can apply your criminal justice system and do the 

costs that are associated with capital punishment fairly. 

One of the other things when we talk about victims—we also 

heard from victims. Our committees and subcommittees met with 

police officers practically weekly when we were working on these 

recommendations. But one of the things victims should know, for 

example, when we talk about the capital punishment being there, 

most of the time most murders are not going to qualify for capital 

punishment. Most of the thousands of murders that happen in Illinois, less than 2 percent would be treated as a capital case. And 

of those 2 percent, 70 percent of those are going to be reversed, and 

those victims then have to go through the whole process again. And 

of those reversals, only 25 percent of them ultimately resulted in 

the imposition of capital punishment. And it is unfair to victims to 

hold that out there, for them to think that every murder is going 

to result in capital punishment, and it treats victims differently. 

Chairman FEINGOLD. Thank you very much. I am now going to 

turn to Professor Marshall. 

Some argue that the fact that there have been exonerations is 

proof that the system is working, but we also know that oftentimes 

there are people very much outside the system, in part because of 

your good efforts, like reporters or journalism students, who do the 

work to uncover evidence of innocence. 

I know you have worked with students on many cases of death 

row inmates who are later exonerated. Do you agree that the 101 

exonerations is proof that the system is working? 

Mr. MARSHALL. Absolutely not, Senator. If you look at the circumstances of these exonerations, you see extraneous forces working. Let me give you the best example I can to show you how clear 

it is the system doesn’t work. And, again, I will point—I could 

point to many people, but I will point to Kirk Bloodsworth because 

he is in the room. 

Kirk Bloodsworth was convicted of raping and murdering a 

young girl. He was convicted based on eyewitness testimony. Ultimately, he was exonerated 9 years afterwards, after spending time 

on death row, because DNA testing was available. 

Now, DNA was available in that case because the victim was also 

raped. Had she not been raped, then DNA wouldn’t have been 

there, and the eyewitness testimony saying that Kirk Bloodsworth 

was the murdered would have stood. Kirk Bloodsworth would have 

been executed or would have spent the rest of his life in prison. 

The bottom line is, to put it glibly, he was lucky in this perverse 

way that the victim was raped, because had she not been raped, 

he would have been equally innocent, but he would have had no 

method of exoneration. 

DNA is available in around 20 percent of death penalty cases. 

Those are the cases for which there is biological evidence susceptible to forensic testing. In the other 80 percent of the cases, they 

don’t have that method. So, again, we see these kind of fortuities. 

We had another case. Scott Turow talked about the Cruz–Hernandez case. Part of the evidence in there was DNA evidence that 

happened to be lingering on the inside of a test tube. Everyone 

thought the DNA had been destroyed. There happened to be a little 

bit left. Or the arrest of a true killer, these kinds of complete 

30

fortuities. The Anthony Porter case, 2 days before, we got a stay 

from the Illinois Supreme Court based on evidence of retardation, 

nothing to do with innocence. 

That is not the system working. That is, in some cases, our ability to prove innocence. But how many people have been executed 

already without those fortuities, without those miracles, and how 

many people on death row will be executed? Countless numbers. 

Chairman FEINGOLD. I think that is an important point as well 

about the DNA, because there are some who believe that this is 

just a question of making sure everybody gets a DNA test. And 

that doesn’t even represent anywhere near a majority. In fact, I 

think you said more like 20 percent of even these exoneration 

cases. It is a wonderful thing that we are able to do that, but it 

certainly does not address the whole problem. 

I would like to turn to Mr. Turow and Mr. Hubert, because they 

are both part of this Commission, but they both have indicated that 

they support the death penalty, capital punishment. Your position 

illustrates something remarkable here that I don’t think you can 

really underscore enough: that there is common ground between 

death penalty proponents and opponents, and this is not an area 

of public debate where there has been a whole lot of common 

ground in the past. But the people of Illinois certainly came together to say that enough is enough, it is time to take a time-out 

because the system is broken. 

How did each of you arrive at the decision to support a moratorium and Commission? And I would ask Mr. Turow first to answer 

that. 

Mr. TUROW. Well, Senator, my experiences—I do spend most of 

my time writing, but I do spend quite a bit of time also practicing 

law. And in the decade of the 1990s, I spent most of the time that 

I give to lawyering involved in the post-trial phases of capital 

cases. And what moved me was not only the experience of the Cruz 

and Hernandez cases, but also an instance that we have not talked 

about today of another young man whom I represented who simply, 

in my opinion, was on death row for the crime of having bad lawyers. The lawyers who had represented him had been under contract to the localities, public defender’s office. They were supposed 

to do 103 cases a year for the total of $30,000, which meant that 

when they got down to the capital case that they were supposed 

to be working on, each of them was being paid an average of $300. 

And, not surprisingly, when we applied the resources of a large 

law firm to a case in which there had been $600 worth of representation, the result changed. We were able to prove, I think, that 

there had been significant legal errors, so found the judge who entertained our post-conviction petition. And we were also able to 

persuade the very fine State’s attorney in Lake County, Michael 

Waller, that an improper assessment had been made of the defendant’s character based on the failure to present appropriate mitigation information. 

So not only had I seen the palpably innocent like my client, Alex 

Hernandez, convicted wrongfully, I had also seen instances where 

someone who was not innocent and who ultimately admitted he 

was not innocent, but he had had inadequate representation, bring 

him to death row. 

31

And looking at all of that, I saw a system which is simply 

fraught with error, where the imposition of the death penalty 

seems to be haphazard and where distinctions are made on bases 

that I found almost impossible to understand. 

So for those reasons, I very much support the moratorium, and 

my doubts about reinstituting the death penalty, as I say, do not 

have any basis on moral affront but simply my question as to 

whether this can ever be done in a way that is rational and that 

justifies the enormous consumption of social resources. 

Chairman FEINGOLD. Thank you very much, Mr. Turow. 

Mr. Hubert? 

Mr. HUBERT. Thank you. I think the number of exonerations was 

so overwhelmingly great that it made Illinois become potentially 

the poster child for government that kills the innocent. 

Secondly, there have been points made of a disproportionate 

number of those who receive the death penalty who are black 

males, and so we always in a situation like that have to wonder 

whether or not, particularly in light of the fact that overwhelmingly prosecutors are white, the judges are overwhelmingly white, 

the jurors are overwhelmingly white—we have to go through the 

Batson situation to try to begin to rectify that—that we have to be 

concerned with whether there is fairness when you have those 

kinds of statistics. We are talking about two statistics. One is the 

number is just—it defies logic and reason, and it is embarrassing. 

I am embarrassed to sit here before the rest of the Nation and say 

Illinois has that. And then the other number is the disproportionate number of black males who are receiving the death penalty, 

and that needs to be studied to see whether or not that is a fair 

process. 

Thank you. 

Chairman FEINGOLD. Let me just say, even though there is some 

competition between Wisconsin and Illinois, you shouldn’t be embarrassed. You are just the State that had the courage to say, wait 

a minute, something is going on here. I think that is a great tribute to the State of Illinois, and I admire it greatly. Thank you for 

your comments. 

Senator Durbin? 

Senator DURBIN. Thank you very much, Mr. Chairman. 

Mr. Scheidegger, let’s go to this point where you are saying in 

your testimony that 4 years is the end of it——

Mr. SCHEIDEGGER. No, Senator, I did not say that. 

Senator DURBIN. Well, let me read what you say: Four years is 

more than sufficient to weed out the very few cases of real doubt 

of identity, but short enough that the American people would finally have the benefits of an effective death penalty system. 

Why did you say 4 years? 

Mr. SCHEIDEGGER. Thank you for giving me the opportunity to 

respond because I think Mr. Marshall seriously distorted my proposal, and I think he needs an emergency course in remedial statistics. 

I propose that we set as a goal a 4-year median, not a 4-year 

limit. That is a very different thing. And I think what I am saying 

is that in a typical case, that is sufficient to confirm that it is a 

32

case involving no question of identity of the perpetrator, which is 

the norm. 

Certainly some cases will take longer than that, and——

Senator DURBIN. How would Congress enact a law calling for a 

4-year median? 

Mr. SCHEIDEGGER. What I said was that we should state that as 

a goal, and we should continually look at proposals to work toward 

that goal. I did not propose a cutoff. 

Senator DURBIN. All right. Then——

Mr. SCHEIDEGGER. That is a gross distortion of my statement by 

Mr. Marshall. 

Senator DURBIN. I am troubled. I don’t believe Congress can 

enact a law that says on average we will only allow 4 years. I don’t 

see how you can do that. I have seen a lot of laws——

Mr. SCHEIDEGGER. I did not propose that, Senator. 

Senator DURBIN.—in a long period of time so——

Mr. SCHEIDEGGER. I did not propose that. 

Senator DURBIN. I think we should try to have speedy review, 

and I think all of us agree on that. 

Let me see if there are things that we could all agree on, and 

obviously there are lot of differences here. Ms. White, let me ask 

you about this: Do you question the premise that when there is a 

courtroom considering a capital case, a serious case—and you have 

described one that is as graphic as I have ever heard—where we 

are asking for the death penalty, that you should have on both 

sides of the table, both the State and the defense, competent counsel? 

Ms. WHITE. That makes my job so much easier if I have competent counsel on the other side and a competent judge. 

Senator DURBIN. Great. 

Ms. WHITE. Because then I don’t have to worry about protecting 

the record for myself and for the defendant and for the judge. I 

much prefer very competent counsel on the other side and a competent judge, and I have always said we ought to have specialization in the judiciary as well as in the defense and prosecution——

Senator DURBIN. I agree completely. 

Ms. WHITE.—because you have got to have specialization. This is 

too big an area to have people that don’t know what they are doing. 

Senator DURBIN. And I assume—and I don’t want to assume too 

much, but I assume from that answer that you would also concede 

that if you had counsel on either side representing the people or 

representing the defendant who did not have a sufficient level of 

expertise, that the system of justice is not going to be served? 

Ms. WHITE. Senator, when I teach law enforcement and prosecutors, I specifically tell them—and I have got it in my policy manual 

in my office—our job is not to arrest people and it is not to prosecute people. It is to arrest guilty people and to prosecute guilty 

people. 

And I take it very seriously. I go back and talk to every witness 

in the investigation. The police actually laugh about my ‘‘to do’’ list 

because before I will send it in to the grand jury, I send them back 

to talk to additional witnesses and so forth. But I don’t plan on 

ever prosecuting anybody that I have any doubt about their guilt. 

33

Senator DURBIN. Well, let me tell you why I think, I hope that 

everyone here at the table would come to that same conclusion, and 

I am going to invite those who might disagree to say so. But let 

me just put a footnote to this, Mr. Chairman. I have started looking at the whole question of how we attract the very best lawyers 

as prosecutors and as defense attorneys, and one of the biggest single obstacles are student loans. Now we have the prosecutors of our 

State, Mr. Kinsella, we had a group that came in—you may have 

been part of the group. 

Mr. KINSELLA. Yes, about 2 weeks ago. 

Senator DURBIN. About 2 weeks ago, saying we need some help 

here. We cannot attract and keep the prosecutors that we need—

and the same is being said on the defense side—unless we find 

some way for student loan forgiveness, because the payments of 

new law students at some Chicago firms that Mr. Turow knows 

very well are over $100,000 a year just out of law school. And you 

just can’t get close to matching that. 

Currently, our only student loan forgiveness is extremely limited, 

and it only is for prosecutors. 

So I would hope that perhaps as we draw the conclusion we need 

competent counsel on both sides, we could also draw a conclusion 

that whatever your position on the death penalty, for goodness 

sakes, let’s have the very best men and women sitting at those tables who are going to be prosecuting and defending. I hope we can 

concede that. 

Is there anyone who would question that conclusion? If there is 

anyone here who says that competent counsel is not an issue, 

please tell me now. 

Mr. KINSELLA. No, and, Senator, you are right, we did meet from 

the—we were here from the National District Attorneys Association 

and representatives of the Illinois State’s Attorneys Association, 

and I think we talked about this general issue of prosecutors being 

under scrutiny and questioning of competency and all the rest, as 

well as defense counsel. And I think you were very supportive of 

the concept that this is an issue that needs to be addressed. And 

as a prosecutor and as someone who has to hire lawyers to come 

into court and prosecute and then try and keep them beyond 2 or 

3 years, it is difficult. 

Senator DURBIN. The second point I would like to make is on 

DNA testing. We had a horrendous massacre at a Brown’s chicken 

restaurant in the suburbs of Chicago about 9 years ago, and it 

went unsolved for the longest period of time. And then ultimately 

there was a break in the case, and a girl friend started talking, and 

the next thing you knew there were two suspects. And, fortuitously, 9 years ago, someone at a crime lab saved an unfinished 

chicken dinner that was in the restaurant that night and found 

enough DNA from the saliva on that unfinished chicken dinner to 

match with one of the alleged suspects. Incredible. Who would have 

dreamed that that unfinished chicken dinner 9 years later would 

be the key piece of evidence, or at least appear to be one of the key 

pieces of evidence? 

Now let me ask you about DNA testing. We didn’t know 9 or 10 

years ago this was even an issue. Now we know it can clearly exonerate a person. I have a bill with Senator Leahy as well as Senator 

34

Specter which basically says this is now a fact. It is like fingerprints. It is like the reality of tests today. Is there anyone here who 

disputes the belief that at least those on death row should have an 

opportunity where it is clearly relevant to the case and there is a 

chain of custody of evidence that can be drawn into the case that 

the person on death row should have the benefit of DNA testing 

before there is a final decision on their execution? Mr. Kinsella? 

Mr. KINSELLA. Senator, I think, in fact, Illinois was among the 

very first States that enacted a post-conviction DNA testing bill, 

and it was supported by prosecutors. If there is a person on death 

row—and keep in mind, there is a continuum going on here. DNA 

really kind of hit in the late 1980s, early 1990s, and a lot of the 

cases we are talking about either occurred right before that or right 

at that time. And the testing is far more sophisticated now than 

it was initially. 

And so I think it important. No prosecutor wants to see an innocent person executed. I don’t have horns in my head. I don’t stand 

before a jury and ask them to sentence someone to death lightly. 

I think it is a very, very serious thing. But, unfortunately, I strongly believe there are cases where that is appropriate. 

Senator DURBIN. The point I am getting to is this: We may disagree on the ultimate question are you for or against the death 

penalty, but it appears that reasonable people on both sides of that 

issue can agree that the system needs to be improved. And I think 

that is what the Commission said. The Illinois Commission didn’t 

call to abolish the death penalty. It had a long list of recommendations. And these two were included, among others. We didn’t have 

time or won’t have time to get to videotaping confessions and the 

like. 

But I would just say that it really, I think, creates the burden 

on those of us who support the death penalty to look honestly at 

things which everyone agrees on, for and against the death penalty, and say these are changes which should be made if we are 

going to continue this system. Good prosecutors, good defense attorneys, and the average American is going to require us to take this 

hard look at it. 

The last point I will make—and then I will yield to the chairman—is keep this in mind, too: we are focusing on a small, small 

percentage of people accused of murder who end up on death row. 

Think of the much larger percentage of individuals who got the 

break of serving a life term in prison who will be there the rest of 

their lives. They are not part of this debate, and they are not part 

of this discussion. But you have to believe that the same hard questions we are asking about death row should be asked as well about 

other elements of the criminal justice system. Painful as it is to 

consider, the fact is that a lot of these people are not even being 

represented in this hearing, and they should be. Our system of justice really demands that we take this hard look, if not for justice, 

certainly to make sure that the wrongful are actually convicted and 

punished. 

Thank you. 

Chairman FEINGOLD. I thank Senator Durbin for his tremendous 

contribution to this hearing and to this issue. I appreciate it very 

much. 

35

I ask unanimous consent that the statement of our chairman, 

Senator Leahy, be introduced at this time. Without objection. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman FEINGOLD. I guess we have time for a few more questions before 11 o’clock. I am going to ask Mr. Turow and Mr. Hubert and Mr. Bettenhausen to answer the same question. 

In her statement, Ms. White says that the Commission was unbalanced and skewed in favor of defendants and against victims 

and community interests, and Mr. Scheidegger suggests that one 

way to address victims’ needs is to reduce the death penalty appeals process. He suggests that the time from sentence to execution 

be no longer than 4 years. 

Could each of you comment on this criticism that victims’ rights 

were not adequately considered by the Commission and that the 

way to address victims’ rights is to mandate a time certain maximum period from sentence to execution? Mr. Turow? 

Mr. TUROW. Thank you, Mr. Chairman. 

We met extensively with the surviving family members of murder victims. We had a number of public hearings. It became clear, 

when it was the time for public discussion, that it was difficult for 

victim families to appear. And as a result, we had a number of private sessions with the—at the urging of all of the Commission 

members. We wanted to hear from victims. And we considered 

their points of view very carefully, and I, speaking personally, 

learned a great deal, because although I have been a defense lawyer, I was not, while I was a Federal prosecutor, directly involved 

in capital prosecutions, although I did have a very dear friend in 

the office who did do a capital case. 

And, you know, one of the things that I learned was that it is 

a unique loss to lose someone to a murder, and certainly victims 

have a right to a system that takes away any temptation for selfhelp and that relieves them of the ultimate indignity of thinking 

that that murderer might murder again. 

One of the things that is very important is that no one who is 

sitting here today is proposing that murderers be set free. The 

issue always in the capital punishment debate is whether life without parole or capital punishment is sufficient to meet the policy 

goals of our system. 

Chairman FEINGOLD. Thank you, Mr. Turow. 

Mr. Hubert? 

Mr. HUBERT. Yes, first of all, one of the members of the Commission, when he was a boy, his dad was brutally murdered. He spoke 

eloquently, very persuasively on the issue. He sensitized us to it. 

I refer you also to page 192 through 195 of the report. One subject that we identified clearly was victim issues, and in that report 

we indicated that, ‘‘The Commission met privately with a representative group of family members of homicide victims.’’ And we 

did. We took an entire day, and they gave us graphic and detailed 

and startling testimony. 

The Illinois Criminal Justice Information Authority provided important research papers that we included in our analysis, and, finally, we held focus groups with surviving members. 

36

It is hard to talk about a time limitation. It reminds me, when 

I was in law school, that there are very few per se rules in this 

country. Our jurisprudence does not lend itself to per se rules, because it ultimately excludes the exception, it ultimately leads to inhumane results. And, indeed, I believe that a time limit on the 

issue of reviewing whether someone has been—someone who is innocent has been given the death penalty is another example of 

that. 

So I would say that we did very clearly look at the victims’ issue, 

and I believe also that a time limit on this issue would be un–

American. 

Chairman FEINGOLD. Thank you. 

Mr. Bettenhausen? 

Mr. BETTENHAUSEN. A couple things, Senator. Thank you. 

First of all, the Commission asked for three studies on victims’ 

issues. While we talk about 85 recommendations, there are a lot 

more recommendations for change when you start looking at the 

appendix, and in that appendix are those three studies about victims’ issues and a number of things that prosecutors, defense attorneys, and just the criminal justice system needs to do in order to 

treat victims better, more fairly, and to assist them to go through 

this process. 

We also have to keep in mind that not all victims think alike on 

this issue. The Governor and I have met on a number of occasions 

with Bud Welch, who lost a daughter in Oklahoma when Timothy 

McVeigh bombed that building. The Governor has a friend from 

Kankakee who lost her sister, her brother-in-law, and an unborn 

child who is against capital punishment and doesn’t believe in it. 

But not all victims speak with the same voice on this particular 

issue, so we have looked at those issues. And I would also note, in 

terms of the time limits, the Commission also looked at the kinds 

of delays that you have in the system. The cases are not being investigated. They are not moving on. We proposed reforms that 

don’t allow the courts to continue to sit on these cases, but that 

they need to look at them and progress the cases through the 

criminal justice system so that we get final resolution, not only 

capital cases but also in our criminal justice system in general. 

So I would like to follow up, which goes to Senator Durbin’s 

question, the Governor has also been very concerned about the fact 

that we are making these kinds of mistakes in capital cases where 

we invest the most resources that we have. There have got to be 

many, many more innocent people who are sitting in our prisons, 

and that is one of the reasons why he commissioned another group 

to look at the criminal code and propose reforms to our entire 

criminal justice system. 

I would also add for Senator Durbin, a good friend of his from 

Springfield here, Bill Roberts, put together a report about the need 

to adequately fund the criminal justice system, and one of the 

things is loan forgiveness, and we had incorporated those recommendations as well in our report. And I would be remiss if I 

didn’t hit this because I have also talked with your staff and Senator Durbin’s staff. As you know, you have passed the Coverdell 

DNA Backlog Act to provide Federal funding for it. This is a serious issue for the criminal justice system, the backlogs that exist in 

37

DNA laboratories throughout the United States. Crimes could be 

solved, victims could be protected. We need—this is a Federal issue 

because the national database, in order to make it really work, 

needs to be manageable. And we need the help and we need the 

dollars. We are not seeing enough Federal funds coming to the 

States to make sure that we can truly use DNA in our criminal justice system. 

Chairman FEINGOLD. Thank you, Mr. Bettenhausen. 

I have one final question for Ms. White. You say in your statement that you disagree with recommendation 4 of the report, which 

would require all custodial interrogations of a suspect in a capital 

case to be videotaped. Is that accurate? 

Ms. WHITE. I think it is a good idea to do, and, in fact, what we 

do—because my office alone—I work in a jurisdiction of slightly 

less than a quarter of a million, and I got cut $200,000 this year 

in one year, and so my objection is just that it be mandated. What 

we like to do is do the interrogation, have the written statement 

made, and then for time sake, because we don’t have the personnel 

to transcribe and do all of these other things, then turn on a tape 

recorder or video, have the individual Mirandized, have him read 

his statement and say, yes, there are no further changes, there are 

no additions that I would like, and that is just from—we just don’t 

have the number of tapes and the money to——

Chairman FEINGOLD. So it is sometimes done in South Carolina 

but is not required? 

Ms. WHITE. The whole thing is not taped. What I like is—because sometimes, you know, in an—for one thing you don’t even 

know who the suspect is sometimes when you are starting. For instance, a domestic abuse case, I have got one pending right now 

where the guy calls in and says she committed suicide. Well, at 

first you think he had found a suicide. You start getting your tests 

back, your blood spatter and so forth, and you realize it is not, it 

is a murder. So the entire interrogation of him the first day, you 

didn’t even know he was a suspect. 

So at the point you know he is a suspect and he or she is giving 

a statement, instead of taping hours of various interviews as the 

system evolves——

Chairman FEINGOLD. Your concern is about resources. 

Ms. WHITE. Right. 

Chairman FEINGOLD. You don’t have any concern about the effect 

that the act of recording will have. 

Ms. WHITE. No, I actually——

Chairman FEINGOLD. You don’t know of any cases where suspects have been reluctant to talk on tape or that suspects give false 

confessions. 

Ms. WHITE. That would be one of my concerns, of course, is that 

they might be reluctant. But I think at that point, once they have 

given their statement and it is reduced to writing, then turning on 

a tape, that just prevents them from being able to come into court 

and say, ‘‘I didn’t know what I was doing.’’ So I actually prefer that 

they do tape the reading of the final statement so that that can’t 

be done and everybody knows that is really and truly the final 

statement. But that is just a little more economic. 

38

Chairman FEINGOLD. All right. Thank you very much. I want to 

thank everyone on the panel as we hit 11 o’clock. The record of this 

hearing will remain open for a week for Senators or interested parties to submit statements or other material. Within that time, Senators may submit questions for our witnesses. 

Let me just say finally that I think this was an excellent discussion. We got a lot of different viewpoints out. But I am absolutely 

convinced, based on the statistics that we all know, that not only 

were 101 people exonerated, although I cannot state the names, I 

am certain that there are innocent people on death row now and 

that innocent people have been executed, because it is not possible 

when you have one versus eight in terms of executions versus exonerations that that has not happened. And this country, with the 

principle of equal justice under law, has got to address this issue 

whether you are for or against the death penalty. And you have 

taken a great step today in moving us in that direction. 

I thank you and I conclude the hearing. 

[Whereupon, at 11:00 a.m., the subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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