Ultimate Punishment (6 page)

Nor are the inequities that emerge in case-to-case comparisons the only troubling disparities in the application of the death penalty. Race, whose effect in capital cases is often misunderstood, provides an example of continued differential treatment. We commissioned Mike Radelet and Glenn Pierce, two leading death penalty researchers, to determine if there was any evidence that race played a part in who had been sentenced to death in Illinois since 1977. There was indeed a race effect, it turned out, but not what popular beliefs might suggest. In Illinois, according to the available records, roughly 70 percent of the persons convicted and sentenced for first-degree murder have been black (as have been more than 60 percent of the victims) and about 17 percent of the killers have been white (and about 25 percent of the victims). Once convicted, however, white murderers were sentenced to death at a rate two and one half times that for black murderers. The reason? One seems to be that the death penalty is given more frequently in the largely white, rural parts of the state. Also, in a racially divided society, whites are more likely to associate with, and thus to murder, someone white, and that—choosing a white victim—turns out to be the controlling variable. Killing a white person made a murderer three and a half times more likely to be punished with a death sentence than if he'd killed someone black.

The figures showing that death sentences are meted out far more often for murdering whites than for murdering blacks may be mitigated by various factors. Juries tend to engage in an unspoken calculation of the harm of a murder. No one would be surprised to see otherwise identical murders result in the death penalty when the victim was a beloved schoolteacher who was the mother of three young children, and a lesser sentence if the person killed was a crack-addicted drug dealer. On the face of it, race plays no part in these judgments, but because wealth, power, and status in the United States are still so unevenly distributed along racial lines, there would inevitably be a race effect, even if we were all color-blind. Furthermore, it is also fair to note that in a city like Chicago about half of murders are gang-related. Race is obviously part of the picture when we talk about gangs, but it is also significant in deciding whether capital punishment is appropriate in a given case that the victim, in messing with gangs, voluntarily placed himself in harm's way.

These factors palliate the systemic disparity, but do not seem to fully explain it. The numbers still demonstrate that race and the death penalty are linked, and suggest that the many decision-makers in the capital system—cops, prosecutors, and juries—may value white lives more highly than black ones. When the capital sentencing system places the murder of a white in the gravest classes of offenses 350 percent more often than it does the killing of a black, we are exposing potent issues, especially whether we are really punishing like crimes alike.

Examination of other variables tends to reinforce the impression that we are not. Geography, as I mentioned, also matters in Illinois. You are five times more likely to get a death sentence for first-degree murder in a rural area than would be the case in Cook County, which includes Chicago. Gender seems to count, too. Capital punishment for slaying a woman has been imposed at three and a half times the rate for murdering a man, while women are sentenced to death only 60 percent as frequently. The fact that variables like the race and gender of the victim and the location of the murder all impact on who gets the death penalty tends to call into question the notion that capital punishment vindicates a uniform or broadly shared morality, as opposed to a network of less admirable prejudices and preconceptions.

And variations related to race, locale, and gender do not take any account of the highly individualized factors that can influence the judgment of those who make the death penalty decision. The justices of the U.S. Supreme Court have debated whether the constitutional demand for consistent and reasoned imposition of capital punishment can ever be reconciled with the competing requirement that individual cases must be decided on their own peculiar facts. But the elements at play are not always limited to what aggravates or mitigates a particular matter. In one death row case with which I became familiar, defense lawyers insisted that the trial prosecutor elected capital punishment because he was leaving the State's Attorney's Office and had never tried a death penalty case. There was some circumstantial corroboration for the claim, but even if the desire for experience had only an unconscious role in the prosecutor's decision-making, it serves to emphasize how haphazard the determinative elements can be in who lives and who dies.

There are also paradoxical effects in the way sentences ultimately get carried out. Cases are sifted by the justice apparatus at widely varying rates. The tiny percentage of death row inmates who have actually been executed have been selected for that fate based on largely adventitious factors including the art of the lawyers who've represented them in post-conviction proceedings, the backlog in particular judicial systems, and the demonstrated ineffectiveness of their original lawyers. The worse the job done by the trial lawyers, both prosecutors and defense counsel, the longer condemned prisoners live, no matter how grave their crime or potent the evidence.

Standing back from it all, I found it hard to discern the guiding hand of reason. Adding these factors together—race, gender, geography, who the lawyers and jurors are, and the sheer serendipity of circumstances—one sees anything but the kind of bright-line proportionate morality the death penalty is intended to symbolize.

T
HE DENOUEMENT
for Chris Thomas offered lessons of its own. The matter was only in the middle innings of death penalty litigation when my partners and I started on it. Thomas had been tried, and the Capital Litigation Division of the Illinois State Appellate Defender's Office had filed an appeal for him. We began preparing the papers for the next stage, even before that appeal was resolved. The Illinois Supreme Court ruled against Chris in September 1997, and the U.S. Supreme Court denied further review the following June. In September 1998, we filed a post-conviction petition in the Circuit Court in Lake County. Basically, we cited new evidence, not considered at the trial, arguing that Chris's lawyers should have found that material, and that their oversights prejudiced Chris's case. (As I noted earlier, attacking the competence of prior counsel is, functionally, the only avenue that is open. All other issues are usually unreviewable on the theory that they should have been raised before.)

If our post-conviction petition was dismissed, or if we lost at a hearing, there would be another appeal to the Illinois Supreme Court, and, if unsuccessful, then another request to the U.S. Supreme Court for review. If all of that failed, then the post-conviction process would begin anew in federal court, with a petition for a writ of
habeas corpus
. New lawyers might well enter the case at that point, obliged to argue that I had fallen down on the job. If they lost at the trial level, they would have a federal appeal, and at least two different kinds of requests for review to the U.S. Supreme Court to look forward to, and even an attempt at a second
habeas
petition.

This procedural rundown demonstrates why many say that death penalty litigation is today's version of
Jarndyce v. Jarndyce
, unfathomably complex and unbearably protracted. Yet Chris's case offers an object lesson in why the law has developed this way. In October 1999, Judge Barbara Gilleran Johnson of the Lake County Circuit Court ruled on our petition, finding that Chris's rights were violated when the prosecutors introduced the results of a number of court-ordered psychiatric examinations against Chris in his sentencing hearing, essentially making Chris a forced witness against himself in violation of the Fifth Amendment and clear U.S. Supreme Court precedent. The judge determined that this error may have led to Chris's death sentence.

There was nothing fanciful about this ruling. The law was unambiguous, and the state did not even bother to appeal it. The fact was that the trial judge, the trial prosecutors, and Chris's trial and appellate lawyers had all glossed over a fairly obvious error. Worst of all, the Illinois Supreme Court had resolved Chris's appeal by finding that Chris had tried to exploit that psychiatric testimony, which was flatly untrue, as both the State's Attorney's Office eventually conceded and Judge Gilleran Johnson found.

None of the persons who'd made these mistakes had acted in bad faith. The body of law governing the death penalty has grown so complex that it challenges the abilities even of experts. The reason there is always further review is because there has to be, although over the years, I've sensed that the inevitability of additional scrutiny has a natural tendency to occasionally make judges and lawyers less scrupulous than the stakes would seem to require.

Reversal of Chris's death sentence was, of course, only a prelude to another death penalty hearing. My experiences in Thomas's case were antipodal to those in Hernandez's, not only because the client was guilty, but because I admired the way the prosecutors did their jobs. Mike Waller, the elected State's Attorney of Lake County (and later my colleague on the Commission), and Michael Mermel, the Chief of Felonies, defended the conviction and sentence ardently in court, but privately they maintained a willingness to hear out me and Dave Brodsky, the Lake County Public Defender, who often worked with us on the case. Notwithstanding the sharp disagreements I frequently had with the prosecutors, they approached both the law and the facts with integrity. Waller never shirked responsibility or apologized for his office's initial decisions about Chris, but he also freely acknowledged that much of the new information we brought him made the case look considerably different than it had originally.

With the help of Eileen McCarthy and Jonathan Lyon from the Capital Litigation Division of the State Appellate Defender's Office, we had assembled a much more extensive picture of Thomas's background, and it wasn't pretty. His mother bore him when she was fifteen and she soon abandoned her child for crime and drugs. Chris had been raised in a crack house in Chicago where people came and went to buy and use narcotics. There was a lock and chain on the refrigerator, and a hole through the floor in the bathroom, which allowed you to see to the basement. Chris and other children were routinely molested. There were tales of Chris being locked in a car with attack dogs as a gang reprisal against his mother, of Chris being dropped on his head from the roof of a garage, and, the story that broke my heart, of Chris being stripped naked and searched for money by adults in the house after he had visited with his aunt in Waukegan. Considering this new information, Waller agreed that the death penalty was not appropriate. Ultimately, we settled on a sentence of one hundred years, meaning that with good behavior Chris could be released at age seventy-one.

Given my client's history, I approached his resentencing with some apprehension. If Thomas went off on a tirade about how he'd been messed around by the system, it would have no practical consequence, but it would disgust the Gasgonia family and leave a bad taste in everyone's mouth. My hope was that he would keep still, or if he was listening to my entreaties, muster the words “I'm sorry.” After Judge Gilleran Johnson accepted the negotiated resolution of the case, she asked if Chris wanted to say anything.

“Yes, I would,” he answered, and my heart sank. “I want to address Mr. Gasgonia's family, if they would listen.” He then turned to Rafael's mother, brother, and sister, who were seated in the spectators' gallery, and wept as he spoke. “What I did was wrong. And I can't bring your brother back to you. No matter, no matter who I say this to, I hope that, I hope this can pay for it. I hope that you can forgive me for what happened.” He then offered to meet with the family and answer any questions they had about Rafael's final moments, in the hope that it might bring them some comfort. He also apologized for not acknowledging his guilt in court years before.

I had never anticipated this kind of turnaround. Having a future, even an unbelievably distant one, had wrought an enormous change in this young man. I was under no illusions that he could now safely return to the streets and win the Nobel Peace Prize. Chris wouldn't always rise so nobly to the occasion. But his ability to stand on the same moral ground as the rest of us, to acknowledge responsibility and apologize to the family, was a triumph of a high kind for him and for the law. Leaving the courtroom, Mike Mermel, a veteran prosecutor who always seemed to see through the posing the system requires on both sides, remarked to me, “That's about as close as you get to a Hallmark moment in this kind of thing.”

Thomas's turnabout after his death sentence was lifted is noteworthy, but so is the response of some prisoners to confinement. Alton Coleman, the serial killer whose murder spree terrified the Chicago area and much of the Midwest in 1984, behaved peaceably in the structured environment of the penitentiary. According to one of his lawyers, Coleman spent seventeen years in confinement without so much as a single disciplinary write-up. One of his jailers described him to the newspapers as “a model prisoner,” a compliment delivered following Coleman's execution.

Personally, I have never felt the correctional system's business is social work so much as isolating the people who aren't fit to live with the rest of us. There was little basis on which to predict Chris's growth, but from all indications it soothed the Gasgonias and left most everyone feeling his life was rightly spared.

Yet once we get into the symbolic business of punishing “ultimate evil,” matters such as rehabilitation and redemption inevitably become part of the calculus, since the defendant's acknowledgment of the claims of the prevailing morality lessens our need to punish in order to reaffirm those values. And once we travel that road, it becomes nigh on impossible to figure out who will be blinded by the light, and when. The only certainty is that execution will end any chance for it to occur.