DAILY HERALD

January 07

Death penalty may be key in elections

By John Patterson Daily Herald State Government Editor

SPRINGFIELD - It's been nearly two years since Gov. George Ryan halted executions in Illinois, citing a "shameful" system that had freed more inmates than it had executed.

Now, the panel he assigned to come up with ways to fix that system appears to be on the verge of issuing its recommendation. But death penalty opponents fear it may be too late. Ryan rapidly is approaching lame duck status, and his political muscle with lawmakers has withered.

Regardless, political and legal observers say when the final report is presented, it will propel the death penalty to the forefront of the 2002 campaign season and force candidates and lawmakers to make tough decisions they've largely avoided so far.

Supporting both

Talk to almost any candidate for governor or attorney general - the two offices involved in the death penalty process - and they'll say they support the death penalty, but support Ryan's moratorium as well.

Such answers likely won't cut it once the report is out.

"The reason the fireworks haven't started too much is because the governor's commission report has been sitting out there," said Jane Bohman, executive director of the Illinois Coalition Against the Death Penalty. "Everyone's been waiting to see what the report says."

Further bolstering the status of the death penalty as an important campaign issue is the recent setting of a March 15 execution date for Luther Casteel, the 43-year-old Elgin man who killed two people and injured at least 15 others inside a tavern.

The execution date will be delayed due to appeals and Ryan's moratorium. Also drawing attention to the issue is the pending decision in DuPage County on whether Marilyn Lemak will be sentenced to die for killing her three children in their Naperville home.

Aside from focusing attention on the death penalty debate, both cases show how the capital punishment system has continued largely unhindered by Ryan's death penalty moratorium.

Three in 2001

While no one has been executed, state records show at least 11 people have been sentenced to death row since the moratorium was declared, including Casteel and two others in 2001.

Death penalty opponents fear these cases and the dozens of other death row cases that preceded the moratorium never will face the higher legal standards Ryan's committee is expected to recommend.

Feeding that fear is a recent Illinois Supreme Court decision in which the justices refused to apply their own new, tougher rules for death penalty cases to old cases. Those rules spell out qualifications for defense lawyers in cases where the death penalty is an option.

Only 15 days after the rules went into effect, the court considered the case of a downstate man convicted of abducting and killing a 6-year-old girl in 1991. The man's defense lawyer had never handled a death penalty case before, a clear violation of the new rules.

The majority of the justices, however, chose to uphold the conviction because the appeal had been filed nearly 10 days after a legal deadline. The issue of the defense lawyer's qualifications was not addressed except by three justices who dissented and accused their colleagues of ducking an "eye-opening discussion" on the death penalty.

Exactly how old cases should be handled by a new system is one of the issues legal observers expect the death penalty commission to address in its report. Members of the commission wouldn't comment on what may or may not be in the report. Ryan's point man on death penalty issues was not available for comment.

20 cases coming up

If the commission doesn't tackle this topic, the next governor and attorney general almost certainly will. More than 20 inmates now on death row are expected to run out of appeals in the next few years, forcing the next governor and attorney general to act on their cases.

Under the Illinois system, the attorney general is responsible for asking the state Supreme Court for a final execution date. The governor ultimately signs the final death warrant. Currently, Attorney General Jim Ryan has agreed not to request any execution dates while Gov. George Ryan's moratorium is in place.

Death penalty opponents argue this looming situation is good reason to extend the moratorium, if not end the death penalty, in Illinois. Bohman said the situation could politically paralyze the next governor. If executions resume, the next governor will have to deal with execution after execution rather than other issues, she said.

Others argue the moratorium has been in place too long already and crime victims are being denied justice. State Sen. Patrick O'Malley, a Palos Park Republican running for governor, has called on the governor to lift the moratorium and resume executions. O'Malley said Ryan overstepped his authority in halting all executions.

Both Jim Ryan, the attorney general, and Lt. Gov. Corinne Wood also are seeking the GOP nomination in the governor's race. Both said they support the death penalty and the moratorium and will wait to see what the death penalty committee's report says before commenting on specifics.

Similar stances came from the four Democrats running for governor: former Chicago schools CEO Paul Vallas, Chicago Congressman Rod Blagojevich, former state education superintendent Michael Bakalis, and former state Attorney General Roland Burris.

Several political analysts said they expect the death penalty to play a decisive factor in this year's elections, perhaps nowhere more so than in the Republican primary for attorney general. DuPage County State's Attorney Joseph Birkett and Robert Coleman, a lawyer fro�River Forest, square off for the GOP nomination.

Birkett has been an outspoken critic of Ryan's moratorium. Following the January 2000 moratorium, Birkett was the first prosecutor in the state to announce he would seek a death sentence and the first to successfully argue for a death sentence in the post-moratorium era.

He is now deciding whether to seek the death penalty against Marilyn Lemak, the Naperville woman who killed her children. In 2000, only two days after Ryan announced his moratorium, Birkett announced his intention to seek the death penalty for Lemak if he won a conviction in the murder case. Since that conviction was decided, he has not commented, opening the possibility he instead could seek a life sentence.

Coleman, who supports Ryan's moratorium, already is saying he would not seek the death penalty for Lemak if it were his decision. His aides said they believe the death penalty issue will help voters differentiate between Coleman and Birkett.

Make or break issue?

Birkett opposes the moratorium, arguing that reforms have been made and cases should be reviewed individually.

"I don't think one issue is going to make or break an election," said his spokesman, Paul Darrah.

In the Democratic race for attorney general, both John Schmidt, a former Justice Department (news - web sites) official, and Chicago state Sen. Lisa Madigan said they support the death penalty and the moratorium.

Despite the attention being given to the issue, even death penalty opponents don't hold out much hope for meaningful reform happening this year, largely because of election year politics. Whereas the governor was able to pull together several major deals early in his term, even he has acknowledged his waning political strength as of late. Recently, lawmakers balked at helping him cut the budget. The governor, a Republican, is not running for re-election, and Democrats control the House while Republicans control the Senate.

But the debate expected in this election year ultimately could result in far more meaningful action, Bohman said.

"The credibility of the state is on the line," she said. "They may not want to deal with it. But they have to deal with it."