Cecil Sutherland Daniel Ramsey
Cecil Sutherland, Daniel Ramsey

Illinois has had a moratorium on the death penalty for so long—as long as I’ve lived in the state—that it’s easy to forget the law is still on the books. But Kurt Erickson of the Herald Review thinks it’s finally going away next week.

That’s via CapitolFax, where the great commenter wordslinger writes: "since there’s no good answer [as to why an innocent man sat on death row for 15 years] — not from the state’s attorneys and others who want Illinois to once again carry out the death penalty — that’s one of the reasons that Quinn will sign the bill."

I think he or she is right. The other reason I think it’ll happen is that there hasn’t been much pushback on the ban since it left the state Senate. The only exception that comes to mind comes is from attorney general Lisa Madigan, whose opinion Pat Quinn would be bucking if he signs off on the ban.

Eric Zorn got a hold of Madigan’s letter to Quinn, which he calls "a dispatch from the wrong side of history."

The problem with the letter is that Madigan never addresses wordslinger’s question, which is the most obvious one. It’s not so much from the wrong side of history as it’s not from history at all; Madigan ignores the abysmal record that led to the moratorium in the first place, arguing only from revulsion. Her argument boils down to this:

"I think it is important to provide you with some details concerning the atrocious nature of these crimes …. [W]hen the facts and the law establish that a defendant has committed a heinous murder or murders, we must seek a just punishment that fits the despicable nature of the crimes"

It is, as John Paul Stevens describes in his recent New York Review of Books essay, an emotional appeal:

[David] Garland concludes that capital punishment today is “reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent among them.” Instead, the death penalty promotes “gratifications,” of “professional and political users, of the mass media, and of its public audience.”

There remain logical arguments for the death penalty, such as a 2005 paper by Cass Sunstein and Adrian Vermeule that makes the case for capital punishment’s deterrent effect, even if they’re not widely accepted. But Madigan cites only the heinous nature of the crimes as an argument for the death penalty.

The crimes Madigan brings up are certainly heinous, particularly that of Cecil Sutherland:

Cecil Sutherland was convicted of the kidnapping, rape and murder of lO-year-old Amy Schultz. Amy was abducted and brutally beaten before she was vaginally and anally raped. Sutherland then slit her throat with such force, she was nearly decapitated and stomped on her with such force that he damaged her internal organs.

It’s pretty bold of Madigan to cite Sutherland in an argument for the death penalty. Cecil Sutherland was one of the subjects of the Tribune‘s lengthy 1999 series on the failure of the death penalty in Illinois, part of the reason for the moratorium in the first place. Not wrong, necessarily, but bold. Why? As Ken Armstrong and Steve Mills describe, the forensic evidence used to convict Sutherland was far from definite. The conviction was overturned, and Sutherland was convicted a second time, in 2004, on the basis of better but still not definite evidence. He remains on death row; Charles Hoffman, Sutherland’s former attorney, has more in a letter to Zorn. (Of considerably less import, but it still bothers me a bit in a letter asking us to trust the diligence of the AG’s office: Madigan got the name of Daniel Ramsey wrong twice in the letter, calling him "David Ramsey." You can find the judgment against Ramsey, with a long and chilling outline of the crime, here [PDF]. Ramsey was once the youngest man on Illinois’s death row, at 19.)

But the relative silence on next week’s likely demise of the death penalty doesn’t bother me, or at least I’m not convinced it’s a bad sign. Stevens writes, quoting David Garland:

For Garland, the death penalty is “a strange social fact that stands in need of explanation.” He approaches it and debates around it “with the sorts of questions and concepts that anthropologists bring to bear on the exotic cultural practices of a foreign society they are struggling to understand.” In his view, an important reason Americans retain capital punishment is their fascination with death. While neither the glamour nor the gore that used to attend public executions remains today, he observes, capital cases still generate extensive commentary about victims’ deaths and potential deaths of defendants. Great works of literature, like best-selling paperbacks, attract readers by discussing killings and revenge. Garland suggests that the popularity of the mystery story is part of the culture that keeps capital punishment alive. As he explains in Chapter 11, current discourse about death reflects how the purposes that American capital punishment serves have changed over the years.

He concludes that “the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.”

If the death penalty owes its existence to Americans’ fascination with it, perhaps it can only be abolished not with a bang, but with a whimper.

Also worth reading: James Warren on the possible economic incentives for the death penalty, specifically death penalty trials.


Photos: IDOC