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What killed Illinois' death penalty

By Steve Mills, Tribune reporter

9:15 p.m. CST, March 9, 2011

If there was one moment when Illinois' death penalty began to die, it was on Feb. 5, 1999, when a man named Anthony Porter walked out of jail a free man.

Sitting in the governor's mansion, George Ryan watched Porter's release on television and wondered how a man could come within 50 hours of being executed, only to be set free by the efforts of a journalism professor, his students and a private investigator.

"And so I turned to my wife, and I said, how the hell does that happen? How does an innocent man sit on death row for 15 years and gets no relief," Ryan recalled last year. "And that piqued my interest, Anthony Porter."

To be sure, by the time Porter was set free, the foundation of Illinois' death penalty system already had begun to erode by the steady stream of inmates who had death sentences or murder convictions vacated: Rolando Cruz and Alejandro Hernandez in the Jeanine Nicarico case, the men known as the Ford Heights Four, Gary Gauger.

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But for decades, the debate over capital punishment rarely strayed from whether it was right or wrong, a moral argument that was waged mostly by a narrow group of attorneys and abolition supporters that could be easily dismissed. Public opinion polls showed little movement. Death sentences and executions hit record levels.

Inmates like the serial killer John Wayne Gacy, whose guilt was never in question, were put to death and caused little controversy. But when a miscarriage of justice was discovered and a death row inmate was set free, the police and prosecutors contended that it was an isolated incident, an anomaly. They got little argument.

In November 1998, the Center on Wrongful Convictions at Northwestern University hosted 29 exonerated death row inmates at a conference, putting a human face to the death penalty's errors. Then, with Porter's case still in the spotlight, plus a series of stories in the Chicago Tribune later that year that illuminated deep frailties in the state's system of capital punishment, the debate over the death penalty was transformed.

Suddenly, it was about accuracy. No longer were the mistakes anecdotal. The problems were systemic.

Opposition to the death penalty began to win new supporters, people who looked at the issue pragmatically, not just morally, and were dismayed by the mistakes. Politicians no longer saw the issue as a third rail with voters. Ryan, who declared a halt to all executions in 2000, found it did not cost him politically.

A decade after Ryan declared a moratorium, 61 percent of voters questioned in a poll did not even know the state still had a death penalty, reflecting a stalemate of sorts that had emerged between supporters of abolition and those who wanted to bring back capital punishment. No one was being put to death, yet death row again was receiving inmates, though at a slower pace than before the Ryan moratorium.

Had Republican Bill Brady won the November general election instead of Democrat Pat Quinn, the state still would have a death penalty, and the new governor almost certainly would have lifted the moratorium and allowed executions to resume.

Ultimately, supporters of abolition in the General Assembly — frustrated that sufficient reform had not been enacted and stung by the costs of trials and appeals — voted to abolish the death penalty. On Wednesday, Quinn signed abolition into law and commuted the sentences of 15 inmates who had been sentenced to death since the moratorium.

"That isolated image of Anthony Porter is crucial," said Lawrence Marshall, a former legal director of the Center on Wrongful Convictions and a key player in the abolition of the death penalty. "But it only makes a difference when it comes amidst all of those other incidents. It shows (the problems weren't) isolated. This was a trend."

With Quinn's signature, Illinois became the fourth state to abandon the death penalty over the last decade, and the isolation of the use of capital punishment, mostly in the South, is a national trend, said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.

The New Jersey Legislature voted to drop the death penalty in 2007. A New York appeals court ruled the death penalty unconstitutional in 2004. And in 2009, the New Mexico Legislature voted to repeal capital punishment; Gov. Bill Richardson signed the bill into law.

Other states have convened panels to study the death penalty and have considered legislation to end it, prompted by the exonerations of condemned inmates; capital punishment's high cost, particularly in a down economy; and the widening support for life in prison without parole as an alternative sentence, Dieter said.

"The life-without-parole option is not going away," Dieter said last week. "People have a lot of lingering doubts about the possibility of a person being wrongly convicted. They are willing to convict them, but when it comes to the death sentence, they want to be doubly sure of their guilt, even more than the system requires."

Between Porter's release and Quinn's signing of the abolition bill, the U.S. Supreme Court narrowed the use of the death penalty, saying the mentally disabled and those who commit their crimes as juveniles cannot be executed.

The number of death sentences dropped. The number of executions dropped. Even cases thought to be death penalty slam dunks offered surprises that suggested the death penalty was in decline. James Degorski and Juan Luna, the two men convicted in the murders of seven people in January 1993 at a Brown's Chicken & Pasta restaurant in Palatine, also were spared the ultimate punishment.

Luna, convicted in 2007, and Degorski, convicted in 2009, were sentenced to life in prison without parole.

Even Andre Crawford, convicted of 11 brutal murders on the South Side that made him one of the area's most prolific serial killers, escaped the death penalty in 2009 when he was given life in prison without parole. While some observers saw those sentences as signs the death penalty was withering, the truth may have been more complicated. In the Brown's Chicken cases, the two juries voted 11-1 for death. Crawford's jury voted 10-2 for death, said the prosecutor in the case, James McKay, chief of the capital litigation task force for the Cook County state's attorney's office.

That, he said, was evidence jurors still were receptive to the death penalty but were stymied by holdouts.

"It tells me that our jurors overwhelmingly want the death penalty," said McKay, a veteran prosecutor.

What's more, he said, the future without the death penalty may prove more costly than with it.

"These murder trials don't go away just because the death penalty won't be a sentencing option," McKay said. "With the death penalty off the table, there'll be even more trials. There'll be no incentive to plead guilty. I do not believe for one second that taking the death penalty off the table will save the state of Illinois any money whatsoever."

With no death penalty, Illinois' last execution — its 12th since capital punishment was reinstated in the mid-1970s — will remain that of Andrew Kokoraleis, who was put to death by lethal injection in March 1999, while Ryan was governor, for the mutilation murder of an Elmhurst woman.

And while many people believe Illinois never executed an innocent man, others disagree. The 1995 execution of Girvies Davis for a downstate murder was long controversial and relied heavily on a disputed confession, one the police got when they took him out of jail in the middle of the night and, according to Davis, threatened him.

In fact, Davis confessed to numerous crimes that night and, authorities later acknowledged, many of the confessions were false, with other people later convicted of those crimes. On the other hand, Davis admitted to taking part in other crimes that led to the deaths of innocent people, though he insisted he never killed anybody himself.

One of Davis' attorneys once wrote in an essay in the Tribune that "nothing short of finding the real murderer would have saved Davis' life." So it is that the execution still haunts the lawyer, David Schwartz. He called the death penalty's end, nearly 16 years after Davis was put to death by lethal injection, "bittersweet."

"It bothers me when I hear people say that the state of Illinois never executed a person for a crime they did not commit," Schwartz said. "Because they did with Girvies Davis."

Tribune reporter Dahleen Glanton contributed.

smmills@tribune.com