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We have examined the April 2002 Report of the Governor's Commission on Capital Punishment prepared at the request of Illinois Governor George H. Ryan. We have done so with particular reference to the relevance of recommendations made in that Report to New York's death penalty law. Below, we identify aspects of New York's capital punishment law and criminal justice practices that in our view are most urgently in need of attention in light of the Illinois Commission's recommendations. We paraphrase the Illinois Commission's recommendations, rather than reproducing them verbatim, and reference those recommendations by number. In the interest of space, we have commented on only a minority of the 85 recommendations offered by the Illinois Commission. By omitting reference to many recommendations we do not wish to imply that they have no relevance to New York's death penalty laws and practices.

Police and Pretrial Investigations

The Illinois Commission identified several reforms that should be implemented in police practices to help safeguard the reliability of evidence produced during pretrial investigations. To the best of our knowledge, New York law does not require several of the recommended practices, which are designed to help guard against the risk that innocent people will be convicted of capital murder and sentenced to death.

• The police should prepare a list of all existing evidence, including exculpatory evidence, provide a copy of that list to the prosecutor's office, certify compliance with those obligations, and provide the prosecutor access to all investigative materials in their possession (Rec #2).
• The police should videotape custodial questioning of suspects in homicide cases that occurs at a police facility (Rec #4), and electronically record interviews of all significant witnesses whose testimony foreseeably will be challenged at trial (Rec #8).
• With respect to line-ups and photo spreads, the police should ensure where practicable that the officer conducting the identification procedure does not know the identity of the primary suspect (Rec #10); should display suspects sequentially (i.e., one-by-one) rather than simultaneously and ask the witness to respond affirmatively or negatively as each suspect is presented (Rec #12); videotape identification procedures, where practical (Rec #15); and should receive training from experts in several facets of investigations including the risk of false testimony by in-custody informants and by accomplices, the dangers of prematurely focusing an investigation on a particular suspect (tunnel vision), the risk of wrongful convictions in homicide cases, the duty of police to investigate and report on potentially exculpatory evidence, forensics evidence, and the risk of false confessions (Rec #16).

Eligibility for Capital Punishment

New York law currently provides for capital punishment eligibility upon conviction for any one of 13 enumerated categories of first degree murder, one of which is intentional killings committed during the course of specified felonies. Analysis revealed that 40% or more of capital murder prosecutions in Illinois involved the "course of a felony" eligibility factor. It has been estimated that 28%-45% of New York homicides, although not necessarily qualifying as capital murder, are connected to a contemporaneous felony. Acker, "When the Cheering Stopped: An Overview and Analysis of New York's Death Penalty Legislation," 17 Pace L. Rev. 41, 69-70 (1995). Concerned that the breadth of eligibility factors under Illinois law exacerbates problems associated with prosecutorial discretion, including geographic disparities in patterns of capital prosecutions across the state, race-of-victim discrimination, and others, and believing that capital punishment should be reserved for only the most heinous killings, the Illinois Commission recommended significant restrictions in the statutory range of death-penalty eligible murders.

• The list of death penalty eligibility factors (presently 20 under Illinois law) should be reduced to a smaller number (Rec #27). The "course of a felony" factor should be eliminated, as should several others, resulting in five categories of murder that should be death-penalty eligible: (1) murder of a peace officer or firefighter; (2) murder of any person within a correctional facility; (3) murder of two or more persons (either in separate transactions or a single transaction); (4) torture murder; and (5) murders designed to obstruct the administration of justice, including the killing of witnesses, jurors, judges, prosecutors, and investigators of crimes (Rec #28).

Prosecutors' Selection of Cases for Capital Punishment

Under New York law, prosecutors in the 62 counties throughout the State have unfettered discretion to seek or refrain from seeking the death penalty in first-degree murder cases. They are bound by no fixed procedures in arriving at their charging decisions, nor are their decisions subject to fixed standards or to oversight or review once made. Preliminary data suggest widely divergent capital charging practices throughout the state, including disparities between the practices of New York City-area prosecutors and upstate prosecutors. For example, although fewer than one in five (18.5%) of the state's murders occurred outside of New York City and its surrounding environs during the first six years of the death penalty law's existence, three out of five death-penalty notices (60.5%) were filed by upstate prosecutors (see New York Capital Defender Office, "Capital Punishment in New York State: Statistics from Six Years of Representation,"). The Illinois Commission was concerned about such problems in its state, including idiosyncratic charging practices, geographic disparities in capital prosecutions throughout the state, and the threat that impermissible extralegal variables, including race of homicide victims, might consciously or subconsciously influence prosecutors' decisions about whether or not to seek the death penalty. The Commission made recommendations about procedures to guide and review Illinois prosecutors' capital charging decisions.

• The state attorney general and state attorneys' association should recommend and adopt procedures that prosecutors should follow when deciding whether or not to seek the death penalty in eligible cases (e.g., decision by committee, following consideration of aggravating and mitigating factors and strength of the evidence) (Rec #29).
• A statewide review committee-composed of four prosecutors and a former judge-should be mandated by law to review and approve local prosecutors' decisions to seek the death penalty in individual cases. Absent such legislation, a voluntary review process should be initiated, coupled with a presumption that the Governor will commute death sentences resulting from prosecutions that were not previously reviewed and approved (Rec #30).

Pretrial Proceedings

A primary factor resulting in Governor Ryan's imposing a moratorium on executions in Illinois and convening the Commission to study and recommend reforms in the state's death penalty system concerned the alarming documented fact that 13 innocent people in the state were convicted of capital murder and sentenced to death. Several of the wrongful convictions were based on discrete types of evidence, including eyewitness identification testimony, testimony by accomplice witnesses, and testimony provided by in-custody informants (i.e., jailhouse snitches). One of the Commission's recommendations focused on the latter category of evidence. New York law has no analogue to the Commission's recommendation.

• Pretrial evidentiary hearings shall be conducted to determine the admissibility of testimony to be offered by in-custody informants at either the guilt or penalty phase of capital trials. The prosecution shall have the burden of proving, by a preponderance of the evidence, that such witnesses' testimony is reliable, taking into account several factors bearing on their credibility. The prosecution may file an interlocutory appeal from a judge's ruling that such testimony is inadmissible (Rec #52).

Imposition of Sentence

In New York, as is currently the case under Illinois law, the trial judge is bound by the jury's sentence in capital cases except for certain narrow circumstances amounting to legal irregularities. Moreover, capital convictions and sentences can be based on evidence found legally sufficient by juries. The Illinois Commission made significant recommendations in these respects that are relevant to New York.

• Following a jury verdict that a defendant should be sentenced to death, the trial judge must indicate on the record whether s/he concurs in that result; if the judge does not concur, the defendant shall be sentenced to life imprisonment without parole (Rec #66).
• The death penalty should not be imposed in any case relying solely on (a) the uncorroborated testimony of an in-custody informant regarding the defendant's alleged confession or admission, or (b) the uncorroborated testimony of a single eyewitness or an accomplice witness (Rec # 69).

Funding

The death penalty is expensive. Implementing several of the reforms recommended by the Illinois Commission to help promote fairness, accuracy, and the quality of justice (in the words of Illinois Governor Ryan) with respect to capital punishment will require the commitment of substantial additional resources.

• "Leaders in both the executive and legislative branches should significantly improve the resources available to the criminal justice system in order to permit the meaningful implementation of reforms in capital cases" (Rec #76).

With respect to this recommendation, we note the intense competition for scarce governmental resources in New York in the wake of the September 11 attacks and other demands on the state's budget. We additionally note the New York executive's recent initiatives to impose additional restrictions on-rather than attempt to supplement-the compensation and resources available to the indigent capital defense bar.

Conclusion

The Illinois Commission labored for two years in producing its 85 recommendations regarding the administration of capital punishment in that state. The Commission was chaired by former federal judge and former Assistant Illinois Attorney General Frank McGarr, and co-chaired by former Senator Paul Simon and former U.S. Attorney and now private attorney Thomas Sullivan. Ten of its remaining 11 members were attorneys, including several prosecutors or former prosecutors, defense attorneys, private practitioners, and the former chief of staff of the Chicago Police Superintendent. William H. Webster, a former federal judge and federal prosecutor and the former director of the CIA and FBI, served as Special Advisor to the Commission. At the conclusion of its Report, this remarkably diverse group observed specifically that: "The Commission was unanimous in the belief that 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." This same warning that death penalty systems inevitably expose innocent people to the risk of conviction and execution applies with equal force to New York's capital punishment law.