Washington Illinois Gov. George Ryan's commutation of the death sentences of all 167 inmates in Illinois prisons is another golden moment for liberals that underscores how many of their successes are tarnished by being explicitly, even exuberantly anti-democratic.
Speaking at Northwestern University to a celebrating audience of opponents of capital punishment, Ryan, two days from leaving office under a cloud of scandal and the threat of indictment, said of capital punishment: "The Legislature couldn't reform it. Lawmakers won't repeal it. But I will not stand for it." Translation: The chief executive vowed to not carry out the consensus of the people, as carefully codified by their elected representatives, in conformity with U.S. Supreme Court standards.
In 1972, the Supreme Court churned out nine opinions in ruling 5-4 that capital punishment as then administered was unconstitutional. Two liberal justices, undeterred by the Constitution's text, said capital punishment inherently violates the Eighth Amendment prohibition of "cruel and unusual" punishment. But the Constitution presupposes capital punishment (see the Fifth Amendment's safeguards for persons in jeopardy of being "deprived of life"). Some justices said that America's "evolving standards of decency" had rendered capital punishment "cruel and unusual." This was promptly refuted when 37 states (including Illinois) re-enacted capital punishment to conform to the court's guidelines.
Ryan, at Northwestern, referred to Justice Potter Stewart's statement that capital punishment is "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Meaning, the death penalty is imposed capriciously. But Ryan's riposte to capriciousness was capriciousness cubed -- undiscriminating commutations, most of them benefiting killers about whose guilt there is not a smidgen of doubt.
Conservatives, especially, should remember that capital punishment is a government program, so skepticism is warranted. But liberals who say capital punishment is intolerable, given the elusiveness of certainty, should remember three things:
First, certainty often is not elusive. It was not regarding the guilt of the man and woman who, wanting a child, stabbed to death a pregnant Illinois woman, used scissors to carve from her the near-term fetus (the child lived), and killed two of her three other children.
Second, certainty cuts both ways. DNA evidence, which has helped exonerate some death row inmates, can also provide unassailable proof of guilt.
Third, in the last 25 years, 13 men have been released from Illinois' death row -- three of them in 1999 -- as a result of exonerating evidence. This might seem to justify the inference that, nationally, some innocent persons have been executed. But none of the many groups opposed to capital punishment provides the name of any such a person.
By causing courts to multiply restrictions on the imposition of capital punishment, opponents of such punishment have helped make its administration capricious, thereby doubling the arguments against it: Capriciousness, and the fact that this reduces the death penalty's ability to deter, and even the ability of social science to measure its deterrent power. So the remaining realistic case for capital punishment is proportionality: It is disrespectful of life, and of the victims' survivors, not to take a life for an especially heinous murder.
Scott Turow, the Chicago lawyer and novelist, became a temperate, almost reluctant opponent of capital punishment while serving on a commission that Ryan formed to recommend improvements in the administration of capital punishment. However, in his splendid new novel, "Reversible Errors," about a mistaken conviction in a capital case, Turow articulates the way capital punishment serves those whose lives are permanently lacerated by grieving for murder victims:
"Their suffering arose not merely from their loss but also from its imponderable nature. Their pain was not due to some fateful calamity like a typhoon, or an enemy as fickle and unreasoning as disease, but to a human failure, to the demented will of an assailant and the failure of the regime of reason and rules to contain him." For the grieving, capital punishment meant "an end point, a sense of an awful equilibrium being restored to the world."
Ryan acted 11 days before Wednesday's 30th anniversary of the Supreme Court's Roe v. Wade abortion rights decision, a golden moment of "progressive" policy-making. It was made by a judicial fiat that overturned the evolving consensus on abortion policy set by 50 state legislatures. Ryan will be remembered as one of Illinois' worst governors, which is saying something. He will be so remembered, if not for his administration's improprieties, then for his disregard of democratic values, and his cavalier laceration of the unhealable wounds of those who mourn the victims of the killers the state of Illinois condemned.