Leigh Buchanan Bienen: Works

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Title: The Quality Of Justice In Capital Cases: Illinois As A Case Study
: Leigh B. Bienen
Publisher: Law and Contemporary Problems
Issue: Volume 61, No. 4, pp. 193-217
Description: Bienen uses Illinois as a case study of injustice in capital cases. The quality of justice in the trial and appeal of capital cases in Illinois is of a very low standard.

My colleagues are decent and good people. Just as the execution of an innocent person is inevitable, it is inevitable that one day the majority will no longer be able to deny that the Illinois death penalty scheme, as presently administered, is profoundly unjust. When that day comes, as it must, my colleagues will see what they have allowed to happen, and they will feel ashamed.

The federal constitutionality and moral authority of state capital punishment schemes are predicated upon the assumption that the system of state court appeals is thorough, reliable, and honest. The relatively recent restrictions on the availability of federal habeas corpus has removed the possibility of federal court review to “correct,” or adjust for deficiencies in, the administration of justice at the state level. By 1998, the procedural restrictions in capital cases on federal habeas corpus, which were designed to restrict constitutional challenges to state-imposed death sentences, had had their intended effect: It is now very difficult to receive a hearing in federal court on a constitutional challenge to a state death sentence. At the same time, the politics surrounding the election and retention of state judges has made it more difficult for judges to overturn or to refuse to impose death sentences without losing their judgeships. Recent analyses of juror decisionmaking in capital cases, moreover, suggest that jurors may be more fallible than previously thought.

Despite these difficulties, most Americans assume that when innocent persons are sentenced to death, or when death sentences are imposed in an unfair trial (for example, because of inadequate representation or prejudice and bias), the matter will be corrected when these facts come to the attention of appellate courts or the press. This article asks whether such assumptions about the quality of justice are warranted. It will do so by examining, as an example, the quality of appellate review in a single state, Illinois, since its reenactment of the death penalty in 1974.

The Illinois cases show us the contemporary death penalty in a large northern industrial state. The Illinois capital statute is typical-it provides for the imposition of the death penalty upon the request of the prosecution only for first-degree murder, only after the consideration of statutory aggravating and mitigating factors, and may be imposed by jury or by a judge without a jury. In theory, all the procedural due process protections are in place. Yet a recent study by the Chicago Tribune documented over 300 cases of prosecutorial misconduct in Illinois, including many in capital cases. The constitutional issues concerning the application of the capital statute, furthermore, have been extremely divisive in the Illinois Supreme Court and in the federal Court of Appeals for the Seventh Circuit (which has jurisdiction over federal collateral challenges to Illinois capital cases). At different points, some aspects of the Illinois capital statute have been declared unconstitutional by both federal and state judges…




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