Our Pledge To You


Even with death penalty, defense lawyer’s ‘overall strategy’ unlikely to change

If the death penalty returns to Illinois, as Gov. Bruce Rauner proposed Monday, it might not have much of an effect on the strategy of criminal defense attorneys.

In fact, the language in Rauner’s amendatory veto would raise the burden of proof on prosecutors.

“I don’t think it would change how a defense lawyer approaches his or her job,” said Jeffrey Urdangen, clinical associate professor of law and director for the Center of Criminal Defense at Northwestern University. “It wouldn’t change the overall strategy, which is to prevent the prosecution from meeting its burden.”

In an amendatory veto announced Monday, Rauner proposed a new criminal charge — “Death Penalty Murder” — that could be brought against people accused of murdering police officers or two or more people. As opposed to “beyond a reasonable doubt,” the proposal requires defendants to be found guilty “beyond any doubt.”

But even if someone was found guilty of Death Penalty Murder, imposing a death sentence would still be left to the discretion of a judge. The death penalty would not apply to defendants who “prove intellectual disability.”

“The judge shall sentence the defendant to death, unless he or she finds that the defendant has, by a preponderance of the evidence, presented sufficiently substantial evidence to prove intellectual disability or that imposition of the death penalty would result in a manifest miscarriage of justice, in which case the judge shall sentence the defendant to life imprisonment without the possibility of parole,” the proposed legislation reads.

The Cook County State’s Attorney’s office did not respond to questions about how a change in the law would impact prosecutors.

Martin Preib, vice president of Chicago’s Fraternal Order of Police and frequent critic of the state’s attorney’s office, also did not respond to a request for comment.

Father Michael Pfleger blasted the proposal as one that “enforces the racist mentality that some lives are more valuable than others.”

“If he had wanted it for everyone, I would have disagreed with the principle, but when he puts police lives [as] more valuable than the black and brown children dying everyday then perhaps Gov. Rauner should be charged with a hate crime!” Pfleger said in a statement.

For his part, Rauner acknowledged that, “There is ample evidence that juries and judges are more likely to sentence black men to death than others, resulting in obvious bias based on race and gender.”

However, the proposal states that “If a person is justly convicted beyond all doubt of a crime for which death is deserved by a carefully crafted definition, then the only sentence objectively consistent with the demands of justice is death.”