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Jewish World Review Jan. 15, 2003 / 12 Shevat, 5763

David Limbaugh

David Limbaugh
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Consumer Reports

A staggering abuse of power | In commuting the sentences of all of his state's 167 death-row inmates Saturday, Illinois Governor George Ryan committed an extraordinary and monumental injustice, betraying most of the principles he claimed to be vindicating.

The governor, tainted by a licenses-for-bribes scandal that occurred during his tenure as Secretary of State, has been on a death penalty crusade since it was discovered a few years ago that 13 innocent people were on Illinois' death row. He immediately called a moratorium on the death penalty and established a commission to conduct a comprehensive review of it.

When the Illinois legislature declined to adopt any of the commission's 80-plus recommendations, the governor, in his omniscience, felt compelled to act on his own, just 48 hours before leaving office. "The legislature couldn't reform it, lawmakers won't repeal it, and I won't stand for it," Ryan declaimed. With the stroke of his pen, he commuted 164 death sentences to life without parole and reduced three others to 40 years in prison.

Professor Lawrence Marshall, legal director for Northwestern University's Center on Wrongful Convictions, beamed, "George Ryan could have passed the buck. Instead, he realized that the Constitution vested in him this solemn duty."

You're partially correct, professor. Ryan didn't pass the buck, he stole it, wholly usurping the judicial prerogative, defying the duly elected legislature and thwarting the constitutional process. There is little question that Ryan had the legal right to grant these commutations, but he did not have the ethical right to do so. Reasonable people can certainly disagree about the propriety of the death penalty, but this isn't about the death penalty. It's about a flagrant abuse of power.

The pardon power was never intended to be used by a chief executive as a tool to make himself a super-legislature or higher judicial body. Everyone understands the power should be used sparingly, in extraordinary circumstances, to correct manifest injustices. But in granting these across-the-board clemencies, Ryan used it not as a precision tool to right wrongs, but as a blunt instrument that surely caused as many injuries as it remedied.

We know from his comments that Ryan was not primarily trying to reverse individual injustices with his pardons, but arrogantly assuming the dictatorial role of single-handedly outlawing the Illinois death penalty for every case to which it currently applies. By his own admission, he was trying to address "the fairness of the death penalty system as a whole."

Ryan insists he reviewed every case in detail. But the Illinois Prisoner Review Board, after more than 140 clemency hearings, recommended clemency for only 10 cases. Ryan, at this point either dangerously intoxicated with power or with the sniff of a Nobel Peace Prize waiting in the wings, virtually ignored these recommendations and substituted his own judgment, just as he did with the legislature.

In making his announcement, Ryan said, "Because the Illinois death penalty system is arbitrary and capricious -- and therefore immoral -- I no longer shall tinker with the machinery of death."

Wrong, Governor. You are the one who acted arbitrarily and capriciously, and you did, in fact, tinker with the machinery of death by nullifying the death penalty in every case, making a mockery of justice and trampling on the rule of law and the graves of the victims. Statistics alone guarantee that you didn't examine the cases individually, because you granted clemency in every one. That defines arbitrariness and capriciousness.

While you condescendingly urged us to "remember that America is at its finest when the justice system is a beacon of truth," you did your best to undermine that truth with your categorical undoing of justice.

Given the inordinate number of errors in Illinois' capital cases, there is nothing wrong with that state reexamining each case where there is any evidence, DNA or otherwise, suggesting error. But there is no justification for the governor's magic clemency sweep.

What is most troubling about this revolting episode is that Ryan, and his sympathizers, act as though they alone occupy the moral high ground and that there is no downside to tampering with the administration of criminal justice after the fact, so long as it is to soften the sentence.

But these acts of leniency are not performed in a vacuum. Society has a vital moral interest in punishing wrongdoers (as prescribed by the jury). And can you imagine the wasted effort, energy and agony that went into working up these cases, prosecuting them and deciding them?

When you whimsically reverse the process of justice, you contribute to the cause of injustice. You rob society of a part of the fabric that holds it together. This is a sad day for justice in Illinois.

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.