Charles Walker was to have been executed by lethal injection two years ago this spring for the murders of a young couple during a robbery in 1983.
The sentence has yet to be carried out.
Although he has told the courts he wants to die, Walker remains one of 119 inmates on Death Row in Illinois prisons.
There have been 121 executions in this country since the U.S. Supreme Court reinstated the death penalty in 1976. But no one has been executed in Illinois since its current death-penalty law was adopted in 1977. The last execution here was in 1962.
The reason, according to lawyers on both sides of the issue, is that the federal courts-specifically the Supreme Court and the U.S. Court of Appeals in Chicago-have never confronted several key questions about the constitutionality of the state`s death penalty law. That may soon change.
The Supreme Court is now considering an Arkansas case that will have a direct impact on Walker`s fate. And the appeals court in Chicago will hear arguments this week on a case that gives it the opportunity for the first time to rule directly on the constitutionality of the Illinois death penalty statute.
A sharply divided state Supreme Court upheld the state`s death penalty in a controversial decision in 1979. But no one is likely to be executed here until the U.S. Supreme Court affirms a death sentence that has passed scrutiny by state courts and the lower federal courts, said Terence Madsen, chief of criminal appeals for the Illinois attorney general`s office.
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”Only a handful of cases have made their way to the federal system,”
said James Haddad, a law professor at Northwestern University. ”Before it gets to the federal courts, a case has to go through the state court system twice. You can`t execute somebody until he gives up his right to appeal or until all appeals have been exhausted.”
Every inmate sentenced to death in Illinois gets at least three series of appeals-each of which ends at the nation`s high court. Prosecutors say that whatever the public perception, appeals in Illinois are not taking
substantially longer than those in other states with the death penalty.
”The system itself is built to take a long time,” said Jack Donatelli, an assistant attorney general who handles death penalty appeals. ”We want to be very cautious. Prosecutors, defense lawyers and judges alike want to make sure we are considering everything we can before we execute somebody. We don`t want to execute somebody who doesn`t deserve it.”
Nationwide, inmates spend an average of six years and five months on Death Row, according to Justice Department statistics. Another study says that the average time between the date of crime and execution for those convicts who have contested their death sentences is slightly more than eight years.
The inmates whose fates appear to be most closely linked with that of the state`s death penalty statute are Walker and Charles Silagy, who was sentenced to die for stomping and stabbing to death two women, his girlfriend and her roommate, in 1980.
Walker asked his lawyers to abandon further appeals after the state Supreme Court upheld his conviction and death sentence on direct appeal in late 1985. Last March, the appeals court in Chicago rejected efforts by death- penalty opponents who sought to carry an appeal to the federal courts on Walker`s behalf.
The U.S. Supreme Court heard arguments recently on a similar case and is expected to decide this spring whether relatives, death-penalty opponents or other inmates have the right to appeal on behalf of a convict who doesn`t want to fight execution.
Silagy`s death sentence has been upheld twice by the state Supreme Court. But last May, a U.S. District Court judge in Danville turned aside several narrow objections raised by Silagy`s lawyers and instead ruled that the state`s death penalty was fundamentally unconstitutional.
Judge Harold Baker said the state`s statute allows prosecutors too much discretion in deciding whether to seek the death penalty and gives defense lawyers too late notice that capital punishment will be sought, both of which violate U.S. Supreme Court rulings that say capital punishment cannot be imposed in an arbitrary or capricious manner.
Baker`s decision was the first time that a federal judge had ruled directly on the constitutionality of the state`s death penalty law. His ruling will be challenged Wednesday during oral arguments before the appeals court here.
In written arguments filed with the appeals court, Donatelli contended that the Illinois statute meets constitutional principles and is similar to the laws of the 36 other states that allow capital punishment.
”No state death penalty statute contains any special type of guidelines that govern any decision by prosecutors to seek or not seek the death penalty. An Illinois prosecutor exercises his discretion in the same manner as prosecutors in other states,” Donatelli said.
But Silagy`s lawyers argued there are important differences between the Illinois law and the laws in other states that have been upheld by the U.S. Supreme Court.
Prosecutors in Illinois don`t have to decide whether to seek the death penalty until the end of the trial, and the ”variables that enter into post- conviction sentencing discretion are amorphous and subjective and create a significantly greater risk of arbitrariness,” according to written arguments filed by Daniel Yuhas, Timothy Gabrielson and Patricia Mysza, of the state appellate defender`s office.
Baker`s ruling relied heavily on the dissenting opinions in two death-penalty decisions by the state Supreme Court. The dissents have been a rallying point for death penalty opponents in Illinois for 10 years. Four of the seven justices on the state high court during much of the 1980s had voiced doubts about the constitutionality of the death-penalty law in dissenting opinions-but not at the same time or in the same case.
The justices who dissented from the 1979 ruling joined later majorities, relying on the principle that past decisions set precedents to be followed in future cases. In recent years, though, the state high court has regularly upheld the death penalty.
Baker`s ruling also is one of the arguments raised by those seeking to delay Walker`s execution.
”An execution under an unconstitutional statute would seriously damage the integrity of the entire criminal justice system and the public interest,” according to the written arguments filed with the U.S. Supreme Court.
The appeal notes, though, that Walker ”continues to express a desire to forego further legal efforts on his behalf and to be put to death.”
The justices have been given a copy of a letter Walker wrote in 1988 to a federal judge rejecting any further legal action on his behalf. ”Before I was sentenced I had told my sister that if I was sentenced to death,” Walker said, ”that one appeal had to be filed according to law but after that I was going to stop my appeals and ask for an execution date.”
Although lower courts concluded Walker was mentally competent and acted voluntarily in making this decision, the opponents dispute this, citing, for example, Walker`s ”long history of alcohol abuse and the resulting brain damage,” as well as ”his lung disease, his dramatic change in attitude from a strong desire to live to an expressed desire to die. . . . ”
The Supreme Court has delayed action on the Walker`s appeal, apparently until it decides a similar appeal filed on behalf of R. Gene Simmons, who killed 16 relatives and friends during a rampage through Russellville, Ark., in 1987.
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Simmons has declined to appeal his death sentence, a decision lower courts have concluded was voluntary. But Jonas Whitmore, a fellow Death Row inmate, asserts he can maintain an appeal on behalf of Simmons. He also contends that the Constitution requires state courts to review all death sentences.
During the oral arguments, a majority of the justices seemed skeptical of Whitmore`s claim that he can challenge another`s death sentence. If the justices rule that Whitmore lacks the proper standing to challenge the Arkansas law, they would not have to decide the mandatory appeal issue.
Such a decision would probably set in motion Simmons` execution-and Walker`s, too, if the high court determines the Arkansas case is controlling.