Following is a glossary of terms and major cases that may be useful to students and others interested in the Illinois experience with capital punishment.
Accountability. Legal responsibility for the conduct of another. In Illinois, under 720 ILCS 5/5 - 2, a person is accountable if "before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." Thus, a person who participates in an armed robbery will be accountable, and may be convicted of, a murder that another participant in the crime actually commits.
Aggravating factors. Circumstances beyond the legal elements of a crime that tend to increase its enormity or seriousness. In states that maintain death penalties, including Illinois, murders are capital offenses only if at least one specific aggravating factor prescribed by law is present. Pursuant to 720 ILCS 5/9-1, Illinois prosecutors may seek the death penalty if the defendant knew the victim was an on-duty policeman or fireman, if the victim was a visitor, inmate or on-duty employee at a state prison, if the defendant was convicted of two or more murders, including prior murders, if the victim was killed during the hijacking of a public conveyance, if the defendant was paid to kill the victim, if the victim was under 12 years of age, if the victim was killed in a drive-by shooting, or if the murder was intended to prevent, or was in retaliation for, testimony in a criminal case.
Amicus curiae. Literally, friend of the court. A person who is not a party to litigation but has a strong interest in its outcome may petition the court before which the litigation is pending for permission to file an amicus curiae brief. Such briefs normally are filed in cases involving issues of broad public interest, such as civil rights cases.
Automatic review. Pursuant to 720 ILCS 5/9-1(i), every Illinois capital case must be automatically reviewed by the Illinois Supreme Court. While the Supreme Court has discretion to accept or reject other criminal appeals, it has no such discretion in capital cases. And while a defendant who has received any sentence of less than death may choose not to pursue appeals, no one can be executed in Illinois until his or her conviction and death sentence has been reviewed. Only after the Supreme Court has affirmed the conviction may further appeals be abandoned.
Baldus study. A study conducted by University of Iowa Professors David Baldus (Law) and George Woodworth (Statistics) and a University of Arizona Professor
Charles Pulaski (Law)assessing the importance of race in determining who received and did not receive the death penalty in Georgia . The study of some 2,500 murder cases found that Georgia prosecutors sought the death penalty in 70% of cases in which the defendants were black and the victims white, in 32% of the cases in which both the defendants and victims were white, in 15% of the cases in which both the defendants and victims were black, and in 19% of the cases in which the defendants were white and the victims black.
Batson v. Kentucky. U.S. Supreme Court decision, reported at 476 U.S. 79 (1986), prohibiting prosecutors from exercising peremptory challenges during jury selection in a racially discriminatory manner.
Bench trial. A trial held before a judge without a jury.
Blind plea. A guilty plea entered by a defendant without an agreement as to the sentence, as opposed to a plea pursuant to a plea bargain pursuant to which the prosecution has agreed to the sentence.
Bracy v. Gramley. U.S. Supreme Court case, reported at 117 S. Ct. 1793 (1997), granting Illinois death row prisoner William Bracy discovery in his effort to prove that his 1981 trial was rigged against him by the judge before whom he was tried and sentenced him to death, Thomas J. Maloney. Bracy claimed that Maloney took bribes to render acquittals or leniency in several murder cases and, in an effort to deflect suspicion of himself, unfairly treated defendants who had not bribed him. Maloney was one of 18 Cook County Circuit Court judges convicted on federal charges of taking bribes during the 1980s. The Supreme Court decision unanimously reversed a 1996 decision of the U.S. Court of Appeals for the Seventh Circuit, reported at 81 F.3d 684, rejecting Bracy's request to pursue his claim that his case was prejudiced by Maloney's corruption.
Brady v. Maryland. U.S. Supreme Court decision, reported at 373 U.S. 83 (1963), requiring the prosecution to provide defense counsel, upon request, with any exclupatory information in the possession of the prosecution.
Carey v. Cousins. A mandamus action resulting in a 1979 Illinois Supreme Court decision, reported at 397 N.E.2d 809, upholding the constitutionality of the Illinois capital punishment law enacted in 1977. The action was brought by Cook County State's Attorney Bernard Carey after Cook County Circuit Court Judge William Cousins, Jr., refused a prosecution request to convene a death penalty hearing for Charles H. McGee, whom Cousins, after a bench trial, had found guilty of murder, aggravated kidnaping, and armed robbery. Cousins ruled that a section of the law requiring that a death penalty hearing be held upon a request by the prosecution was unconstitutional because it "vests the prosecution with unlimited discretion to trigger death sentence proceedings" and thereby permits the death penalty to be "wantonly and freakishly imposed." A majority of four Supreme Court justices, Thomas E. Kluczynski, Robert C. Underwood, Daniel P. Ward, and Thomas J. Moran, disagreed, noting that the U.S. Supreme Court had rejected that argument in Gregg v. Georgia . The majority thus upheld the law and directed that a death penalty hearing be held for McGee. Justices Howard C. Ryan, Joseph Goldenhersch, and William G. Clark filed a lengthy dissent contending that the law was unconstitutional for the reasons stated by Cousins.
Challenge for cause. A request by a prosecutor or defense attorney that a prospective juror be excused from serving because his or her competency or objectivity might reasonably be questioned. For instance, a close relative of a police officer might be challenged for cause in a case involving the murder of a police officer, or a person who had been sexually assaulted might be challenged for cause in a rape case.
Concurring opinion. An opinion filed by an appellate court judge agreeing with the conclusions or the result of an opinion filed by another member of the court. For example, five U.S. Supreme Court justices each filed a concurring opinion in Furman v. Georgia.
Dissenting opinion. An opinion filed by an appellate court judge disagreeing with a decision by a majority of the judges comprising the court.
Exculpatory evidence. Any evidence tending to clear a defendant of a crime.
Felony murder. A murder committed during the commission of another felony, qualifying the murder as a potential capital offense. In Illinois, under 720 ILCS 5/9-1(c), a murder qualifies the person who committed it for the death penalty if it was committed during the commission or attempted commission of armed robbery, armed violence, robbery, aggravated criminal sexual assault, aggravated kidnaping, forcible detention, arson, aggravated arson, aggravated stalking, residential burglary, home invasion, or calculated criminal drug conspiracy.
Furman v. Georgia. U.S. Supreme Court decision, reported at 408 U.S. 238 (1972), declaring that capital punishment as then administered was unconstitutional. The decision was five-four, with the majority agreeing only on a terse paragraph holding that the death penalty violated the Eighth Amendment ban on cruel and unusual punishment because it was applied arbitrarily, capaciously, and often in a racially discriminatory manner. The decision struck down the death sentence of William Furman in Georgia and 557 others throughout the United States . Each justice in the majority, William O. Douglas, William J. Brennan, Jr., Potter Stewart, Byron White, and Thurgood Marshall, filed a separate concurring opinion. Dissenting were Justices Harry Blackmun, Warren E. Burger, William H. Rehnquist, Jr., and Lewis F. Powell, Jr.
Good time. An program designed to create an incentive for good behavior in prison. Most states enacted day-for-day good time provisions in the early Twentieth Century. These provisions reduced reducing the length of a prison sentence by one day for every day served without an infraction or conduct rules. In the mid-1990s, the federal government conditioned federal aid for prison construction upon requring prisoners convicted of certain violent offenses to serve 85% of their court imposed sentences. Hence, periods of incarceration were extended in many states.
Gregg v. Georgia. U.S. Supreme Court decision, reported at 428 U.S. 153 (1976), upholding a Georgia death penalty statute enacted in 1973 and signed into law by Governor Jimmy Carter. A year earlier, the Georgia law and other state death penalty laws had been struck down in Furman v. Georgia . Troy Gregg had been among the first sentenced to death under the new Georgia law. Since the Furman decision, Justice William O. Douglas, who had been in the majority in striking down the death penalty, had retired and been replaced by John Paul Stevens. Justices Byron White and Potter Stewart, who had been among the majority in the Furman case, joined Stevens and Justices William H. Rehnquist, Jr., Lewis F. Powell, Harry Blackmun, and Warren E. Burger to form a strong new majority in upholding the new Georgia law and, in companion cases, new death penalty laws in Florida and Texas. The majority held that constitutional defects had been cured because the new laws set forth specific aggravating factors qualifying a case for the death penalty, required judges and juries to consider mitigating evidence that might make the death penalty inappropriate in a given case, and provided for automatic review of all capital cases by the state supreme court to assure that the death penalty was not disproportionate to penalties imposed in similar cases. Only Justices William J. Brennan, Jr., and Thurgood Marshall contended that the new laws, like those they replaced, violated the Eighth Amendment ban on cruel and unusual punishment.
Habeas corpus. A writ directed to a person detaining another, commanding the former to produce the latter before a court. The primary function of habeas corpus, known as "the great writ," is to release a person from unlawful imprisonment. Although there is a little-known and little-used state habeas corpus procedure in Illinois, the term more commonly applies to a federal court action alleging that a criminal conviction was obtained in a state court in violation of the U.S. Constitution.
ILCS. Abbreviation for Illinois Compiled Statutes.
Inculpatory evidence. Any evidence that tends to establish the guilt of a person accused of a crime.
Marshall thesis. Hypothesis advanced by U.S. Supreme Court Justice Thurgood Marshall in Furman v. Georgia, 408 U.S. 238, 360-63 (1972) that if the American people were better informed about the ramifications of the death penalty they would be appalled and reject it.
McCleskey v. Kemp. U.S. Supreme Court case in which the defendant, Warren McCleskey, alleged that the Georgia death penalty statute was administered in a racially discriminatory and constitutionally impermissible fashion. The Court held by a five-four vote that, despite statistically reliable evidence of racial discrimination in the administration of the Georgia death penalty, McCleskey had failed to prove that race had been a factor in his specific case, 481 U.S. 279 (1987). The majority said "far stronger proof" would be required to overturn a death sentence. To hold otherwise, said the majority, would throw "into serious question the principles that underlie the entire criminal justice system." Dissenting Justice William J. Brennan, Jr., referred to the majority position as "fear of too much justice."In an interview after his retirement, Justice Lewis F. Powell, Jr., the author of the majority opinion, said the McCleskey decision was the one he most regretted in his years on the court. The majority included Justices William H. Rehnquist, Byron White, Sandra Day O'Connor, and Antonin Scalia. Dissenting, in addition to Brennan, were Justices Thurgood Marshall, Harry Blackmun, and John Paul Stevens.
Mens rea. Latin for a guilty mind.
Miranda rule. A rule established by the U.S. Surpeme Court in Miranda v. Arizona, 384 U.S. 436 (1966), requiring police officers to advise persons taken into custody that they have a right to remain silent, that statements they may make may be used against them, that they have a right to have an attorney present, and that if they cannot afford an attorney one will be provided for them.
Mitigating factors. Circumstances of crime that, although not constituting a justification, tend to reduce the degree or moral culpability or to merit mercy in sentencing. The Illinois death penalty law, 720 ILCS 5/9-1, requires judges and juries conducting death penalty hearings to consider various factors in mitigation if they are present. Possible mitigating factors specifically mentioned in the statute are that the defendant had no significant history of prior criminal activity, that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, that the defendant acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, and that the defendant was not personally present during commission of the act or acts causing death.
Motion in limine. A motion usually made before a jury trial to prevent prejudicial information from being given to the jury.
People v. Lewis. Illinois Supreme Court case reaffirming the Court's earlier decision in Carey v. Cousins upholding the 1977 Illinois capital punishment law. People v. Lewis, reported at 430 N.E.2d 1346 (1981), was the first Illinois death penalty appeal after Justice Seymour Simon replaced Thomas E. Kluczynski on the Court. In Carey v. Cousins in 1977, the vote to uphold the law had been four-three, with Kluczynski in the majority. Since Simon was accurately presumed to believe that the law was unconstitutional, it had been widely anticipated that it would be overturned four-three in Lewis. However, the three justices who had formed the minority in Carey v. Cousins, Howard C. Ryan, Joseph Goldenhersch, and William G. Clark, held in the Lewis case that they were bound by the common law doctrine of stare decisis to uphold the Court's earlier decision.
People. The aggrate mass of individuals who constitute a state; used in official names of criminal cases in Illinois .
Per se. Latin for by itself, in and of itself, taken alone, in isolation.
Peremptory challenge. The right of attorneys on either side in a criminal or civil case to excuse a prospective juror without stating a reason. In 1986, the U.S. Supreme Court in Batson v. Kentucky prohibited prosecutors from exercising peremptory challenges in a racially discriminatory manner.
Plea bargain. An agreement between a defendant and a prosecutor to a mutually satisfactory disposition of a criminal case, typically a guilty plea to a lesser charge or in exchange for a lesser punishment than the defendant likely would receive if convicted at a trial.
Plurality decision. An appellate decision in which a majority of the judges agree on a result but not fully on a rationale. For example, Furman v. Georgia was a plurality decision, in which the five U.S. Supreme Court justices comprising the majority each filed a separate opinion concurring in the result.
Pro se. Representing oneself in a legal proceeding rather than being represented by counsel.
Pro bono. Legal services provided free to a defendant.
Prosecutorial misconduct. Any imporper conduct by a prosecutor relating to the prosecution of a criminal matter, including withholding exculpatory evidence from the defense, fabricating or exaggerating the strength of evidence, conveing inadmissible information to a jury, and impoper closing or rebuttal argument.
Prosecutorial discretion. Authority vested in a prosecutor to decide important matters, including whether to pursue criminal charges in any given case and whether to seek or not seek the death penalty in a death-eligible case. Since the first constitutional challenge of the present Illinois death penalty in 1979, prosecutorial discretion has been a major issue because of its potential to render application of the death arbitrary and capricious. See Carey v. Cousins and People v. Lewis, this glossary.
Res judicata. Rule that a final judgment on the merits of a claim bars subsequent action involving the same claim.
Rice v. Cunningham. 1975 Illinois Supreme Court decision, reported at 336 N.E.2d 1, invalidating an Illinois capital punishment statute that had attempted to bypass jury sentencing by having death sentences imposed by three-judge panels.
Sentencing authority. Under the Illinois death penalty law, 720 ILCS 5/9-1, a defendant for whom the prosecution has requested a death penalty hearing following a murder conviction may elect to have the hearing held before either a judge or a jury. Whichever the defendant chooses becomes the sentencing authority.
Stare decisis. Latin for to stand by decided matters, a common law doctrine. In 1981, Illinois Supreme Court Justices Howard C. Ryan, Joseph Goldenhersch, and William G. Clark declared in People v. Lewis that stare decisis required them to uphold the Illinois death penalty statute, which they had voted to hold unconstitutional two years earlier in Carey v. Cousins.
Voir dire. The preliminary examination of jurors or witnesses pertaining to competency and objectivity.
Witherspoon. A term referring to a U.S. Surpeme Court case, Witherspoon v. Illinois, 391 U.S. 510 (1968), in which a William Witherspoon contended that the Cook County jury that had sentenced him to death had been biased toward imposing the death penalty because prospective jurors who had expressed conscientious scruples against capital punhsiment had been challenged for cause and excluded by the trial court. The Supreme Court vacated Witherspoon's death sentence and in doing so established a rule that prosecutive jurors who express scruples against the death penalty may be challenged for cause only if their scruples might prevent them from impartially implying the law.