02/24/2011 07:04 pm ET Updated May 25, 2011

Why the Legislature Is Right and Lisa Madigan Is Wrong About the Death Penalty

As Illinois Governor Pat Quinn continues to ponder a bill to abolish the death penalty, one document before him is a letter from Attorney General Lisa Madigan. In that letter, Madigan refers to several pending cases and urges the governor to veto that bill.

As a former prosecutor who now trains future prosecutors and works with family members of murder victims, I disagree with the Attorney General, even in the face of the gruesome circumstances she cites in her letter. The death penalty has failed in Illinois, and should not be resuscitated based on briefly-described anecdotes.

Madigan's argument, when closely examined, supports neither the interests of victims nor the imperatives of justice.

First, Madigan's underlying principle, that the most heinous murderers deserve no other sentence than death, is rooted in an ancient and wrong idea -- that the life of a murderer can be extinguished to somehow avenge the killing of someone innocent and dearly loved. People who have actually lost a sister, a brother, a parent to murder often reject this crude equivalence, and even find it offensive.

The more heinous and despicable the crime committed by the offender, the more these victims' family members wish to have nothing in common with him. They do not want to sink to his level, to replicate his actions by killing. That would move them a step toward who he is and a step away from who their loved ones were, people who loved and valued life, who were kind and good.

Moreover, the worse the crime committed by the offender, the less possible it is to say that the scales of justice can be balanced by taking that offender's life. One of the cases Attorney General Madigan mentioned involved a total of five victims, three of them children. How can one possibly say that the life of one offender is just punishment for even a single life of those innocent victims? To make the life of the killer equivalent to that of the victim is an obscenity. There is no punishment "fit" to a crime such as that, and when Madigan states exactly that in her conclusion, it is against the very spirit of those who have been killed. The best we can do is to incapacitate the killers and honor the memories of those five victims, including those dear children, in a living, breathing, ongoing way by doing our utmost to prevent similar tragedies from befalling others.

As someone who studies prosecutions (and who remembers well my own experiences of holding lives in judgment), I recognize a second and equally dangerous fallacy in Madigan's reliance on "worst cases." She has identified exactly the dynamic -- a narrow focus on the shocking facts of a case -- that led to so many innocent people being placed on death row in Illinois. The bare truth is that it is in these worst, most compelling cases that we too often convict the wrong person in haste, because the cry for retribution is so strong.

When a child is shot, a policeman killed, a pregnant woman and her husband gunned down for someone's thrills, we are justifiably incensed. However, that public mood creates tremendous pressure on public servants like Madigan to bring someone to trial, and that pressure has led too often to the pursuit of weak cases that led in the end to exoneration. It leads us right back to the scandal of innocents on death row that shocked us into action to reform the death penalty in the first place.

The Attorney General's reliance on the most heinous cases certainly has political appeal, but it rests on two offensive ideas: That the life of the worst kind of killer equals that of an innocent, and that executing someone for these worst cases is worth the risk of killing a different kind of innocent -- the type who have been exonerated in this place, in our time, to the shame of us all who participate in the always-imperfect machinery of criminal justice.