There is growing public unease about the fairness and reliability of capital punishment in the United States, writes Conor O'Clery, North America Editor
The following account of what happened to a prisoner on Illinois's death row was given last Friday to a hushed audience in a Chicago law school auditorium.
"In January 1987, 16 years ago, Madison Hobley lived with his wife and infant son in an apartment building on Chicago's South Side where he worked for a medical supply company. Madison had no previous convictions. He had married his childhood sweetheart.
"Madison awoke to the sound of a fire alarm. He thought he saw smoke coming from under the door of an apartment across from his. Suddenly he heard a whoosh and a cracking noise. There was a wall of fire and smoke between him and his wife and young son. He hoped he could rescue them. But it was not to be. Seven people died, including Madison's wife and his baby.
"Because he survived and his family did not, the police immediately focused on Madison Hobley as a suspect, ignoring information about a disgruntled former tenant evicted months before, for selling drugs. The now infamous Area 2 detectives, under the command of Lieut Jon Burge, grilled Hobley, beat him, "bagged" him and tried to get him to confess.
"Bagging involves taking a plastic typewriter cover over a suspect's face and head until the suspect loses consciousness from lack of oxygen. Burge and his men practiced it regularly. We know this now from the Chicago Police Office of Professional Standards.
"The police said Madison confessed, but the only writing that survived was his denial. Madison's trial lawyers [did not know] that a gasoline can, introduced into evidence during his trial, had been seized earlier at an unrelated fire. The defence also did not receive a fingerprint report that could prove Madison's prints were not on the can. A Cook County judge has refused to acknowledge any of this new evidence in hearings ordered by the state Supreme Court. So Madison Hobley has sat on death row and waited. Waited for justice."
This extraordinary indictment of the legislative system in Chicago came from the Republican Governor of Illinois, George Ryan. In his speech at DePaul Catholic University, he cited case after case in brutal detail to show that the death penalty system as operated in Illinois was "arbitrary and capricious and therefore immoral". Once a proponent of capital punishment, Ryan had declared a moratorium on executions three years ago, after 13 condemned prisoners were exonerated. His inquiries since then uncovered "a category of horrors" he said. If he hadn't reviewed the cases himself, he wouldn't believe it. The system was broken.
"Can you imagine? We nearly killed innocent people," he thundered, as he announced that he was pardoning Hobley, 42, and three other death row inmates.
The next day, his second-last before leaving office, Ryan commuted the death sentence of an additional 157 inmates, leaving Illinois's death row empty, prompting headlines of "Dead Men Walking", and igniting a smouldering debate across America on the fallibility of capital punishment.
The United States is one of the few industrialised nations that still executes its citizens. The number of prisoners on death row in the 38 states that impose the death penalty totalled 3,718 at the end of last year. Up to October, 56 prisoners were put to death in 2002 by the injection into their veins of a cocktail of poisons or by electric shock, more than half of them took place in Texas.
The US shares with the Congo and Iran the distinction of being one of the only countries to impose the death sentence on offenders under 18 at the time of their crime, according to Human Rights Watch, with Texas again taking the lead by executing three juvenile offenders last year.
The US administration is headed by proponents of the death penalty. As governor of Texas, George Bush approved almost 100 executions. US Attorney General John Ashcroft ensured that the 17-year-old alleged Washington sniper, Lee Malvo, would be tried in Virginia, where the death penalty applies to juveniles, rather than Maryland, where most of his alleged killings took place. On Wednesday this week a judge in Fairfax ruled that Malvo could be tried as an adult and will face execution.
But setbacks to capital punishment have been mounting. Over 100 wrongly-convicted people were released from death row in the last three decades, most in recent years, with the emergence of DNA evidence. This has increased public concern about the fairness and reliability of executions. Nine states apart from Illinois are currently reviewing their death penalty process. In April a commission appointed by Ryan in Illinois concluded that no system could ever guarantee absolutely that no innocent person would be sentenced to death.
A month later Governor Parris Glendenning of Maryland imposed a moratorium on executions there because of alleged racial bias against African Americans in death sentences, confirmed since in an academic review that puts his pro-capital punishment successor, Governor Robert Ehrlich, under pressure to maintain the ban.
In June, the conservative-leaning US Supreme Court held that the execution of mentally retarded convicts, permitted in 20 states, was unconstitutional. Soon afterwards it invalidated death penalty laws in five states where judges rather than juries make critical factual findings in death penalty trials.
Polls still show 70 per cent of people in favour of capital punishment in principle - the idea of retribution runs deep in American society - but doubts about its fairness in practice are having an impact. States are growing more reluctant to execute prisoners, according to Richard Dieter, executive director of the Death Penalty Information Center, which notes that for every eight people executed since the death penalty was reinstated in 1976, one was later exonerated. The number of death sentence verdicts is also declining - from 303 in 1998 to 155 in 2001, according to the Bureau of Justice Statistics.
The edict by Ryan has angered prosecutors and victims' families who say it over-rides the will of the courts. Ollie Dodds, who lost her daughter in the fire that police insist - and she still believes - was set by Holbey, commented, "I just wonder, if he had lost a daughter, if he would do it the same way". Ryan has been accused of wanting to be remembered for his clemency rather than for allegations of using state money for campaigns that have dogged his staff members. He is now gone and the death penalty is still on the books.
Listening intently to Ryan's speech last Friday was school teacher Kim Hobley, 32. As a University of Illinois student 10 years ago her church group adopted Madison Hobley for its prison ministry. When they met in prison she became convinced of his innocence. They fell in love and on October 5th, 1994, were married on death row. There are no pictures as the prison was on lock-down. Before the governor stopped speaking, she slipped out of the auditorium and drove to the prison to collect her husband.
The last week has been a whirlwind of celebrations for the couple. "It's like I'm reborn," said Hobley. His pastor, the Rev Larry Turpin of the United Church of Hyde Park, told the Chicago Tribune, "We knew the day of victory would be upon us." His friend's freedom justified his faith in God, Pastor Turpin said. "We have a miracle, we have a man back from the dead."