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  With the help of Eileen McCarthy and Jonathan Lyon from the Capital Litigation Division of the State Appellate Defender’s Office, we had assembled a much more extensive picture of Thomas’s background, and it wasn’t pretty. His mother bore him when she was fifteen and she soon abandoned her child for crime and drugs. Chris had been raised in a crack house in Chicago where people came and went to buy and use narcotics. There was a lock and chain on the refrigerator, and a hole through the floor in the bathroom, which allowed you to see to the basement. Chris and other children were routinely molested. There were tales of Chris being locked in a car with attack dogs as a gang reprisal against his mother, of Chris being dropped on his head from the roof of a garage, and, the story that broke my heart, of Chris being stripped naked and searched for money by adults in the house after he had visited with his aunt in Waukegan. Considering this new information, Waller agreed that the death penalty was not appropriate. Ultimately, we settled on a sentence of one hundred years, meaning that with good behavior Chris could be released at age seventy-one.

  Given my client’s history, I approached his resentencing with some apprehension. If Thomas went off on a tirade about how he’d been messed around by the system, it would have no practical consequence, but it would disgust the Gasgonia family and leave a bad taste in everyone’s mouth. My hope was that he would keep still, or if he was listening to my entreaties, muster the words “I’m sorry.” After Judge Gilleran Johnson accepted the negotiated resolution of the case, she asked if Chris wanted to say anything.

  “Yes, I would,” he answered, and my heart sank. “I want to address Mr. Gasgonia’s family, if they would listen.” He then turned to Rafael’s mother, brother, and sister, who were seated in the spectators’ gallery, and wept as he spoke. “What I did was wrong. And I can’t bring your brother back to you. No matter, no matter who I say this to, I hope that, I hope this can pay for it. I hope that you can forgive me for what happened.” He then offered to meet with the family and answer any questions they had about Rafael’s final moments, in the hope that it might bring them some comfort. He also apologized for not acknowledging his guilt in court years before.

  I had never anticipated this kind of turnaround. Having a future, even an unbelievably distant one, had wrought an enormous change in this young man. I was under no illusions that he could now safely return to the streets and win the Nobel Peace Prize. Chris wouldn’t always rise so nobly to the occasion. But his ability to stand on the same moral ground as the rest of us, to acknowledge responsibility and apologize to the family, was a triumph of a high kind for him and for the law. Leaving the courtroom, Mike Mermel, a veteran prosecutor who always seemed to see through the posing the system requires on both sides, remarked to me, “That’s about as close as you get to a Hallmark moment in this kind of thing.”

  Thomas’s turnabout after his death sentence was lifted is noteworthy, but so is the response of some prisoners to confinement. Alton Coleman, the serial killer whose murder spree terrified the Chicago area and much of the Midwest in 1984, behaved peaceably in the structured environment of the penitentiary. According to one of his lawyers, Coleman spent seventeen years in confinement without so much as a single disciplinary write-up. One of his jailers described him to the newspapers as “a model prisoner,” a compliment delivered following Coleman’s execution.

  Personally, I have never felt the correctional system’s business is social work so much as isolating the people who aren’t fit to live with the rest of us. There was little basis on which to predict Chris’s growth, but from all indications it soothed the Gasgonias and left most everyone feeling his life was rightly spared.

  Yet once we get into the symbolic business of punishing “ultimate evil,” matters such as rehabilitation and redemption inevitably become part of the calculus, since the defendant’s acknowledgment of the claims of the prevailing morality lessens our need to punish in order to reaffirm those values. And once we travel that road, it becomes nigh on impossible to figure out who will be blinded by the light, and when. The only certainty is that execution will end any chance for it to occur.

  12

  WHEN THEY MURDER AGAIN

  WHEN I TALKED about abolishing capital punishment with law enforcement professionals, whether they were correctional officers, police, or veteran prosecutors, I often heard the same riposte:

  “Well then, what do you do about Henry Brisbon?”

  In these circles, Henry Brisbon is Illinois’ poster child for the death penalty. In person, it’s hard to see what all the fuss is about. Brisbon looks a little like Eddie Murphy, a solidly built African American of medium height, appearing somewhat bookish in his heavy glasses. He comes across the way Murphy did playing Axel Foley in 48 Hrs.: an amiable, quick-witted rogue greatly amused by himself. No one disputes that Brisbon is extremely bright. When I visited Henry, he had already read a great deal about the Commission on Capital Punishment and offered me predictions about which potential reforms would be road-blocked politically. His guesses were as well informed and reasonable as those of most commentators.

  But the movie character Henry Brisbon most closely resembles in terms of his conduct is Hannibal Lecter. He is a veritable killing machine. Brisbon is the “I-57 murderer,” a crime so infamous many Illinoisans still cringe at those words. On the night of June 3, 1973, Brisbon and three “rap partners”—his term—forced several cars off the interstate that runs south of Chicago. In one vehicle Brisbon found a woman, whom he forced to undress. He then discharged a shotgun in her vagina. From another car he rousted a young couple, compelling them at gunpoint to lie down in a field. Brisbon instructed them to “make this your last kiss,” then shot both in the back.

  The crimes went unsolved for years. Brisbon’s role was uncovered only when he confessed to a law librarian in the penitentiary where he was serving a stretch for rape and armed robbery. By the time Brisbon could be brought to trial, the U.S. Supreme Court had declared the death penalty unconstitutional, and Brisbon was instead sentenced to 1,000 to 3,000 years, still probably the longest prison term ever imposed in Illinois.

  In October 1978, eleven months after the sentencing, Brisbon murdered again. He placed a homemade knife to the throat of a guard, whom he locked in his cell, and then led several inmates to another prisoner, whom a witness said Brisbon stabbed repeatedly. The death penalty had been restored by now, and Brisbon was sentenced to be executed. The evidence in his sentencing hearing included proof of yet another murder Brisbon had allegedly committed prior to his incarceration, when he placed a shotgun against the face of a store clerk and blew him away, and of Henry’s role in leading a prisoner uprising at Stateville penitentiary in September 1979 in which several guards were assaulted.

  Even after his death sentence in 1982, Brisbon has continued to compile an impressive disciplinary dossier. By now he has had over 250 disciplinary tickets, and just a small sample of his alleged misbehavior since he was first sentenced to death includes stabbing two other inmates, stabbing a guard, hitting a guard in the face with a wooden plank, and throwing a thirty-pound weight against the head of a fellow prisoner, who was seriously injured.

  Brisbon is currently housed at the Tamms Correctional Center, referred to in the trade as CMAX, a “closed” maximum-security facility, and as a “Super-Max” in popular parlance. Tamms is where the worst of the worst arrive, roughly 250 bad guys culled from an Illinois prison population of almost 45,000, most of them gang leaders or men with intractable discipline problems, especially a history of attacking other prisoners or guards. Inmates remain until they have demonstrated an ability to curb their inclinations to violence. There is no indication that Brisbon will be leaving soon.

  From the time I was appointed to the Commission, I requested the chance to visit Tamms, an opportunity that is extended to few outsiders. But I regarded seeing Tamms as critical. Henry Brisbon’s execution might not deter other people from killing, but it will definitely keep Brisbon from murdering a
nyone else. Thus, the pivotal question for me was whether there were means besides execution to control the Brisbons of the world, the prisoners whose records suggest that they are so bad to the bone that they are clearly prone to murder again if given the opportunity. If the conditions of their confinement cannot reliably prevent this, the argument in favor of capital punishment in Brisbon’s case, and others like it, seems overwhelming to me. It is simply unjust to force a kind of lottery on correctional officers, doctors, nurses, and other inmates waiting to see which one of them will eventually be maimed or murdered.

  So, after dozens of requests, in the spring of 2002, I was allowed to make the trip with Matt Bettenhausen and Nancy Miller, then a lawyer with the Department of Corrections, who provided continuing expertise to the Commission. Tamms is located near the bottom point of Illinois, where the state is farther south than parts of Kentucky. The Mississippi, a wide body of cloacal brown, floods the nearby lowlands, creating a green region of marshes along the orange sandstone bluffs. At the foot of one of these stone outcroppings, on twenty-six acres of a vast savanna-like grassland, stands the Tamms closed facility.

  The terms of confinement in Tamms CMAX are admittedly grim. Inmates are permitted no direct flesh-to-flesh contact with other human beings. Each prisoner is held twenty-three hours a day inside a seven-by-twelve-foot block of preformed concrete, weight approximately thirty-two tons, which has a lone window to the outside, roughly forty-two by eighteen inches and segmented by a lateral steel bar. The cell contains a single stainless steel fixture holding both a toilet bowl and a sink, and a concrete pallet over which a foam mattress is laid. The door is punch plate, steel pierced by a network of half-inch circles almost like bullet holes, which permits conversation but prevents a prisoner from doing the mayhem possible when he can get his hands through the bars. Once a day, an inmate’s door rolls back under remote control, and at the end of the corridor of cells, the doorway slides open, allowing exit to an outdoor area, twelve by twenty-eight feet, half of it roofed and all of it surrounded by thirteen-foot concrete walls. For an hour, the prisoner may exercise or just breathe fresh air. Showers are permitted on a similar remote-control basis, twenty minutes, several times a week.

  For those who remain recalcitrant—and few do—there are still privileges that may be suspended. For example, misbehaving inmates can be put on meal loaf, which means that, rather than usual fare, they are fed a brown mass of mashed meat, spinach, and meal, among other ingredients. I sampled meal loaf and noted an undertaste of molasses. Fresh from the oven, it wasn’t terrible, but several days eating nothing but this would certainly catch my attention. Prisoners who cooperate are progressively rewarded, with high favor represented by the installation of a TV, housed in a clear plastic case to prevent anyone from turning it into a weapon. (Listening to the Warden, George Welborn, describe the infractions of inmates, I was reminded again that criminality stands beside art as a testament to human imagination. Even the paranoid schizophrenics who engage in group therapy inside steel booths that resemble the isolation chambers on old TV quiz shows manage to steal the monopoly money used in their weekly games.)

  Like most penal institutions, Tamms has its critics. In addition to the objections from the left that the isolation and restriction of Super-Maxes constitute cruel and unusual punishment, there are also complaints from the right. Tamms is expensive, in part because, blessedly, it is not full. The roughly $52,000 spent in 2002 on each Tamms prisoner was two and one half times the approximately $20,500 it cost on average to imprison an inmate in Illinois’ other penitentiaries. You don’t have to be Archie Bunker to think Henry Brisbon isn’t worth it, but of the 165 or so persons on Illinois’ death row at the time I visited, only 3 of them were at Tamms. In other words, execution is not an alternative for 99 percent of the prisoners at Tamms. Like other cost issues, this one does not impact in a significant way on the pro and con of capital punishment.

  Instead, the ultimate question is simply this: Does it work? At Tamms, they seem to have succeeded, not merely with Brisbon but with other inmates. In 2001, among a population of the most violence-prone prisoners in Illinois, there was a total of fifty-two assaults on staff, almost all of them throwing food or excrement at guards. And of course Tamms’s existence has an immeasurable effect on behavior at other institutions, since it poses a threat, even for a lifer, that there is another form of tangible punishment for serious misconduct.

  The Warden at Tamms when I visited, George Welborn, is tall and lean, with a full head of graying hair, a mustache, and dark, thoughtful eyes. He speaks with the twang of southern Illinois. Welborn, who was instrumental in planning the facility, struck me throughout as a person of intelligence and decency who believes very much in the ultimate mission of corrections, which is to protect the rest of us from the inmates and the inmates from themselves. We talked about many things in the course of the day, but before we left I asked him the sixty-four-dollar question.

  “Do you realistically believe, George,” I said, “that you can keep Henry from killing anyone again?”

  George Welborn is under no illusions about Brisbon’s character. He was Assistant Warden at Stateville in 1979 when Henry had a critical role in an inmate uprising in which a number of guards were taken hostage, and as a result Welborn testified against Brisbon in the proceedings that led to his death sentence. George took his time with my question, before guardedly answering yes.

  “Henry is a special case,” he said when we discussed Brisbon again by phone, several weeks later. “I would be foolish to say I can guarantee he won’t kill anyone again. I can imagine situations, God forbid…But here the chances are minimized. It’s not nearly as likely as anywhere else.” Welborn said he felt confident that they could keep Brisbon from fashioning homemade weapons, as Henry has done in all the other penitentiaries in which he’s been held. And the Warden also believed that the design of the facility and the technology available gave the Tamms staff the means to subdue Brisbon even in the event of the unforeseen. But still, George said. Still with Henry, no one could make guarantees.

  13

  THE COMMISSION’S REPORT AND ITS AFTERMATH

  ON APRIL 15, 2002, at a crowded news conference, the members of the Commission publicly presented our report to Governor Ryan. Minutes beforehand, we had met privately with him. Paul Simon stood and praised George Ryan for his courage in declaring the moratorium. The Governor looked at Simon a moment.

  “What else was I supposed to do?” he asked in his usual direct fashion, as if it had never occurred to him that he could, like so many other contemporary politicians, dismiss or ignore the errors of the capital system.

  The report we handed the Governor contained eighty-five recommendations for reform. Roughly 90 percent were made unanimously. Although some members felt our most sweeping proposals went too far, we had reached a broad consensus on several points.

  First, although the Capital Litigation Trust Fund and a series of rule changes implemented by the Illinois Supreme Court for death cases represented significant progress on a number of fronts, we all agreed that reform of the capital process remained essential along the line. None of the institutional players—investigators, prosecutors, defense lawyers, or judges—were functioning as well as they could. Second, we were united in believing that the death penalty had been imposed too often in Illinois. Even at a rate of one case in fifty, too many of the wrong cases had reached death row. Third, we were uniform on the need for better funding. To state it simply, if the citizens of Illinois want a system of capital punishment, they have to be willing to pay for it. Better training for police, lawyers, and judges, better defenses, better data collection—reforms we regarded as indispensable—all require more money.

  Principal among the changes we urged were those aimed at lowering the risks of convicting the innocent. In response to the number of dubious confessions that appeared in the cases of the thirteen exonerated defendants, we recommended that all station house interrogatio
ns of suspects in potential capital cases be videotaped throughout. We also proposed altering lineup procedures to provide for more reliable eyewitness identifications. We urged that courts conduct pretrial hearings to determine the reliability of jailhouse informants, who often surfaced in the thirteen cases, testifying to supposed confessions in exchange for lightened sentences. To provide some minimal supervision of jury fact-finding, the Commission proposed that a death sentence not be imposed without the concurrence of the trial judge, who has heard all the same evidence as the jurors. We also suggested banning the death penalty when it is based solely on the uncorroborated testimony of a lone eyewitness or a single accomplice.

  In order to lessen the seeming randomness with which some defendants end up on death row, we proposed that the twenty different eligibility criteria for capital punishment in Illinois be trimmed to five: multiple murders, murder of a cop or firefighter, murder in a prison, murder aimed at hindering the justice system, and murder involving torture. One could argue in perpetuity about which classes of murder should or should not be included, but we were unanimous that eligibility factors needed to be reduced. The list approved by a Commission majority reiterated to a great extent the original statute passed in 1977, with one major exception: felony-murder, which was the avenue that brought Chris Thomas and a number of other less worthy cases to death row, would be crossed off the list. In addition, we urged creation of a statewide oversight body, composed principally of prosecutors, to attempt to bring more uniformity to death penalty elections, so that Illinois law would be interpreted similarly in all localities, and so that decisions of individual State’s Attorneys to seek execution would be subjected to limited peer review.