Example: Among the dozen men freed from Illinois's death row in recent years are Rolando Cruz and Alejandro Hernandez, who were convicted in 1985 of the abduction-rape-murder of 10-year-old Jeanine Nicarico in 1983. With the local prosecutor up for re-election in three weeks, the police, under intense pressure to make arrests for the girl's murder, acted on an anonymous phone tip (or so they said) and scooped up Cruz and Hernandez. Not long after their first conviction, a repeat sex offender and murderer, Brian Dugan, confessed to six rape-murders, including Nicarico's. The prosecutor paid no attention to Dugan's confession and continued to pursue Cruz and Hernandez when they won new trials on the old charge. This time Hernandez got only eighty years, while Cruz went back to death row. And there they stayed until--ten years, six months and eighteen days after they first entered prison--they were cleared by a DNA test and a cop's confession at Cruz's third trial that he had supplied the original lie that convicted them in the first place.

Because they are so eager to make their reputations in murder trials, prosecutors will launch them even with very weak evidence, which is one reason they lose about 30 percent of capital trials, compared with about 15 percent of other felony trials. And some prosecutors will spend any amount of money and time rather than admit they are wrong. The premier example is the ordeal of Darby Tillis and Perry Cobb. They were tried five times--the most of any defendants in US history--for a Chicago murder. The five trials included three hung juries and a conviction--eventually reversed by the Illinois Supreme Court because of the conduct of the trial judge, who was later convicted of taking bribes. Finally, at their fifth trial, they were acquitted.

Before that, they had spent six years on death row.

Keeping the Public Stupid

Death rows and prison cemeteries are full of men and women who wouldn't be there if their trial juries had been aware of the alternative sentences offered by the state in which the murder was committed. Surveys have found that most people eligible for jury duty would be willing--indeed would prefer--to give first-degree murderers less than the death penalty if the substitute penalty were absolutely guaranteed to keep the killer behind bars a very long time or, if he is particularly dangerous, for the rest of his life.

The trouble is, many jury members have no faith that this will happen. Scare stories have convinced them the "system" is little better than a revolving door and that killers who aren't executed will be back on the street long before their prescribed sentence is up. A few years ago, a small army of academics known as the Capital Jury Project and funded by the National Science Foundation interviewed nearly a thousand jurors who had served in capital trials in eleven states. They found that most had done their jury service without having the foggiest notion of their states' penalty laws, which in fact offered quite a variety of penalty choices. Some of the interviews were done in states where the law specifically requires "lifers" to serve at least twenty-five to forty years before being eligible for parole, and where the worst killers can be sentenced to honest-to-god LWOP--life without parole.

Many prosecutors and tough-on-crime legislators have done their best to keep juries ignorant, for if they don't know the alternative sentences, they will more likely vote for death, just to be safe. Attorney J. Mark Lane, in a study of 280 Georgia death cases, found that during one-fourth of the sentencing deliberations, juries asked the judges what chances of early parole went with certain sentences. When they got no answer, most quickly voted for death. Here's Lane's description of one episode:

The jury first sent the judge two questions: "Can we give the sentence of life without chance of parole? If no, when will the defendant be eligible for parole?" The judge replied that he was "not permitted to answer either of these two questions." The jury, after deliberating further, reported that it had reached a unanimous verdict: "We recommend mercy or that defendant's punishment be life imprisonment with the stipulation that it be life imprisonment without parole."

The judge said he couldn't accept that sentence because it wasn't in Georgia's law. He ordered them to go back and try again. Exhausted from floundering around without guidance, the jury imposed the death penalty.

Of course, many murders are so awful that juries aren't satisfied with any term that would include a chance for parole. For these juries LWOP would be the only tempting alternative, and thirty-three of the thirty-eight capital-punishment states now offer it. Of the five holdouts, Texas is by far the most stubborn, and its opponents are not shy about their reasons. In Harris County (Houston), District Attorney John Holmes Jr. said, "When you start passing throw-away-the-key bills, you're effectively eliminating the death penalty." And that wouldn't be popular at all in his county. It is by far the most bountiful supplier of candidates for execution in Texas.

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