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This article urges adopting the Model Penal Code's exclusion of the death penalty when the evidence does not foreclose all doubt respecting the defendant's guilt. Adopting a modified version of the Code's section 210.6(1)(f) would both save innocent lives and lessen burdens on our justice system. While the trial jury may convict on proof beyond a reasonable doubt of capital murder, the case would not proceed to a penalty phase unless jurors found the elements proven by a stronger standard. Illinois is now reevaluating its system of capital punishment, desperately seeking means of averting the execution of innocents. That real threat brought Governor George Ryan to announce a moratorium on January 31, 2000, two weeks after the thirteenth innocent person was freed from Illinois death row. The risk of wrongful execution has drawn national concern. Legislative proposals in Congress and elsewhere enlist science and technology in hopes of averting the nightmare of a wrongful execution.' This article looks to juries and judges to help avert that nightmare. It looks to human understanding, human limitations and human responses to avert tragedy. This article considers community views on the risk of mistaken executions and how sentencing juries respond to such risks. It explores the present state of the law surrounding risk-taking, and finds the law in a state of denial. Though the risk may be there, and jurors may see it, this is not something they are directed, or even invited, to consider. Some jurors may deny effect to the risk they see, believing it is not a proper subject of their attention. Others will consider it, yet wonder whether they should. This inconsistent treatment, and dissonance from what the public wants and justifiably expects from its legal system, is largely a product of the United States Supreme Court's 1988 decision in Franklin v. Lynaugh. Arguably misread, and at least misguided, the Court's decision on considering lingering or residual doubts about guilt as a mitigating factor at the penalty phase has retarded development of meaningful ways to avert mistaken executions.

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Northern Illinois University Law Review

Suggested Citation

Margery Malkin Koosed, Averting Mistaken Executions by Adopting the Model Penal Code's Exclusion of Death in the Presence of Lingering Doubt, 21 N. Ill. U. L. Rev. 41 (2001).

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