Saturday, March 22, 2008

Illinois: Judiciary Demands Action from Governor

The pardon power has received a little more attention than usual in the state of Illinois given the fact that Gov. Rod Blagojevich (D) has yet to act on the case of Alton Logan and is being scrutinzed for the pardon of Chandra Gill. Now federal Judge Joan Gotschall has informed Blagojevich that he cannot sit indefinitely on pardon applications. The decision - which can be downloaded as a .pdf file here - was issued in response to a case brought by ten felons who are seeking executive clemency. Seven of them have already had applications denied. Judge Gotschall interprets the Illinois constitution to require the governor to make decisions on pardon applications "within a reasonable period of time." Margaret Love, the Justice Department's chief pardon attorney from 1990-1997, says she hopes Blagoojevich will take the court's ruling as an "opportunity" given the fact that it is "an important part of his job."

Here are some edited highlights of the decision. Emphases (in red) are my own:

The Illinois Constitution of 1970 invests the Governor with the power to “grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper.” [Moreover], “the manner of applying [for clemency] may be regulated by law.”

... The process of applying for executive clemency under the Illinois Constitution is controlled by 730 ILCS § 5/3-3-13 (“§ 5/3-3-13”) and Section 1610.180 of the Illinois Administrative Code (“§ 1610.180”).

... However, none of the administrative procedures enacted by the legislature “shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon.” 730 ILCS § 5/3-3-13(e) (2007). Thus, whether a governor decides to pardon or deny clemency is entirely discretionary, regardless of the recommendation of the PRB.

The plaintiffs assert that they do not seek a necessarily favorable clemency decision, but seek rather to compel the Governor to make timely decisions on their outstanding clemency petitions. Specifically, plaintiffs cite § 5/3-3-13(d) which states: “The Governor shall decide each application and communicate his decision to the Board which shall notify the petitioner.” 730 ILCS § 5/3-3-13(d) (emphasis added). The plaintiffs argue that the mandatory language of the statute (characterized by the use of the imperative verb “shall”) creates a liberty interest in a clemency decision being made (either positive or negative) within a reasonable period of time subsequent to the PRB’s recommendation.

... In this case, the Illinois legislature has placed no restrictions on the Governor’s
discretion whether to grant or deny an individual’s application for clemency. But it has placed, in § 5/3-3-13, an unambiguous restriction on the Governor’s putative discretion whether to make any decision at all. The mandatory language of § 5/3-3-13 does not leave the Governor with “vague standards that leave the decisionmaker with unfettered discretion ...

... On the contrary, the statutory language is unequivocal: the Governor “shall decide each application and communicate his decision to the Board which shall notify the petitioner.” 730 ILCS § 5/3-3-13(d). The court finds, therefore, that the Illinois legislature has thus created a procedural due process liberty interest in the procedures governing when and how a clemency position is made once the PRB has submitted its report to the Governor.

... the statutory language of § 5/3-3-13 does not create guidelines by which the Governor’s ultimate discretionary clemency decision itself is regulated. The discretionary power to grant or deny a clemency petition remains untouched by the statutory language. Nevertheless, the statute explicitly and unequivocally requires that some decision shall be made, and it is therein that the state has created a liberty interest protected by the Due Process clause.

Moreover, although § 5/3-3-13 does not specify a time period in which the Governor must make a decision on clemency petitions following submission of the PRB’s recommendation, the necessary implication of the statute’s imperative language is that the decision be made within a reasonable period of time.

... Otherwise, the Governor could delay making decisions indefinitely. Such indefinite delays were evidently not contemplated by the drafters of the statute, who also created a protectable liberty interest of petitioners to reapply for clemency, after a year’s passage, following a denial of their petition. 730 ILCS § 5/3-3-13(a-5). To permit the Governor to delay clemency decisions indefinitely effectively also infringes this protected right and effectively thwarts the legislature’s constitutional right to regulate the process by which pardons are regulated by law. Ill. Const. Art V, § 12 Section 5/3-3-13 creates specific guidelines and criteria that direct the manner in which the Governor exercises his discretion to grant clemency petitions.

The Governor’s power to grant clemency under the Illinois Constitution remains entirely discretionary and explicitly unfettered by the statute. However, the unequivocal and mandatory language of § 5/3-3-13 requires that the Governor make some decision within a reasonable period of time. Under § 5/3-3-13 the Illinois legislature has created a statutory, specific procedure (and thus a colorable right) to petition for clemency; by necessary implication, therefore, there exists a similar right to a decision on that petition.

... The Governor’s argument that the plaintiffs seek to impede the Governor’s constitutional discretion to grant or deny clemency is without merit.

Additional information on this story here.

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