Thursday, August 21, 2008

Illinois: Distribute the Clemency Power?

Gov. Rod Blagojevich might be second only to George W. Bush when it comes to allowing huge piles of clemency petitions to build up. Blagojevich has allowed the stack in his State to exceed 3,000 and a federal judge has even condemned his non-action as a violation of due process. So, others, more balanced in their approach to criminal justice, are seeking ways to mitigate the Governor's neglect.

WBBM 780 reports that an Illinois House committee is considering a bill that would provide early release for inmates 50 years of age or older, who have served at least 25 consecutive years in prison, to petition the courts instead of the governor for early release. The release procedure would not apply to those who are sentenced to death. See synopsis of HB4154 here. State Rep. Eddie Washington (D-Waukegan), is the chief sponsor of the bill and is chairing hearings. WBBM notes:

Cook County State’s Attorney Dick Devine said he considers the bill unconstitutional on its face, because it would take the clemency powers granted exclusively to the governor under the Illinois Constitution and give them to judges. Speaking as president of the Illinois State’s Attorney’s Association, which represents prosecutors throughout the state of Illinois, DuPage County State’s Attorney Joe Birkett said it would free prisoners “without a hearing, without any input from the state, without any representation by the state’s attorney or the attorney general, without a process or procedure, simply a petition and certain findings made by the court.” Birkett said the measure, if enacted “would turn the notion of truth in sentencing on its head” because it would allow judges to cut short sentences of any length.
The notion that the bill would "take" clemency power from the executive is, of course, ludicrous. It would do no such thing. First, notice the legislation does not appear to involve pardoning anyone. It simply involves a sentencing adjusment. Does anyone seriously doubt that it is proper to consider sentencing within the realm of the legislature and the judiciarcy?

Second, it is worthy of note that Article V, Section 12 of the Illinois State Constitution reads:

The Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by law.

Notice the Governor's power is not without limits. And notice that there is nothing in the language which even suggests that clemency powers are exclusively his own.

Third, it is worthy of note that - by the logic of Devine - the Constitution of the United States can be said to give the pardon power "solely" to the president. And federal courts have long been protective of the executive's use of that power. However, the federal system has long recognized that clemency powers are distributed to the other branches as well - a practice generally attributed to ancient Rome. Congress may not be able to regulate or restrict the president's pardon power in any significant way, but it can grant amnesty on its own, if it so desires. So, despite the Constitution's grant of the pardon power solely to the president, Congress has granted several post-war amnesties. It may still grant an amnesty to illegal aliens.

In Illinois, judges can suspend sentences. They can reconsider sentences. They can overturn the decision making of juries. They can seal and expunge records. Of course, they are also frequently consulted in decisions regarding parole, probation and pardon. That is to say, they already play a role in the exercise of clemency in ways not specified in the Illinois State Constitution. This legislation would take nothing at all from the executive branch. See story here.

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