State's attack on un-sentenced makes no sense

By Eric Zorn

February 6, 2003

The ugliest and most desperate element of the legal attack on former Gov. George Ryan's blanket commutation of all death sentences in Illinois is the bid to pursue the execution of the so-called un-sentenced prisoners.

These are the 16 formerly condemned men who had won new sentencing hearings before Ryan issued the blanket commutation Jan. 11 that emptied Death Row. Appellate judges had ruled that a variety of defects--including incompetent defense attorneys, overzealous prosecutors and misinformed jurors--rendered the sentencing phases of their trials unconstitutional.

A consortium of county prosecutors led by Cook County State's Atty. Richard Devine has since based court challenges on a puzzling question: How could Ryan possibly have commuted sentences that had been overturned and so didn't exist?

It's more a Zen koan than a solid legal argument. And it suggests a remedy so absurd as to be offensive--using the state's own errors and playing "gotcha!" with the vagaries of timing in an effort to thwart Ryan's plain intentions and send a select group of inmates back to be executed.

"If they'd lost their appeals, they'd still have been sentenced to death and no one would be contesting their commutation," said Assistant State Appellate Defender Charles Hoffman. He represents convicted killer Julius Kuntu, whose sentence was vacated in 2001 when the Illinois Supreme Court ruled that prosecutors had used language in the penalty phase of his trial that was "inflammatory."

If Kuntu and others in sentencing limbo are sent back to Death Row, "winning would have been losing, and losing would have been winning," said Hoffman of the appeals process. "It's justice right out of `Alice in Wonderland.'"

And following the prosecutors right down the rabbit hole this week was newly elected Illinois Atty. Gen. Lisa Madigan. She asked the state's high court Tuesday to invalidate the commutations Ryan granted to the un-sentenced and to those who didn't sign petitions filed to the Illinois Prisoner Review Board on their behalf.

There are "legitimate legal questions that need to be resolved" about the issue of the un-sentenced, Madigan said when we spoke Tuesday afternoon. For example, she said: "The constitution allows the governor to grant clemency `after conviction.' But does `conviction' mean an adjudication of guilt alone, or does it require the imposition of a sentence?"

The answer to this is "don't be silly."

The distinction is obvious and all over the law books. And though Madigan took a measured and reform-friendly tone in her news release and our conversation, it was disappointing that she said "me too" instead of "move on" to those who've been advancing such frantic sophistry in the effort to salvage a few executions.


The effort to re-condemn the un-sentenced is ugly because if it happens to succeed it will create a new high-water mark for arbitrariness, even perversity, in the administration of capital justice. Those with the misfortune of having had solid grounds to appeal their sentences will face a return to Death Row while those whose appeals were held to be without merit will not. Curiouser and curiouser indeed.
The effort is desperate because, whether anyone likes it or not, Illinois governors have very broad powers to commute and pardon, and the courts have long been loath to micromanage it. And one reason why the power is so broad is exactly because cynical exploitations of technicalities can turn common sense on its head. Gov. Rod Blagojevich issued a three-paragraph statement Wednesday opposing Madigan's position. "The unfettered ability to grant clemency is--and has always been--a critical element of our system of checks and balances," he said.

Blagojevich called Ryan's blanket commutation "arbitrary," "irresponsible" and "reckless" but concluded that "our chief executives must be free to right wrongs, to heal public wounds, to save innocent people. If today we limit the ability of some future governor to correct injustice in an appropriate case, we will not be correcting the wrong George Ryan did, we will be compounding it."

Here's an idea: Blagojevich could put muscle on that rhetoric by promising today to commute with no questions asked any death sentence that might be reimposed based on this effort.
Yes, it would smack a bit of the "sentence first, verdict afterwards" approach to justice favored by the Queen of Hearts. But this trip to Wonderland wasn't his idea.

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