Illinois Coalition to Abolish the Death Penalty

Ryan's clemencies challenged
32 cases were ineligible, Supreme Court told

By Christi Parsons
Tribune staff reporter
September 17, 2003

SPRINGFIELD -- Months after former Gov. George Ryan cleared Illinois Death Row with a blanket commutation, lawyers for Atty. Gen. Lisa Madigan on Tuesday urged the state's high court to restore the death sentences for some of the inmates she contends weren't eligible for executive clemency.

At its heart, the case tests the breadth of the clemency provision of the state constitution, which gives the chief executive the power to grant reprieves, commutations and pardons "after conviction for all offenses on such terms as he thinks proper."

Madigan is asking the court to rule that Ryan overstepped the bounds of his authority in handing down some of the commutations and to declare them void.

But during arguments on her petition, justices on both sides of the ideological divide asked sharp questions suggesting they may have concerns about doing that.

Chief Justice Mary Ann McMorrow, a Democrat, said the constitution endows the governor with sweeping authority to grant pardons.

"Aren't you elevating the process over the constitutional broad clemency powers given to the governor?" she asked an attorney for Madigan.

Justice Robert Thomas, a Republican, also asked questions about the constitution's clear language regarding the pardon power.

The matter comes before the court eight months after Ryan commuted every death sentence to life in prison without parole. In all, 164 people were removed from Death Row, and three sentences were shortened to 40 years in prison.

Madigan is not challenging the bulk of the clemencies, but she is seeking to overturn 32 of them. The reasons vary, but she argues that some of those inmates were not eligible for clemency because they had not sought it, while others technically weren't facing death sentences when Ryan acted on their behalf. At the time, that second group of inmates had had their death sentences vacated, and lower courts were in the process of considering whether to impose lesser sentences or reimpose capital sentences.

Madigan also says the mass commutation failed to impose a specific reduced sentence for each of the unsentenced inmates, an overly general action she contends violates past requirements of the Supreme Court that a commutation set a clear-cut reduced sentence. Ryan commuted those inmates' sentences to no more than life in prison, so as not to obligate a prisoner to that long a term if the courts gave him something less.
As for those awaiting new sentencing, the commutations just didn't make sense, Madigan's office contends.

"How can you replace something that doesn't exist?" asked Barry Gross, Madigan's chief deputy attorney general. The governor may have broad powers, said Gross, but they aren't absolute.

Attorneys representing Ryan's successor, Rod Blagojevich--as well as friends of the court, including former Gov. James R. Thompson--say the essence of the chief executive's clemency power is at stake in the current suit.

A governor's use of the power of executive clemency can't be overturned by the judicial branch, they argue, because the state constitution says he can grant clemency after conviction for any reason he likes.

They contend the same sweeping constitutional language means it doesn't matter whether the petitions were signed or whether the inmates had been sentenced.
Attorneys defending the commutations say the constitution says the governor's pardon power kicks in "after conviction," not after sentence.

"There doesn't have to be a sentence there," said David Strauss, the attorney for the executive branch. "He just has to act to lighten the punishment."

In an interesting side drama, the case pits lawyers from Madigan's office against private attorneys appointed as special assistant attorneys general to represent the executive branch, for which she is the official legal officer. Those appointed lawyers are serving at the request of Blagojevich, who has publicly stated his disapproval of Ryan's actions, but says the issues in the case "threaten the historic power of the governor of Illinois" to grant clemency.