Ryan clemencies upheld
State Supreme Court settles dispute over Death Row commutations
By Steve Mills, Tribune staff reporter. Tribune staff reporter Karen Mellen contributed to this report
January 24, 2004

A unanimous Illinois Supreme Court on Friday upheld the mass commutations granted by former Gov. George Ryan, settling the last questions about the controversial clemencies for Death Row inmates.

Ruling in a lawsuit brought by Illinois Atty. Gen. Lisa Madigan and prosecutors from across the state, the court said Ryan had an "essentially unreviewable power" to grant clemency to inmates--even to prisoners who had not signed commutation petitions.
The state's highest court said the former governor also could grant clemency to prisoners whose death sentences had been reversed by an appeals court and were awaiting new sentencing hearings.

The state constitution, the court said in its 10-page opinion written by Justice Bob Thomas, "allows the legislature to regulate the application process but does not in any way restrict the governor's power to act."

Altogether, 32 inmates faced a return to the state's nearly empty Death Row had the court sided with Madigan.

Ryan's decision last January to pardon four Death Row inmates and commute the sentences of 167 others followed years of deliberations over the issue that began in January 2000, when Ryan declared a moratorium on executions.

Former Atty. Gen. Jim Ryan filed a handful of lawsuits that failed to block the commutations before they were announced. Madigan went to the Supreme Court after the commutations.

The lawsuits raised issues about the separation of powers, what "conviction" and "sentenced" mean, and the powers of a sitting governor.

George Ryan said in an interview Friday that he was not surprised by the ruling.
"I was more than confident that, when I did what I did, I had the constitutional authority to do it," Ryan said.

The former governor is now under federal indictment for a wide range of corruption allegedly committed while he was secretary of state and later governor.

Madigan said in a statement that she filed the lawsuit because the commutations raised "significant constitutional questions" and she sought to "provide an orderly and expeditious resolution."

She said she was pleased the court had answered those questions.

The court ruled the governor has broad powers to grant clemency, including to inmates who did not seek it. Petitions were filed for them by attorneys at the University of Chicago's MacArthur Justice Center and Northwestern University's Center on Wrongful Convictions.

Ryan also had authority to grant clemency to the inmates who had not been resentenced, the court said, because the constitution lets the governor mitigate a sentence or remove potential consequences of a crime.

The court said the second issue was more difficult, "with little to guide us" in the law. In the end, it ruled a governor's power is "sufficiently broad" that he can cut the maximum sentence a convicted defendant faces.

Lawrence Marshall, of the Center on Wrongful Convictions, said it was significant that the court spoke in a "strong and unanimous way" and that the opinion was written by Thomas, considered perhaps the court's most conservative voice.

That, Marshall said, made the ruling a "resounding statement."

Prosecutors had fought the clemency effort during weeks of emotional hearings before the Prisoner Review Board.

"We are disappointed by this decision but accept the Supreme Court's ruling," said John Gorman, a spokesman for Cook County State's Atty. Richard Devine. "Our thoughts today are with the victims' families who have endured so much pain through the years."

Kevin Lyons, the state's attorney in Peoria County and one of the leading critics of the blanket clemency, said the court's review of the case was "thoughtful and careful." He lashed out at Ryan, though, saying, "This gutless action, sometimes whooped up as courageous, is nothing like the courage shown by the victims left behind by these Death Row murderers."

State Sen. Ed Petka (R-Plainfield) said he would draft a constitutional amendment to curtail a governor's power to grant pardons and commutations, saying that right now there is "accountability to no one."

DuPage County State's Atty. Joseph Birkett, whose own lawsuit challenging the blanket clemency appears dead, said it would be a mistake to tamper with the constitution. Like Madigan, he said it was time to move ahead.

"This is another tough day for those of us who hoped for another outcome," he said. "This is the highest court in the land. This is the last court. ... We have to live with this decision. Let's move on."

If the court had broader concerns about the blanket clemency outside of the legal issues, it saved them for the opinion's final paragraph.

There, Thomas writes that clemency is a "historic remedy" meant to prevent miscarriages after appeals to the courts have been exhausted.

"Our hope," the court concludes, "is that governors will use the clemency power in its intended manner--to prevent miscarriages of justice in individual cases."

Locke Bowman, of the MacArthur Justice Center, said the sentence can be read two ways.

"You can read it as saying that this is an unusual circumstance hopefully never to be repeated inasmuch as it was driven by the fact that the death penalty system was broken," he said. "Or you can read it as expressing disapproval of what the governor did. But I really don't think that's in there."

Birkett said he believed it backed what prosecutors had argued. "They say it was intended to prevent miscarriages in individual cases," he said. "And that's what we said from the beginning."

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