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     Attorney General of Illinois, et al.,
     - v. -
     Director of Corrections, et al., 

Docket No. 95663
Agenda 19
September 19, 2003
Opinion filed January 23, 2004

Docket No. 95663 - People ex Rel. Madigan v. Snyder (Il. S. Ct.)

JUSTICE THOMAS delivered the opinion of the court:

This case comes before the court as an original action for a writ ofmandamus. 188 Ill. 2d R. 381. The Illinois Attorney General filed thecomplaint on behalf of the people of the state of Illinois. The complaintseeks a writ of mandamus ordering the Director of Corrections and thewardens of Pontiac and Menard Correctional Centers to prevent therecording of certain commutation orders entered by former GovernorGeorge H. Ryan or, in the alternative, to expunge the commutation orderswhere they have already been entered.


Petitioners' complaint contains the following allegations. On January10, 2003, then-Governor George H. Ryan announced that he wasgranting "blanket clemency" for all inmates who were then, or who hadbeen, sentenced to death. He issued orders commuting the sentences ofmore than 160 inmates to life imprisonment, a maximum of lifeimprisonment, or 40 years. Petitioners challenge the validity of thecommutations with respect to two distinct groups of inmates.

In count I of the complaint, petitioners allege that the Governorlacked the authority to commute the sentences of inmates who failed tosign or otherwise consent to their clemency petitions. Article V, section12, of the Illinois Constitution of 1970 provides that:

"The Governor may grant reprieves, commutations andpardons, after conviction, for all offenses on such terms as hethinks proper. The manner of applying therefore [sic] may beregulated by law."

Pursuant to this section, the General Assembly has exercised its authorityto regulate the process of application for clemency in section 3-3-13 ofthe Unified Code of Corrections (730 ILCS 5/3-3-13 (West 2002)).That section provides that petitions seeking clemency "shall be in writingand signed by the person under conviction or by a person on his behalf."730 ILCS 5/3-3-13(a) (West 2002). A clemency application cannot becommenced on behalf of a person who has been sentenced to death,unless that person has consented. 730 ILCS 5/3-3-13(c) (West 2002).The complaint listed in an appendix a group of inmates who had notauthorized the filing of clemency petitions on their behalf. The statutemakes an exception for inmates who are mentally or physically incapableof deciding whether to seek clemency (730 ILCS 5/3-3-13(c) (West2002)), but none of the inmates listed in the appendix had claimed such aninfirmity.

Count I alleged that the legislature had regulated the procedure forapplying for executive clemency and that the section imposed a clear legalduty on the Governor not to grant a commutation to any inmate who failsto sign or consent to a commutation petition and who is not otherwiseexcused from doing so. Accordingly, petitioners allege that the ordersgranting commutations to these inmates are void.

The next three counts of the complaint deal with inmates who wereallegedly not under sentence when then-Governor Ryan issued thecommutations. In count II, petitioners argue that the Governor lacked theauthority to issue commutations to inmates not under sentence. Theseinmates had been under a sentence of death at one time, but theirsentences had been reversed in either direct appeals or in postconvictionproceedings and they were awaiting new sentencing hearings. Thecomplaint alleged that then-Governor Ryan had exceeded his authority inissuing a preemptive grant of commutation and had encroached on thejudiciary's sentencing powers. Accordingly, petitioner argued that thesecommutations were void.

In count III, petitioners argue that the Governor cannot commutesentences to unspecified terms. For most of the inmates referenced incount II of the complaint, the Governor used one of the following twoforms of commutation orders:

"Sentence Commuted to Natural Life Imprisonment Withoutthe Possibility of Parole or Mandatory Supervised Relief [sic];or in the alternative, Sentence Commuted to a Sentence OtherThan Death for the Crime of Murder, So that the MaximumSentence that may be Imposed is Natural Life ImprisonmentWithout the Possibility of Parole or Mandatory Supervised Relief[sic]."

"Sentence Commuted to a Sentence Other Than Death forthe Crime of Murder, So that the Maximum Sentence that maybe Imposed is Natural Life Imprisonment Without the Possibilityof Parole or Mandatory Supervised Relief [sic]."

Petitioners argue that these are void orders because the Governor cannotcommute sentences to unspecified terms.

Count IV alleges that the Governor may not delegate hiscommutation power. According to the complaint, then-Governor Ryanimproperly delegated his commutation powers to the judiciary bycommuting sentences of the inmates listed in count II to unspecified terms.


Mandamus is an extraordinary remedy traditionally used to compela public official to perform a ministerial duty. People ex rel. Ryan v. Roe,201 Ill. 2d 552, 555 (2002). Generally, a writ of mandamus will beawarded only if a plaintiff establishes a clear right to relief, a clear duty ofthe public official to act, and a clear authority in the public official tocomply with the writ. People ex rel. Waller v. McKoski, 195 Ill. 2d 393,398 (2001). There must also be no other adequate remedy. Patzner v.Baise, 133 Ill. 2d 540, 545 (1990). However, even when all of the normalrequirements for the writ's award are not met initially, we may stillconsider a petition for a writ of mandamus if it presents a novel issue thatis of crucial importance to the administration of justice. People v. Latona,184 Ill. 2d 260, 277 (1998). If, in purporting to exercise his pardon orcommutation power, the Governor issues a void order, mandamus maybe used to require the officers charged with execution of the order todisregard it. People ex rel. Smith v. Jenkins, 325 Ill. 372, 374-75(1927); People ex rel. Fullenwider v. Jenkins, 322 Ill. 33 (1926).

I. Inmates Who Did Not Sign or Otherwise Consent to Their Petitions

We first consider petitioners' argument that former Governor Ryanlacked the authority to commute the sentences of inmates who did not signor otherwise consent to the filing of petitions on their behalf. For each ofthe inmates listed in the appendix to count I, a petition for executiveclemency was filed with former Governor Ryan. However, these inmateshad not signed consent forms allowing these petitions to be filed on theirbehalf.

Petitioners' argument is straightforward. The Illinois Constitutiongives the Governor the authority to "grant reprieves, commutations andpardons, after conviction, for all offenses on such terms as he thinksproper." Ill. Const. 1970, art. 5, 12. However, the constitution furtherprovides that, "[t]he manner of applying therefore [sic] may be regulatedby law." Ill. Const. 1970, art. V, 12. Pursuant to this section, the GeneralAssembly has exercised its authority to regulate the process of applicationfor clemency in section 3-3-13 of the Unified Code of Corrections (730ILCS 5/3-3-13 (West 2002)). That section provides that petitionsseeking clemency "shall be in writing and signed by the person underconviction or by a person on his behalf." 730 ILCS 5/3-3-13(a) (West2002). Further, section 3-3-13(c) provides, in part, that:

"Application for executive clemency under this Section maynot be commenced on behalf of a person who has beensentenced to death without the written consent of the defendant,unless the defendant, because of a mental or physical condition,is incapable of asserting his or her own claim." 730 ILCS5/3-3-13(c) (West 2002).

According to petitioners, this statute limits the Governor's authority togrant reprieves, pardons, or commutations to those inmates who followthe proper application procedures. We disagree.

By its plain language, article V, section 12, of the constitution merelyallows the legislature to regulate the process for applying for executiveclemency. It does not purport to give the legislature the power to regulatethe Governor's authority to grant clemency. Further, the 1970 IllinoisConstitution does not provide that the Governor's power to grantclemency is subject to the legislature's regulation of the applicationprocess, as did the 1870 constitution. Article V, section 13, of theConstitution of 1870 provided that:

"The Governor shall have power to grant reprieves,commutations and pardons, after conviction, for all offenses,subject to such regulations as may be provided by law relativeto the manner of applying therefor." (Emphasis added.) Ill.Const. 1870, art. V, 13.

The notable changes between the two constitutions were the addition ofthe phrase "on such terms as he thinks proper" and the deletion of the"subject to" language. Although petitioners might have had at least aplausible argument under the 1870 constitution (see People ex rel. Smith,325 Ill. at 375 ("The only restriction imposed by the constitution on thepower of the Governor to grant reprieves, commutations and pardons isthat it shall be 'subject to such regulations as may be provided by law ofapplying therefor' ")), their contention must fail under the currentconstitution, which allows the legislature to regulate the application processbut does not in any way restrict the Governor's power to act. Ifpetitioners' position were correct, it would mean that the legislature couldnullify the Governor's clemency power through legislation, simply byenacting regulations sufficiently strict to prevent any clemency petition fromever reaching the Governor. We do not believe that was the intent of theframers of the constitution.

Further, even if we assume, arguendo, that the legislature couldrestrict the Governor's commutation powers through its power to regulatethe application process, the legislature did not do so. Indeed, thelegislature went out of its way to ensure that no one would read itsregulation of the application process as limiting the Governor's power toact. After setting forth the procedures for the filing and consideration ofclemency petitions, the statute expressly provides that:

"Nothing in this Section shall be construed to limit the powerof the Governor under the constitution to grant a reprieve,commutation of sentence, or pardon." 730 ILCS 5/3-3-13(e)(West 2002).

Petitioners contend that the relevant phrase in this section is "under theconstitution." The constitution allows the legislature to regulate theapplication process so, according to petitioners, subsection (e) means thatnothing in this section limits the Governor's power to act if this section isfollowed. Petitioners argue that the statute would be rendered meaninglessif the Governor could grant clemency even when proper procedures werenot followed. This analysis is problematic for several reasons.

First, as explained above, the Governor's power under theconstitution is defined by the first sentence of article V, section 12. Thesecond sentence, allowing the legislature to regulate the applicationprocess, is not a limitation on the Governor's power. Next, subsection (e)has no meaning except as an explanation that the statute should not beconstrued as a limitation on the Governor's power. If petitioners'argument were correct, section 3-3-13 would indeed be a limitation onthe Governor's power-a limitation petitioners claim the legislature isentitled to enact-and subsection (e) would then have no purpose. Finally,it is simply untrue that subsection (e) renders the entire section superfluous.If an inmate fails to follow the proper procedures, then the Governor doesnot have to consider the petition. The Prisoner Review Board does nothave to accept it, does not have to schedule a hearing, and does not haveto make a recommendation to the Governor.

Thus, in the typical case, an inmate who does not follow properprocedures will not get his petition before the Governor. The failure of theinmates listed in count I to consent to their petitions would have giventhen-Governor Ryan a basis to refuse to consider the petitions on theirmerits. This, however, was not the typical case. We take judicial notice ofthen-Governor Ryan's public statements in issuing these commutations(See Governor George Ryan, Address at Northwestern University LawSchool (January 11, 2003)), and it is apparent that he intended to grantblanket clemency because he believed that Illinois' death penalty systemwas broken. Thus, in this instance, the failure of certain inmates to consentto their petitions was irrelevant to the Governor. That does not mean,however, that section 3-3-13 does not play an important role in theclemency process. Petitioners have not shown a clear right to relief oncount I of their complaint, and we deny the request for a writ ofmandamus.

II. Unsentenced Inmates

We next address the validity of former Governor Ryan's orderscommuting the sentences of inmates not currently under sentence. Asstated above, the inmates listed in this count of the petition had obtainedsentencing relief as part of appellate or collateral proceedings and wereawaiting new sentencing hearings when former Governor Ryan purportedto commute their death sentences.

Before proceeding with the merits of this discussion, we address amotion that we ordered taken with the case. Respondents William Bracyand Roger Collins moved this court to dismiss them from count II. Bracyand Collins argue that they were not "unsentenced" when then-GovernorRyan commuted their sentences, and thus they should be dismissed fromcount II. Bracy and Collins had obtained relief in federal habeas corpusproceedings. The Seventh Circuit upheld a district court opinion giving theIllinois courts 90 days to hold new sentencing hearings. Bracy v.Schomig, 286 F.3d 406 (7th Cir. 2002). Bracy and Collins argue thattheir death sentences remained intact at this point because federal courtsacting under 28 U.S.C. 2254 do not issue decrees that directly affect thejudgments entered in state courts. Rather, a federal court issuing a writ ofhabeas corpus essentially requires the State to retry or resentence thedefendant, on pain of ordering the defendant's release if the State does notcomply.

We agree with Bracy and Collins that they remained under sentence.A federal court considering a state prisoner's petition for a writ of habeascorpus does not have the authority to revise a state court judgment. Asthe United States Supreme Court explained in Fay v. Noia, 372 U.S.391, 430-31, 9 L. Ed. 2d 837, 864, 83 S. Ct. 822, 844 (1963),overruled in part on other grounds by Wainwright v. Sykes, 433 U.S.72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977):

"Habeas lies to enforce the right of personal liberty; when thatright is denied and a person confined, the federal court has thepower to release him. Indeed, it has no other power; it cannotrevise the state court judgment; it can act only on the body of thepetitioner."

See also, e.g., Wilson v. Lawrence County, 154 F.3d 757, 761 (1998)("[a] federal writ of habeas corpus does not reverse or void the statejudgment of conviction"); Henderson v. Frank, 155 F.3d 159, 168 (3dCir. 1998) (federal court in habeas proceeding has no authority to revisethe state court judgment; court may determine only whether there is animproper detention and, if so, order the release of the prisoner conditionedon the State's opportunity to correct errors); 39A C.J.S. Habeas Corpus372 (2003).

Petitioners respond that the federal court did in fact vacate thesentences, citing to the opinion in United States ex rel. Collins v.Welborn, 79 F. Supp. 2d 898 (N.D. Ill. 1999). Further, petitionerscontend that, once the Supreme Court denied certiorari in the case,Bracy and Collins could not be said to be under a sentence of death. Asset forth above, however, the federal court had no authority to revise thejudgments of the Illinois courts in these cases. Thus, although the districtcourt used the term "vacate," its order could not vacate these sentences.We also deem the denial of certiorari by the Supreme Court to beirrelevant. Because the federal court had no authority to revise thejudgment, that judgment remained intact, even if it could never beenforced. Thus, we agree with Bracy and Collins that their state courtjudgment of conviction and sentence was still intact when then-GovernorRyan issued his clemency orders. The motion to dismiss is granted.

We now turn to the merits of petitioners' argument. Petitioners focuson the phrase "after conviction" in article V, section 12, of the IllinoisConstitution. The constitution gives the Governor the power to grant"reprieves, commutations and pardons, after conviction, for all offenses onsuch terms as he thinks proper." According to petitioners, the term"conviction" sometimes refers to an adjudication of guilt and sometimesrefers to both an adjudication of guilt and the imposition of a sentence,depending on the context in which it is used. People v. Woods, 193 Ill. 2d483, 487 (2000). Petitioners contend that the use in article V, section 12,of the term "conviction" means a finding of guilt plus a sentence. In theirreply brief, however, petitioners concede that with respect to theGovernor's pardoning power, article V, section 12, allows the Governorto act following an adjudication of guilt. Petitioners argue that the singleterm "conviction" in this section means two different things:

"Accordingly, in the context of the Governor's pardon power,the term 'after conviction' means after a guilty verdict, regardlessof whether there is a sentence. By contrast, in the commutationpower, the term 'conviction' must include an existing sentence."

We cannot agree with petitioners that "conviction" means twodifferent things in article V, section 12. Rather, we believe that the framersintended the word to have its commonly understood meaning, which is anadjudication of guilt. See Webster's Third New International Dictionary499 (1993) ("the act of proving, finding, or adjudging a person guilty ofan offense or crime"). Throughout the Illinois Constitution, the term"conviction" is used separately from "sentence" or other terms relating tothe consequences of an adjudication of guilt. See, e.g., Ill. Const. 1970,art. I, 8.1(a)(5) (crime victims shall have the right to "information aboutthe conviction, sentence, imprisonment, and release of the accused"); 9("[a]ll persons shall be bailable *** except for *** offenses for which asentence of life imprisonment may be imposed as a consequence ofconviction"); 11 (refers to "Limitation of Penalties after Conviction" andprovides that "no conviction shall work corruption of blood or forfeitureof estate").

In certain instances, we have construed the term "conviction" to bea legal term of art meaning a finding of guilt and a sentence. For instance,in Woods, 193 Ill. 2d at 488-89, we held that the term "date ofconviction" in section 122-1(c) of the Post-Conviction Hearing Act (725ILCS 5/122-1(c) (West 2002) (setting forth time limits in which a post-conviction petition must be filed)) means the date that the final judgment,including the sentence, was entered. We reached this conclusion byconsidering both (1) how the terms "conviction" and "judgment" weredefined in the Code of Criminal Procedure, and (2) the purposesunderlying the Post-Conviction Hearing Act (to provide a remedy forconstitutional violations that occur at trial or sentencing).

By contrast, nothing in the language of the constitution leads us tobelieve that the framers meant to use a legal term of art rather than thecommonly understood meaning of the term: an adjudication of guilt. Weread article V, section 12, as meaning simply that the Governor may firstexercise his clemency powers after a defendant is found guilty of anoffense. This court stated as much in People ex rel. Smith v. Allen, 155Ill. 61 (1895), albeit in dicta. In that case, the defendant pleaded guilty toconspiracy, but the trial court stayed judgment on the plea, allowed thedefendant to leave, and never imposed sentence. This court held that anindefinite suspension of sentence in this manner was essentially a quasipardon and only the governor had the authority to issue pardons:

"Our constitution confers the pardoning power upon theexecutive branch of the State government, and the Governoralone can prevent the infliction of punishment after a legalconviction." (Emphasis added.) Allen, 155 Ill. at 64.

The majority of state courts have reached the same conclusion ininterpreting the phrase "after conviction" in the clemency provisions oftheir state constitutions. See, e.g., State v. Mondragon, 107 N.M. 421,424, 759 P.2d 1003, 1006 (App. 1988); Whan v. State, 485 S.W.2d275, 276-77 (Tex. Crim. App. 1972); In re Anderson, 34 Cal. App. 2d48, 51-54, 92 P.2d 1020, 1022-23 (1939); People v. Marsh, 125 Mich.410, 412-15, 84 N.W. 472, 473-74 (1900); Parker v. State, 103 Tenn.547, 550, 53 S.W. 1092, 1093 (1899); State ex rel. Butler v. Moise,48 La. Ann. 109, 122-23, 18 So. 943, 949 (1895); State v. Alexander,76 N.C. 231 (1877); Blair v. Virginia, 66 Va. 850 (1874);Commonwealth v. Lockwood, 109 Mass. 323, 324-40 (1872); but seeEx Parte White, 28 Okla. Crim. 180, 187-88, 230 P. 522, 524 (1924);Ex Parte Campion, 79 Neb. 364, 372, 112 N.W. 585, 588 (1907).

Nevertheless, holding that the Governor may first exercise hisclemency powers after a defendant is adjudicated guilty does not end ourinquiry. We believe that the relevant inquiry is not so much what thephrase "after conviction" means as whether it is within the Governor'sclemency powers to do what former Governor Ryan did here. In otherwords, does lowering the maximum possible sentence that a defendant canreceive fall within the power given the Governor to "grant reprieves,commutations and pardons *** for all offenses on such terms as he thinksproper"? We believe that it does.

The pardon power given the Governor in article V, section 12, isextremely broad. The Governor may grant reprieves, pardons, andcommutations "on such terms as he thinks proper." Even before the "onsuch terms as he thinks proper" language was added to the constitution,this court had recognized that the Governor's clemency powers grantedby the constitution "cannot be controlled by either the courts or thelegislature. His acts in the exercise of the power can be controlled only byhis conscience and his sense of public duty." People ex rel. Smith, 325Ill. at 374.

A pardon is "[a]n executive action that mitigates or sets asidepunishment for a crime." Black's Law Dictionary 1113 (6th ed. 1990).Further, there are several different types of pardons:

"[A] pardon may be full or partial, absolute or conditional. Apardon is full when it freely and unconditionally absolves theperson from all the legal consequences of a crime and of theperson's conviction, direct and collateral, including thepunishment, whether of imprisonment, pecuniary penalty, orwhatever else the law has provided; it is partial where it remitsonly a portion of the punishment or absolves from only a portionof the legal consequences of the crime. A pardon is absolutewhere it frees the criminal without any condition whatsoever; andit is conditional where it does not become operative until thegrantee has performed some specified act, or where it becomesvoid when some specified event transpires." 67A C.J.S. Pardon& Parole 2, at 6 (2002).

A commutation is the change of punishment to which a person has beencondemned to a less severe one. People ex rel. Smith, 325 Ill. at 376. Itremoves a judicially imposed sentence and replaces it with a lesser,executively imposed sentence. People v. Rissley, 206 Ill. 2d 403, 463(2003). Finally, a reprieve is "the postponement of the execution of asentence." 67A C.J.S. Pardon & Parole 3 (2002). The power to grantreprieves and commutations is generally viewed as a subset of theGovernor's pardoning power. See, e.g., State ex rel. Forbes v.Caperton, 198 W. Va. 474, 478, 481 S.E.2d 780, 784 (1996)("Although a commutation is not synonymous with a pardon, it is wellestablished throughout the United States today that the power to pardongenerally encompasses the lesser power to commute"); Ricks v. State,882 S.W.2d 387, 391 (Tenn. Crim. App. 1994) ("[t]he power tocommute a sentence is a part of the pardoning power and may beexercised under a general grant of that power"); Whittington v. Stevens,221 Miss. 598, 604, 73 So. 2d 137, 140 (1954) ("it is generally held thatthe general power to pardon necessarily contains in it the lesser power ofremission and commutation"); State v. Hildebrand, 25 N.J. Super. 82,84, 95 A.2d 488, 489 (1953) ("This constitutional grant of the pardoningpower carried with it the lesser powers of granting remission of part of thepenalty, of granting commutation of sentence, and of granting a limited orpartial pardon, although none of these lesser powers is specificallymentioned").

The only restriction this court has heretofore found on the Governor'sclemency power is that he may not change a conviction for one crime intoa conviction for another. Thus, in People ex rel. Fullenwider, 322 Ill. at36-40, this court held invalid a commutation order that purported tocommute a life sentence to "manslaughter." The defendant had beenconvicted of murder, and the Governor's clemency power did not allowhim to change the nature of defendant's conviction.

There is a dearth of authority on the issue of whether a Governor canissue a "commutation" when a defendant is not currently under sentence,but the two states to address the issue have held this to be a valid exerciseof the Governor's clemency power. See Collins v. State, 550 S.W.2d643, 650 (Tenn. 1977); Whan v. State, 485 S.W.2d 275, 277 (Tex.Crim. App. 1972). However, these cases contain little analysis and drewforceful dissents, arguing that a commutation can only be issued if asentence is in place. See Collins, 550 S.W.2d at 654-57 (Brock, J.,dissenting, joined by Cooper, C.J.); Whan, 485 S.W.2d at 277-81(Onion, J., dissenting). In a somewhat analogous case, the Court ofAppeals of New Mexico held that the governor's pardon power allowedhim to pardon a habitual offender sentence. The power attached afterconviction, but before sentencing. State v. Mondragon, 107 N.M. 421,424, 759 P.2d 1003, 1006 (1988). The Mondragon court explained that:

"It is well established that, by exercise of the power topardon, the governor can exempt an individual from thepunishment that the law imposes as a result of conviction forcommission of a crime. [Citation.] A sentence enhancement,though imposed on the basis of a defendant's status as anhabitual offender, is nonetheless punishment for commission ofthe crime to which the enhanced sentence attaches. [Citation.]Thus, the power to pardon an individual from punishment forcommission of a crime includes the power to preclude anypunishment that might be imposed, upon conviction of that crime,as a result of an individual's status as an habitual offender."Mondragon, 107 N.M. at 423, 759 P.2d at 1005.

This is a difficult question with little to guide us, but we believe thatthe grant of authority given the Governor under article V, section 12, issufficiently broad to allow former Governor Ryan to do what he did. Asset forth above, the Governor's clemency powers, which attach upon anadjudication of guilt, allow him to mitigate or set aside the punishment forthe crime by issuing a pardon. Pardons may be full or partial, removingsome or all of the legal consequences of a crime, and may be absolute orimposed with conditions. Further, the Governor can grant a reprieve forany sentence imposed and may commute any sentence imposed to a lessersentence. In this situation, what former Governor Ryan essentially did wasto grant the inmates listed in count II a partial pardon by pardoning onlythe possible capital consequences of the offense. As we noted, a partialpardon exonerates a defendant from some but not all of the punishment orlegal consequences of a crime. Black's Law Dictionary 1113 (6th ed.1990); Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky. 2003)(construing power of the governor to issue "pardons" under stateconstitution as including power to issue partial pardons). The Governor'spardon power allows him to remove or mitigate the consequences of acrime, and that is what he did here by removing the maximum sentence forthese defendants in future sentencing hearings. We deem it irrelevant thatthe Governor used the term "commutation" in his clemency orders,because we believe that it is the substance, not the terminology, of theclemency orders that controls. See Ex parte Black, 123 Tex. Crim. 472,474, 59 S.W.2d 828, 829 (1933) (construing governor's clemency orderto be a "reprieve" even though governor used the word "furlough"; "it isthe substance of the proclamation of the governor and not the name bywhich it is designated, that controls its effect"). We emphasize the limitednature of our holding. We hold only that the Governor's constitutionalauthority to issue pardons after conviction is sufficiently broad to allow himto reduce the maximum sentence the defendant is facing. In such asituation, the Governor is exercising his power to prevent or mitigatepunishment by pardoning the defendant from the full extent of thepunishment allowed by law.

With respect to two of the inmates listed in the exhibit to count II,Gregory Madej and Renaldo Hudson, former Governor Ryan commutedtheir sentences to specific terms of life imprisonment rather than tomaximum terms. However, we believe that these two inmates remainedunder a sentence of death and thus a commutation to a specific term wasappropriate. Gregory Madej had been granted relief in a federal habeascorpus proceeding. Thus, for the reasons stated in granting the motionfiled by inmates Bracy and Collins, Madej had an existing sentence ofdeath that was subject to commutation.

Renaldo Hudson had his sentence vacated by the circuit court in apostconviction proceeding. The court denied relief as to Hudson'sconviction, but ordered a new sentencing hearing. The State appealed,and this court remanded the cause to the circuit court for an evidentiaryhearing on a jury-selection issue. However, we retained jurisdiction of thecause and ordered the circuit court to file a decision within 90 days.People v. Hudson, 195 Ill. 2d 117, 138 (2001). The circuit courtdecided the issue adversely to Hudson, and this court ordered additionalbriefing on the issue. After defendant and the State had each filed anadditional brief, and while the cause was still pending before this court,former Governor Ryan issued the commutation orders. Thus, the issue ofwhether Hudson was entitled to a new sentencing hearing had not beenfinally decided. We agree with Hudson that at the time the commutationorders were entered he was not awaiting a new sentencing hearing.Rather, he was still waiting for a decision from this court as to whether hissentence should be vacated and if he should receive a new sentencinghearing. See People v. Brown, 204 Ill. 2d 422, 425 (2002) (commutationorder valid when issued after this court vacated death sentence but whilecase was still pending on rehearing and mandate had been stayed pendinga writ of certiorari to the United States Supreme Court). Thus, webelieve that former Governor Ryan had the authority to commuteHudson's sentence to life imprisonment.

We next address counts III and IV of the complaint. Petitionersargue that the clemency orders for most of the defendants listed in theexhibit to count II were invalid because they commuted to a maximumterm rather than to a specific sentence. Petitioners contend that acommutation replaces a judicially imposed sentence with an executivelyimposed sentence, and therefore the commutation must be to a specificterm. If the sentence is for a maximum term, it leaves resentencing up tothe judiciary, and petitioners claim that this is an improper delegation of thecommutation power. See People ex rel. Brundage v. LaBuy, 285 Ill.141, 144 (1918) (power to grant reprieves, pardons, and commutationsis vested in the Governor and cannot be vested in another officer or body,directly or indirectly).

These arguments fail because, as we explained above, then-GovernorRyan's clemency orders were more in the nature of limited pardons thansentencing commutations. The orders pardoned these inmates from themost severe potential consequences of their crimes-capital punishment.Thus, there was no problem with orders that set a maximum term, and theGovernor was not delegating any of his clemency powers to the judiciary.These inmates were already going to receive new sentencing hearingsordered by the judiciary. The clemency orders merely removed the mostsevere possible punishment from consideration at these hearings.

Finally, petitioners claim that then-Governor Ryan's clemency ordersviolated separation of powers principles for two reasons. First, petitionersargue that the former Governor usurped the authority of the State'sAttorneys to decide what punishment to seek in these cases. Second,petitioners argue that former Governor Ryan interfered with the judiciary'ssentencing powers.

We perceive no separation of powers problems. First, when theState's Attorneys perform their roles as prosecutors, they are membersof the executive branch of government. People ex rel. Daley v. Suria,112 Ill. 2d 26, 37 (1986). The separation of powers doctrine applies onlyto powers assigned to separate branches of government. See Ill. Const.1970, art. II, 1 ("The legislative, executive and judicial branches areseparate. No branch shall exercise powers properly belonging toanother"). Further, petitioners concede that, following an adjudication ofguilt, the Governor can grant a defendant a complete pardon, removingfrom the State's Attorneys the ability to seek any punishment against theindividual. Here, the Governor exercised the much lesser power ofpreventing them from seeking only the maximum penalty provided by law.

Similarly, there is no separation of powers problem between theGovernor and the judiciary. As set forth above, following a conviction, theGovernor's constitutional clemency powers allow him to completely orpartially absolve a defendant of the consequences of his crime, and tosuspend or commute any sentence imposed by the judiciary. FormerGovernor Ryan did not exercise any powers reserved to the judiciary inentering these orders, but rather exercised the clemency powers grantedhim by the constitution. We deny petitioners' request for a writ ofmandamus on counts II, III, and IV.

As a final matter, we note that clemency is the historic remedyemployed to prevent a miscarriage of justice where the judicial processhas been exhausted. Cherrix v. Braxton, 131 F. Supp. 2d 756, 768(E.D. Va. 2000). We believe that this is the purpose for which the framersgave the Governor this power in the Illinois Constitution. The grant of thisessentially unreviewable power carries with it the responsibility to exerciseit in the manner intended. Our hope is that Governors will use theclemency power in its intended manner-to prevent miscarriages of justicein individual cases.

For all of the above reasons, the petition for a writ of mandamus isdenied.

Writ denied.

Source: Illinois Supreme Court

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