Keating, Brendan

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Public Interest Law Reporter
Volume 8
Issue 1 Winter 2003 Article 5
2003
Executive Clemency: An Ancient Power and a
Modern Solution
Brendan Keating
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Brendan Keating, Executive Clemency: An Ancient Power and a Modern Solution, 8 Pub. Interest L. Rptr. 12 (2003).
Available at: http://lawecommons.luc.edu/pilr/vol8/iss1/5
FEATURE: Executive Clemency
EXECUTIVE CLEMENCY: AN ANCIENT
POWER AND A MODERN SOLUTION
By Brendan Keating
F ormer State of Illinois Governor George
Ryan's recent blanket commutation of
Death Row inmates has cast
unprecedented light on an ancient, complex and
increasingly vital power executive clemency. The
former governor's pardons and commutations of
inmates sentenced to death are unprecedented
in the history of the United States. Steve Mills
and Christi Parsons, The System has Failed,
Cm. TRm., Jan. 11, 2003, at 1.
While legal scholars and state's attorneys
debate the power of the governor to issue such a
blanket clemency, another aspect of the clemency
power has gone unheralded. While clemencies
are often granted to high profile crimes or
criminals, or cases in which there has been a gross
miscarriage ofjustice, they are also the only way
that most regular people can get their criminal
records cleared. In this age of scarce jobs and
mandatory background checks, this is a serious
issue that will only become more dire in the
coming years.
The term clemency
is a broad one, and covers
any executive act that
reduces or remits a
punishment. A pardon is a
type of clemency in which
the conviction is entirely
wiped out. A commutation
is a reduction in sentence
while a reprieve postpones
punishment. Daniel Kobil,
The Quality of Mercy
Strained: Wresting the
Pardoning Power from
the King, 69 TEx. L. REv.
569, 575-78 (1991). For
instance, on January 11 former Governor Ryan
issued 156 commutations, lessening these
sentences from death to life, and pardoned six
men, clearing away their conviction entirely. A
"..... many people who come to me
for help have been misinformed
about the impact a guilty plea will
have on their lives beyond the end
oftheir sentence."
- Marjie Nielsen, Staff Attorney,
Chicago Legal Clinic
clemency, in its pardon form, can also be issued
to an individual who has already completed his
sentence, erasing his criminal record.
The clemency power is so ancient that
Plutarch made mention of it 2,000 years ago. In
Roman times if a vestal
virgin crossed the path of a
condemned man on his way
to the gallows, his life was
spared. Plutarch, Numa
Pompilius, in The Lives of
the Noble Grecians and
Romans, 74, 83 (J.
Dryden trans., Modern
Library ed., 1932).
However, this meeting had
to be purely by chance and
not purposeful.
Wemighthopethat
our justice system is less
capricious, but the
P PUBLIC INTEREST LAW REPORTER W TPAGE 12 IN ER 2003
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Keating: Executive Clemency: An Ancient Power and a Modern Solution
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FEATURE: Executive Clemency
clemency power has kept some its mystical nature
right into modem times. Several years ago when
Pope John Paul II was visiting St. Louis, a man
named Darryl Mease was slated for execution.
Mease was convicted of a murder in which he
brutally killed a paraplegic. However, during a
prayer service the Pope requested that the
governor of Missouri commute his sentence.
Despite the fact that the governor had already
presided over 26 executions, he granted the
clemency. Terry Ganey, Carnahan Spares
Murderer 's Life, ST. Louis POST-DISPATCH, Jan.
29, 1999, at 1.
Part of the magisterial quality of clemency
is derived from its historic roots. In England, the
clemency power was vested in the monarch.
Since all crimes were considered crimes against
the throne, and not against the people, it was
considered the prerogative of the king or queen
to grant a clemency. This power was often used
to temper the Draconian punishments of early
English law; because so many crimes were given
capital sentences, the clemency power could
mitigate the harshness of the law. Daniel Kobil,
Sparing Cain: Executive Clemency in Capital
Cases, 28 CAP. U.L. REv. 568, 569 (2000).
Because in English law the clemency
power was derived directly from the throne, early
American jurisprudence was concerned that there
could be no clemency. Nevertheless, the power
was vested in each state and today we have 51
different clemency systems, one for each state
and one for the federal government.
Each of these systems differs slightly.
Though in the majority of states the clemency
power still resides with the governor, some states
are still wary of vesting so much power in a single
executive. In some states, especially those who
liberally exercise the death penalty, such as
Arizona and Texas, the governor can only
commute a sentence with a favorable
recommendation from a clemency board. In
some states, the clemency power is the exclusive
domain of such a board, and others like, Illinois,
still retain the vestiges of royalty and vest the
power exclusively with the governor. Illinois has
a prison review board that oversees clemency
petitions, but the power to grant or deny is still
solely the governor's.
For most clemency petitioners in Illinois,
the goal is not release from prison or commutation
of a sentence, but the erasing of a criminal record.
As more and more jobs, schools and licenses
require mandatory background checks, a criminal
record has become an increasingly difficult
obstacle to overcome. For instance, to gain
employment as a truck driver, a clean record is
"In Roman times if a vestal virgin
crossed the path of a condemned
man on his way to the gallows, his
life was spared."
often required so drivers can cross the border
into Canada, a requirement with most shipping
companies. Work as a security guard requires a
clean record to obtain a license to carry a gun.
Employment in health care, child care or obtaining
federal aid for school all require the lack of a
criminal record. To even set foot on CHA soil
with a criminal record can cause the eviction of
family members who live there. Fox Butterfield,
Freed from Prison, but Still Paying a Penalty,
N.Y.TIMES, Dec. 29, 2002, at 18. With an
increasing amount of inmates being imprisoned
and eventually released fromjail every year, this
is a worrying problem. With nowhere to go and
no job prospects, many of these people will be
forced back into a life of crime to make a living.
In Illinois, someone with a criminal
record has two ways to try to fix this situation. If
he was charged without being convicted, or was
sentenced to certain types of supervision or
probation, he could try to obtain an expungement.
An expungement is a request he can file with a
clerk of the court in order to erase his criminal
record. An expungement can be obtained only in
PUBLIC INTEREST LAW REPORTER WINTER 2003PAGE 13
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FEATURE: Executive Clemency
a few limited circumstances: if the accused got a
not guilty verdict, the case was dismissed, he was
given court supervision or he was given a 1410
probation. 1410 probation is a special type of
sentence that is usually given to first-time drug
offenders. If the accused completes the 1410
probation, he must wait five years and then he
can file an expungement. Similarly, if he was given
court supervision, he must wait two years after
the completion of the supervision to file an
expungement. Unless he can show an extreme
level of poverty, an expungement will cost him a
total of $180 to file. If he has more than one
expungeable charge on his record, they will all
be cleared. However, if there is even one
conviction on his record, he will need to a get a
clemency, a much greater ordeal.
"...today we have 51 different
clemency systems, one for each
state and one for the federal
government."
If convicted of a crime, whether it is a
misdemeanor or a felony, the only way to remove
that conviction from the criminal record is through
a clemency petition asking the governor for a
pardon. Probation, unless it is 1410 probation,
is a conviction. Paradoxically, so is a sentence of
"conditional discharge." Many defendants, after
being sentenced to probation, feel like they have
gotten off easy, when in fact, they will now carry
a record that will haunt them the rest of their lives.
Marjie Nielsen, a Staff Attorney at the Chicago
Legal Clinic who assists clients with clearing their
criminal records, points out the problem that
''many people who come to me for help have
been misinformed about the impact a guilty plea
will have on their lives beyond the end of their
sentence. They have often been told that the
conviction will disappear from their records after
their terms of probation end, while others are
told that their convictions can be expunged."
Unfortunately for these clients, obtaining a
clemency is much harder than an expungement,
and the results are far less certain.
The clemency process is rather long and
involved. After a person has been convicted, and
has no appeals pending, only the governor can
clear her record. The Prisoner Review Board,
which makes clemency recommendations to the
governor, receives and reviews detailed executive
clemency requests. Each petitioner has the right
to a public hearing in front of the Prisoner Review
Board regarding this request. The Office of the
State's Attorney is given notice of the hearing
and can oppose the request in person or in writing.
The Board then makes a recommendation to the
governor who either grants or denies the
clemency petition.
A clemency petition typically includes a
statement by the petitioner. This statement includes
her criminal history, particulars about the crime,
educational history, work history, personal
information and reasons for seeking a clemency.
Since a clemency is a matter of executive grace,
the petitioner has to persuade the Prisoner Review
Board to recommend to the governor that he grant
a pardon. Usually, this petition includes letters of
recommendation, a resume and anything else the
petitioner thinks might help persuade the governor
and the board. According to Ms. Nielsen, a
strong candidate for clemency will have at least
seven years of a clean record, at least five years
will have passed since the end of the petitioner's
last sentence, she will have a high school diploma
or GED, some significant employment history,
and significant changes in her personal life, such
as recovery from addiction, sincere religious
experience, or a new or renewed commitment
to family.
The eccentricities of the clemency system
are best displayed in the difference between those
Continued on Page 35.
PUBLIC INTEREST LAW REPORTERPAGE 14 WINTER 2003
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Keating: Executive Clemency: An Ancient Power and a Modern Solution
Published by LAW eCommons, 2003


Executive Clemency: An Ancient Power and a Modern Solution

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