The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

NIU's Northern Exposure
Madigan v. Snyder The Illinois Supreme Court Evaluates the Governor’s Pardon Power
By Martin P. Simpson

In January of 2000, former Governor George Ryan placed a moratorium on capital punishment in Illinois.1 On January 11, 2003, he made good on statements that he felt the capital punishment system in Illinois was broken, and commuted the sentence of 167 death row inmates.2 This occurred the day after pardoning four death row inmates proven innocent.3 The outcry was immediate and loud from capital punishment proponents. In January of 2004, the Illinois Supreme Court ruled on a motion by the Illinois Attorney General, Lisa Madigan, seeking a writ of mandamus ordering two correctional facility wardens and the Director of Corrections to ignore former Governor Ryan’s commutation of all death row inmates in Illinois.4

This article will first discuss the requirements for a writ of mandamus in the Illinois Supreme Court. Next, it will look at the applicability of Governor Ryan’s commutation to those inmates who did not apply for clemency. Third, it will consider the effects of this applicability on certain inmates whose sentence had been suspended or were otherwise waiting for re-sentencing. This will include an investigation into the verbiage used by the legislature and the effect it has upon the decision of the court. In conclusion will be a brief discussion of the Illinois Supreme Court’s admonition of Governors, past and present, to restrain themselves in the use of their constitutional power to pardon or commute inmate sentences.

As an action for a writ of mandamus, the case was before the Illinois Supreme Court as an original action.5 A writ of mandamus is not a matter of right, but is heard only at the court’s allowance, in the exercise of its discretion and with leave to file a petition for the writ.6 While the well established criteria for granting the petition seem lacking in this case, there is certainly a novel issue of great importance to the citizens of the state: Does the governor have the authority to issue a “blanket clemency” for all inmates on death row and can the court order the state prison officials to ignore it with a writ of mandamus? Attorney General Madigan filed a four-count complaint challenging the validity of the commutations with respect to two different classes of inmates.7 The court held that the Governor’s constitutional authority to commute or pardon is sufficiently broad to validate former Governor Ryan’s actions.8

The first group of inmates the petitioners challenged was those who did not sign or otherwise consent to their clemency petitions.9 The petitioners cite Article V, section 12 of the Illinois Constitution of 1970, which states, “[t]he Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by law.” The legislature has enacted section 3-3-13 of the Unified Code of Corrections,10 in exercise of its authority to regulate the process of application for clemency by inmates in Illinois correctional facilities.11 This section of the statute states that an application for clemency “shall be in writing and signed by the person under conviction or by a person on his behalf.”12(Italics added). In short, in order for a clemency application to be commenced for a person who has been sentenced to death, they must consent. If the inmate fails to meet this criterion, the Director of Correction and the Governor do not have to review the application.13

Count I of the complaint alleged that Article V, section 12, allowed the legislature to regulate the method and manner of applying for commutations if it chose to do so. Further, the General Assembly exercised its authority under the Illinois Constitution to regulate the process in section 3-3-13 of the Unified Code of Corrections.14 The petitioner’s argument was that the General Assembly, by prescribing the method in which inmates who seek to have the Governor commute their sentence must follow, (place their request in writing and sign it, or have an authorized person do so), the Governor is barred from granting a commutation that fails to follow the guidelines.15 It was petitioner’s belief that the statute limits the Governor’s authority to grant a pardon or commutation only to inmates that have authorized the action.16 However, the Illinois Supreme Court disagreed, finding that section 12 merely gives the legislature the opportunity to regulate the process for applying for clemency.17 Section 12 does not give the legislature the power to regulate or otherwise control the authority the Governor has in granting clemency.18 The court stated that, “[petitioners] contention must fail under the current constitution, which allows the legislature to regulate the applications process but does not in any way restrict the Governor’s power to act.”19 Further, the court stated that if the legislature had the power to control the Governor’s authority to grant clemency, it could effectually nullify that power by “enacting regulations sufficiently strict to prevent any clemency petition from ever reaching the Governor.”20 This did not seem to be the intent of the framers of the 1970 Illinois Constitution. The 1970 Constitution removed the phrase “subject to such regulations as may be provided by law relative to the manner of applying therefore” which appeared in the 1870 Illinois Constitution.21 The framers of the 1970 Constitution went even further in their desire to show that no one would misunderstand the meaning of the amendment. They stated, “[n]othing in this Section shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon.”22

The court continued its discussion relating to the differences between the 1870 and 1970 Constitutions. The court eventually came to the conclusion that the language of the current Illinois Constitution, and section 3-3-13 of the Unified Code of Corrections would give the Governor the ability to deny review of a petition for clemency or pardon, if the inmate had not signed it.23 The lack of signature does not, however, prevent the Governor from reviewing the petition if he so chose. The writ of mandamus was then denied for Count I.

The next class of inmates challenged was that group the petitioner argues are not currently under sentence. The court addresses two inmates by name due to their special circumstance, William Bracy and Roger Collins, and looked at the effect a writ of habeas corpus would have on their state imposed sentence.24 The two inmates, as respondents, argued that their sentences were intact at the time of the Governor’s blanket commutations.25 The petitioners believed that when the federal court has issued a writ of habeas corpus and ordered a new sentencing for the inmates, they no longer are under the prior sentence.26 The court held in favor of respondents, Bracy and Collins, citing the United States Supreme Court in Fay v. Noia; Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner.27

When the federal court has granted a writ of habeas corpus it is only to tell the state that the case against the inmate needs to be reevaluated, not that the state decision is wrong or void.28

Next, petitioner attempted to argue that the word “conviction” from Article V, section 12 of the 1970 Illinois Constitution had at least two different meanings.29 It was the petitioner’s assertion that the word “conviction” referred to “both an adjudication of guilt and the imposition of a sentence” when applied to commutations.30 At other times, however, “conviction” only refers to the adjudication of guilt, such as in the Governor’s pardoning power.31 The argument that the word had different meanings within the same section of Article V was not accepted by the court. Rather, the court used the commonly understood meaning of the word to be the framers intent.32 Petitioners pointed to the Illinois Supreme Court’s own ruling in People v. Woods, in which the court held that the term “date of conviction” was the date of final judgment, including the sentence.33 The court again disagreed with the petitioner and stated that there was nothing, which would cause them to believe that in Article V, section 12, the framers meant any meaning other than the common one.34 After some discussion regarding other states interpretation of the term “conviction”, the court ended this section of the case by stating that the “relevant inquiry is not so much what the phrase “after conviction” means as whether it is within the Governor’s clemency powers to do what former Governor Ryan did here.”35 The court held that the power to pardon given the Governor is extremely broad and sufficient in this case.36

Next, the court explored the different powers available to the Governor in Article V, section 12. It is important to understand the different types of action the Governor can take when dealing with an inmate’s sentence. Article V, section 12 gives the Governor the power to grant “reprieves, pardons, and commutations.” Pardons may be “full, partial, absolute or conditional.”37 It was the opinion of the court that former Governor Ryan, in acting to remove the death penalty from the inmates whose sentence had been set aside and not reviewed, actually provided partial pardons, as opposed to commutations.38 A partial pardon is described as one, which “remits only a portion of the punishment or absolves from only a portion of the legal consequences of the crime.”39 Using petitioners’ description of the term “conviction” and their admission that the term applies to pardons after only the adjudication of guilt, it was then easy for the court to find that the Governor did act within his power to provide inmates with partial pardons. The only restriction that has been placed on the Governor’s clemency power is that he cannot alter the crime, or change the conviction from one crime to another,40 i.e. he may not change a murder conviction to a manslaughter conviction. The court held that former Governor Ryan did have sufficient constitutional authority to issue pardons after conviction, which allowed him to reduce the maximum sentence any defendant was facing.41

The court then devoted little time to discussing counts III and IV of the complaint. The petitioner argues that a commutation must be to a specific term and not to a maximum term.42 As discussed above, the Governor actually granted partial pardons, as opposed to commutations. It is expressly given in the power to pardon to “remove or mitigate the consequences of a crime, and that is what he did here by removing the maximum sentence for these defendants in future sentencing hearings.”43 Additionally, the court dismissed any notion of a separation of powers issue, as all players in this suit were under the direction of the Governor and the executive commutation order is within the power of the executive branch of the state government.44

Finally, the court admonished future Governors and reminded them that the power to pardon is essentially unreviewable and carries with it great responsibility.45 When former Governor Ryan cleared the Illinois death row, he stated, “[o]ur capital system is haunted by the demon of error, error in determining guilt, error in determining who among the guilty deserves to die. Because of all of these reasons today, I’m commuting the sentence of all death row inmates, 157 [sic] of them.”46 Though George Ryan had been a strong advocate of the death penalty in Illinois, he eventually found the errors of the system to be more than his conscience could stand.47 Former Governor Ryan did not say he believed that any of the death row inmates were innocent of their crimes. However he felt that if we could not be sure of our system, then we must not give the most severe penalty.48 While former Governor Ryan’s conscience compelled him to act, the court reminds future Governors of the purpose behind the clemency power.49 In such a small, concluding paragraph of the opinion, the Illinois Supreme Court speaks volumes about their view of former Governor Ryan’s actions. The court found his actions to be legal, though not necessarily in step with what the framers of the 1970 Constitution intended. Future Governors should use this power carefully and with discretion in “individual” cases to prevent great miscarriages of justice,50 not simply to clear death row, and one’s conscience, days before leaving office. The death of any innocent person is a travesty. That death is even more reprehensible when administered by the state based on an erroneous adjudication of guilt. It can only be hoped that reforms of the criminal justice system in Illinois have had, and will continue to have the effect of preventing innocent people from being convicted, and especially from being sentenced to the ultimate penalty.

1 “I now favor a moratorium, because I have grave concerns about our state’s shameful record of convicting innocent people and putting them on death row. And, I believe, many Illinois residents now feel that same deep reservation. I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state’s taking of innocent life. Thirteen people have been found to have been wrongfully convicted.” Illinois Government News Network, Governor Ryan Declares Moratorium On Executions, Will Appoint Commission To Review Capital Punishment System, available at (last visited Feb. 25, 2004).
2 Northwestern Law News, Governor George Ryan’s Commutation Announcement (January 11, 2003), available at
3 Death Penalty Information Center, Commutations in Capital Cases On Humanitarian Grounds at (Last checked February 25, 2004).
4 Madigan v. Snyder, No. 95663, 2004 WL 116116 (Ill. 2004).
5 Ill. Sup. Ct. R. 381. Article III, Part G, Rule 381 of the Illinois court rules state that the Supreme Court has original jurisdiction over a writ of mandamus. Id.
6 People ex rel. Carey v. Scotillo, 84 Ill. 2d 170, 49 Ill. Dec. 342, 417 N.E.2d 1356 (1981).
7 Id. at 1.
8 Id. at 9.
9 Id.
10 730 Ill. Comp. Stat. 5/3-3-13 (2002).
11 Id.
12 730 Ill. Comp. Stat. 5/3-3-13(a) (2002).
13 Madigan, 2004 WL 116116 at *3.
14 Id.
15 Id. “Application for executive clemency under this section may not be commenced on behalf of a person who has been sentenced 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 Ill. Comp. Stat. 5/3-3-13(c) (2002).
16 Madigan, 2004 WL 116116 at *3.
17 Id.
18 Id.
19 Id.
20 Id.
21 Ill. Const. 1870, art. V, §13. “The notable changes between the tow constitutions were the addition of the phrase “on such terms as he thinks proper” and the deletion of the “subject to” language.” Madigan, 2004 WL 116116 at *3.
22 730 Ill. Comp. Stat. 5/3-3-13(e) (2002).
23 Madigan, 2004 WL 116116 at *4.
24 Id.
25 Id.
26 Id.
27 Fay v. Noia, 372 U.S. 391, 430-31, 83 S. Ct. 822, 844, 9 L. Ed.2d 594 (1977).
28 Madigan, 2004 WL 116116 at *5.
29 Id.
30 Id.
31 Id.
32 Id. at *6. “[T]he act of proving, finding, or adjudging a person guilty of an offense or crime.” See Webster’s Third New International Dictionary 499 (1993).
33 People v. Woods, 193 Ill. 2d 483, 487, 250 Ill. Dec. 730, 739 N.E.2d 493 (2000).
34 Madigan, 2004 WL 116116 at *6.
35 Id. at *7.
36 Id. The Governor’s clemency powers granted by the constitution “cannot be controlled by either the courts or the legislature. His acts in the exercise of the power can be controlled only by his conscience and the sense of public duty.” People ex rel. Smith v. Jenkins, 325 Ill. 372, 374, 156 N.E. 290 (1927).
37 67A C.J.S. Pardon & Parole § 2, at 6 (2002).
38 Madigan, 2004 WL 116116 at *9. “The Governor’s pardon power allows him to remove or mitigate the consequences of a crime, and that is what he did here by removing the maximum sentence for these defendants I future sentencing hearings. We deem it irrelevant that the Governor used the term “commutation” in his clemency orders, because we believe that it is the substance, not the terminology, of the clemency orders that controls.” Id.
39 67A C.J.S. Pardon & Parole § 2, at 6 (2002).
40 Id. at 8.
41 Madigan, 2004 WL 116116 at *9. “In such a situation, the Governor is exercising his power to prevent or mitigate punishment by pardoning the defendant from the full extent of the punishment allowed by law.” Id.
42 Id. at *10.
43 Id. at *9.
44 Id. at *11. “The separation of powers doctrine applies only to powers assigned to separate branches of government. Id.
45 Madigan, 2004 WL 116116 at *11.
46 Northwestern Law News, Governor George Ryan’s Commutation Announcement (January 11, 2003), available at
47 Id.
48 Illinois Government News Network, Governor Ryan Declares Moratorium On Executions, Will Appoint Commission To Review Capital Punishment System, available at (last visited Feb. 25, 2004).
49 Madigan, 2004 WL 116116 at *11. “[W]e note that clemency is the historic remedy employed to prevent a miscarriage of justice where the judicial process has been exhausted.” Id. (citing Cherrix v. Braxton, 131 F. Supp. 2d. 756, 768 (E.D. Va. 2000)).
50 Id.

Martin Simpson is a second year law student at Northern Illinois University College of Law (expected May, 2005).

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