Petitioning for Clemency in Illinois: Has COVID-19 Changed the Calculus Regarding Sentence Commutations?

With COVID-19 infecting prison staff and inmates in large numbers across the U.S., governors are facing pressure to commute prison sentences – especially for those with underlying medical conditions, are elderly, close to their release date, or have served significant time in prison.

While it is true that COVID-19 has shown the spotlight on prisons, for those inmates not considered at high risk for contracting and dying from the virus, the factors normally used to weigh the merits of a petition seeking a sentence commutation probably haven’t changed much. The rest of this article will discuss what these factors are.

Illinois Has No Eligibility Guidelines for Clemency

Here in Illinois, unlike other states, there are no rules stating when someone is eligible to apply for clemency. In other words, anyone can petition for clemency whenever they want – whether that’s for a pardon with permission to expunge or a sentence commutation. The only written rules set forth what information must be in the petition.

Also, unlike some states, the decision whether someone should be granted clemency rests entirely in the hands of the governor. While it is true the Illinois Prisoner Review Board (PRB) is responsible for holding public clemency hearings and is required to make a confidential recommendation (to the governor). The PRB’s recommendation is non-binding, meaning the governor can take it or leave it. Moreover, in recent years most Illinois governors have looked to other personnel to help them make these decisions.

Just because there aren’t any eligibility guidelines does not mean that there aren’t unwritten rules pertaining to when it is prudent to petition for clemency. For example, if someone is still on parole -- what we now refer to as mandatory supervised release (MSR) -- it would be premature to seek a pardon. Similarly, if someone has been sentenced to a lengthy prison term – say 40 years – it would not be a good idea to seek a sentence commutation five years into that sentence, unless the person has been wrongfully convicted.

Weighing Those Unwritten Factors

Most people petitioning for a commutation are looking to have their sentences commuted to “time served” resulting in their immediate release. Even in those instances where someone’s sentence is commuted to time served, he/she still will mostly likely serve a period of MSR. To date, Governor J.B. Pritzker has only commuted one sentence without MSR.

The Role Prosecutors, Victims & Their Families Play in Commutations

In the spring of 2012, I attended my first clemency hearing. I was representing a client seeking a pardon. I also got to witness my first commutation hearing. The memory of that hearing remains fresh in my mind because of the raw emotions laid bare as the parties for and against the petition spoke. Despite the passage of time, there was no closure for the families impacted.

In the summer of 1970, two white Chicago police officers were shot and killed on the grounds of the Cabrini Green housing project. Two African American men, ages 17 and 24, were charged and convicted of the crime. Both were sentenced to life terms. Both men have maintained their innocence to this day. I don’t recall which of the two men petitioned for clemency.

As is customary, members of the defendant’s family spoke first. A paralegal served as the family’s legal representative. Inmates are not allowed to attend these hearings. The original prosecutor in the case and several members of both officers’ families spoke in opposition to the petition. I would later discover that most of the people sitting around me in the spectator section were supporters of the deceased officers. When the hearing concluded some 45 minutes later, almost everyone got up to leave – sucking up the remaining oxygen in the room as they quietly filed out. The petition was later denied.

While most commutations petitions do not involve crimes of such notoriety, this story highlights two critical factors: 1) prosecutors routinely object to commutation petitions, and 2) victims and their families are notified when these petitions are filed and are given ample opportunity to voice their opposition.

An Uneven Playing Field

Prosecutors are not required to notify petitioners prior to hearing that they are going to object. Depending on the size of the prosecutor’s office, some will simply file a written objection, while others file a written objection and appear at the hearing to testify.

I’ve always considered it somewhat unfair that prosecutors are not required to provide advance notice or a copy of their written objection. Ordinarily, one learns of the prosecutor’s objection on the day of the hearing. I try to even out the playing field by asking the prosecutor’s office if they plan to object and, if so, request a copy of it. This way, neither I nor my client gets blindsided at the hearing.

Convincing the prosecutor’s office not to object is critical to raising the odds that the governor will grant the petition. This will not always be possible to do. If the facts of a case are particularly gruesome or the victim(s) especially sympathetic, prosecutors are not likely to stand down. It is never easy listening to how a crime has affected a victim or his or her family.

Recently I received a call from the sister of an inmate who petitioned for commutation last year and is still awaiting a decision. Her brother had been sentenced to 28 years for home invasion where there was a victim. Four years ago, the victim reached out to the woman’s brother and said she’d forgiven him. The story didn’t end there. The victim started writing letters, sending birthday cards, and calling the man.

By the time the family was ready to file a petition for clemency on behalf of their brother the victim had sent the man in excess of 50 letters. The victim also wrote a letter supporting his petition for clemency.

Despite this overwhelming evidence of forgiveness and reconciliation, the county prosecutor’s office wrote in its objection (it did not appear at the hearing) that the victim was still afraid of the defendant and feared his release from custody.

Why would the prosecutor write something clearly at odds with the victim’s own recent words and actions? Because arguments like this keep people in prison, regardless of how old the crime or how young the defendant was at the time he/she committed the crime.

Other Factors to Weigh

In addition to the details of the crime, objections from prosecutors and victims/family members, other factors that are considered include: an inmate’s prison disciplinary record, how he/she has utilized their time in custody (e.g., taking advantage of available educational opportunities, prison work history, being a role model to others).

It is also important to have a well thought out post-release plan. Do you have a place to live? Do you know what type of work you’re going to look for? Do you have a lead on a job or located a job readiness program you’d like to enroll in?

Not being able to answer all these questions right now is not a deal breaker. But, at the very least, an inmate must be able to identify a place to live. If he/she is fortunate enough to have a job waiting on the outside, all the better. Last but not lest having a strong family/friend support network is helpful.

If after reading this post you believe that you or a loved one is a good candidate for a sentence commutation, please feel free to contact me. I promise to give you my honest opinion -- at no cost – as to whether now is the time to request a sentence commutation.