What to Expect at an Illinois Prisoner Review Board Clemency Hearing
Question:
What is new about the way the Illinois Prisoner Review Board (PRB) conducts clemency hearings?
The current make-up of the PRB contains fewer representatives from law enforcement agencies than in previous years.
PRB hearings are now videotaped, meaning that the governor and his staff finally have an opportunity to see and hear from petitioners who appear before the Board.
Clemency hearings are optional. If a petitioner wants a hearing s/he must request one at time of filing.
It appears the new Cook County State's Attorney, Eileen O'Neill Burke intends to take a much narrower view (than her predecessors) of who qualifies for (or deserves) a pardon or sentence commutation.
The Cook County State's Attorney believes, albeit incorrectly, only petitioners who've suffered a "miscarriage of justice" qualify for clemency.
A lot has changed since I last appeared before the Illinois Prisoner Review Board (PRB or Board) for a clemency hearing. In this blog, I share my reflections from a recent hearing I attended.
PRB has Fewer Law Enforcement Members
Compared to past Boards, the current PRB includes few former law enforcement representatives. Today’s Board has only one former law enforcement representative and two attorneys who previously worked as prosecutors. The remaining members include: a civil practice attorney, a retired judge, a retired state legislator, educators (2), and social service providers (2).
Only one current member has served on the PRB for more than five years. What that means: every member of today’s 10-member Board has been appointed or reappointed by Gov. JB Pritzker. Historically, Board members, due to their staggered terms, were not appointed by a single governor.
Chicago Clemency Hearings Have New Digs
For years, clemency hearings in Chicago were held at the James R. Thompson Center. Now that the building is no longer owned by the state, clemency hearings are held at 160 N. LaSalle, another government building.
As with many government buildings, one must present a state I.D. to enter. Unlike the Thompson Center, you cannot bring any beverages into the building.
What I saw of the hearing rooms (my client had his room assignment changed twice), the accommodations are much improved. Now, there is more than enough seating so that attendees no longer have to stand in the doorway or wait outside the room until someone leaves.
Clemency Hearings are Videotaped
Probably the most exciting change is that PRB hearings are now videotaped.
I always thought there was a disconnect between hearing and decision. Why? Because the PRB does not have the final say on whether a petitioner is granted a pardon or sentence commutation. The PRB only provides a confidential nonbinding recommendation to the governor. Yet, neither the governor nor his staff attends these hearings.
Now petitioners who appear before the PRB (hearings are optional) finally have the opportunity to be both seen and heard by the governor and his staff. Petitioners must request a hearing when they file their petition for clemency.
Does the Cook County State’s Attorney Believe Anyone Deserves Clemency?
For more than a decade I’ve represented clemency clients with Cook County cases. I never noticed much of a difference between the clemency objection policies of former Cook County States’ Attorneys’ Anita Alvarez and Kim Foxx.
To the contrary, at times they both raised objections I considered either robotic or irrelevant -- whether it was their “standard” objection when it had not been more than 10 years since the end of the petitioner’s last sentence or complaining that the petitioner hadn’t tried sealing their record before applying for clemency.[1] Mind you, I’ve never known another county in Illinois to object on these grounds.
Now, apparently, the new Cook County State’s Attorney, Eileen O’Neill Burke, has added yet another puzzling objection to its arsenal.[2]
The client I most recently represented before the Board is seeking a full pardon for immigration purposes. Given recent high-profile deportation efforts by the Trump Administration, my client faces a genuine risk of deportation. My client has lived in the U.S. since he was a young teen. Due to a serious drug addiction, he lost his Green Card and the U.S. government moved to deport him. Although an immigration judge allowed him to stay, the basis upon which my client remains in the U.S. is now on shaky ground.
Despite meticulously outlining the immigration ramifications of his case (as well as his significant rehabilitative efforts since his last case nearly 20 years ago), the Cook County State’s Attorney objected to my client’s pardon request.
In justifying its objection, the State explained that clemency is “an extraordinary remedy … reserved for the most extraordinary cases.” The State went on to say that clemency is used “to prevent a miscarriage of justice where the judicial process has been exhausted.” The State then concluded that my client “does not present any uniquely adverse consequences” deserving of clemency.
Clemency Not Meant to Prevent a “Miscarriage of Justice”
Clemency is an act of forgiveness recognized under the Illinois Constitution. It is generally given to someone who has taken responsibility for their crime(s) and, over a period of years, turned their life around but continues to experience the adverse consequences of having a criminal record. Thus, to say that clemency is limited to cases involving “a miscarriage of justice” is simply false.
As I understand the State’s position: clemency would only be awarded to those convicted of crimes they did not commit. Based on that interpretation, none of the clients I’ve represented over the last 12 years would qualify for clemency (since all accepted responsibility for their actions).
In Cook County, we know all about criminal cases involving miscarriages of justice. The Cook County State’s Attorney’s office ranks first in the U.S.: county prosecutor’s office that has sent the most innocent people to prison for crimes they did not commit – a statistic no one should be proud of.
The PRB, however, is not where one goes to seek redress for a wrongful conviction. In fact, the PRB routinely advises petitioners that it does not retry cases. If someone is wrongly convicted, s/he has to file a post-conviction petition in the court where said injustice occurred, file an action in federal court, or submit a request to the Cook County State’s Attorney’s Conviction Review Unit.
To the State’s point that my client failed to identify any uniquely adverse consequences necessitating a pardon, I beg to differ. What is more adverse than being torn from your family, transported across state lines, warehoused in an ICE detention facility, preferably in Texas or Louisiana, and shipped (likely without due process) to a country that has agreed to take these people for a fee (e.g., El Salvador) -- without any regard to whether the individual ever lived there or speaks the language.
Fortunately, the PRB panel who heard my client’s case had no difficulty comprehending the dire consequences my client could face if he doesn’t receive a pardon.
In 2021, when I represented a similarly-situated client, Kim Foxx’s office did not file an objection to his pardon request. Why were my clients treated differently? In 2021, my client’s petition was reviewed by an immigration specialist hired during Foxx’s tenure. Today, the Cook County State’s Attorney’s office no longer employs an immigration specialist.
If the objection filed against my client is indicative of how State’s Attorney Burke intends to “vet” clemency requests, I predict that the vast majority of Cook County clemency seekers will be handed objection letters when they check in for their hearings.
Conclusion
Why is it so difficult to acknowledge when someone has “aged out” of the criminal justice system and has earned the right to be given a second chance which, in some cases, only a pardon can provide?
That’s a question only someone like State’s Attorney Burke can answer.
[1] There is no requirement that someone seal their record before s/he can apply for clemency. Sealing and clemency are separate remedies that provide different forms of relief. For some, sealing does not provide the relief they need. In those instances, why should someone be “penalized” for not pursuing a meaningless remedy?
[2] I am not suggesting that all objections are unwarranted. If someone has committed a crime of violence, has a lengthy criminal record, is a repeat offender of a particular offense (e.g., retail theft), I would anticipate getting an objection.