People v. Morris ( 2006 )

Docket No. 99676.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
RICHARD MORRIS, Appellee.
Opinion filed April 20, 2006.
JUSTICE McMORROW delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald,
Kilbride, and Garman concurred in the judgment and opinion.
Justice Karmeier dissented, with opinion.
OPINION
The defendant, Richard Morris, was convicted of first
degree murder and other offenses and sentenced to death.
While his case was pending before this court on direct appeal,
then-Governor George H. Ryan issued a clemency order which
stated that defendant=s death sentence was commuted to
natural life imprisonment without the possibility of parole or
mandatory supervised release. Thereafter, this court retained
jurisdiction of the case, reversed defendant=s conviction and
remanded the cause for a new trial. See People v. Morris, 209
Ill. 2d 137 (2004).
On remand, the State indicated that if defendant should be
convicted following retrial, it would again seek a sentence of
death. Defendant, relying on the former Governor=s clemency
order, moved the circuit court to bar the State from pursuing
the death penalty. In a written order, the circuit court granted
defendant=s motion. The State then sought, and was granted,
direct appeal to this court under Supreme Court Rule 302(b)
(134 Ill. 2d R. 302(b)). For the reasons that follow, we affirm
the order of the circuit court.
Background
Following a jury trial in the circuit court of Cook County,
defendant was convicted of first degree murder, aggravated
vehicular hijacking and aggravated kidnapping. Defendant was
sentenced to death on the first degree murder conviction and
his case was appealed directly to this court (Ill. Const. 1970,
art. VI, '4(b); 134 Ill. 2d R. 603). Oral argument was held and
the case was taken under advisement.
On January 10, 2003, while defendant=s case was still
under advisement, former Governor George H. Ryan gave a
public speech at Northwestern University Law School in which
he announced that he was exercising the clemency authority
given him under the Illinois Constitution (Ill. Const. 1970, art. V,
'12), and Acommuting the sentences of all death row inmates.@
See Governor George Ryan, Address at Northwestern
University Law School (January 11, 2003); People ex rel.
Madigan v. Snyder, 208 Ill. 2d 457, 462 (2004). In the speech,
the former Governor discussed several problems that he
believed existed with the death penalty in Illinois and stated
that he was granting a Ablanket commutation@ because, in his
view, the AIllinois capital punishment system is broken.@
Governor George Ryan, Address at Northwestern University
Law School (January 11, 2003); Snyder, 208 Ill. 2d at 468. The
same day that he delivered the speech, the former Governor
issued clemency orders for each of the death row inmates,
including defendant. Defendant=s clemency order stated:
AWhereas, Richard Morris BB65709 was convicted of
the crime of Murder, Case #96 CR 00123B01 in the
Criminal Court of Cook County and was sentenced
January 29, 1999 to Death and whereas it has been
represented to me that said Richard Morris BB65709 is
a fit and proper subject for Executive Clemency.
Now, Know Ye, that I, GEORGE H. RYAN, Governor
of the State of Illinois, by virtue of the authority vested in
me by the Constitution of this State, do by these
presents:
COMMUTE THE SENTENCE OF
Richard Morris
Sentence Commuted to Natural Life Imprisonment
Without the Possibility of Parole or Mandatory
Supervised Release[.]@
Following the issuance of the clemency orders, the Illinois
Attorney General filed an original action in this court which
challenged the validity of the orders with respect to two
categories of death row inmates. See Snyder, 208 Ill. 2d 457.
The first category consisted of a group of inmates who had
failed to sign or otherwise consent to their clemency petitions.
The Attorney General maintained that, pursuant to statute, the
Governor had no authority to grant clemency to these inmates.
Snyder, 208 Ill. 2d at 462-63. The second category consisted
of a group of inmates who had been sentenced to death, but
whose sentences had been reversed on direct appeal or in
postconviction proceedings. These inmates were awaiting new
sentencing hearings at the time the clemency orders were
issued. For most of the inmates in this category, the clemency
orders stated that their sentences were ACommuted to a
Sentence Other Than Death for the Crime of Murder, So that
the Maximum Sentence that may be Imposed is Natural Life
Imprisonment Without the Possibility of Parole or Mandatory
Supervised Relief [sic].@ See Snyder, 208 Ill. 2d at 464. The
Attorney General maintained that the Governor had no
authority to grant a preemptive commutation to these
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Aunsentenced@ inmates and that he had improperly encroached
upon the judiciary=s sentencing powers in doing so. Snyder,
208 Ill. 2d at 463-64.
This court rejected the Attorney General=s challenges to
both categories of inmates. With respect to the Aunsentenced@
inmates we stated:
AThis is a difficult question with little to guide us, but
we believe that the grant of authority given the Governor
under article V, section 12, is sufficiently broad to allow
former Governor Ryan to do what he did. As set forth
above, the Governor=s clemency powers, which attach
upon an adjudication of guilt, allow him to mitigate or set
aside the punishment for the crime by issuing a pardon.
Pardons may be full or partial, removing some or all of
the legal consequences of a crime, and may be
absolute or imposed with conditions. Further, the
Governor can grant a reprieve for any sentence
imposed and may commute any sentence imposed to a
lesser sentence. In this situation, what former Governor
Ryan essentially did was to grant the inmates listed in
count II a partial pardon by pardoning only the possible
capital consequences of the offense. As we noted, a
partial pardon exonerates a defendant from some but
not all of the punishment or legal 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 state constitution as including power to
issue partial pardons). 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 in 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.
See Ex parte Black, 123 Tex. Crim. 472, 474, 59
S.W.2d 828, 829 (1933) (construing governor=s
clemency order to be a >reprieve= even though governor
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used the word >furlough=; >it is the substance of the
proclamation of the governor and not the name by
which it is designated, that controls its effect=). We
emphasize the limited nature of our holding. We hold
only that the Governor=s constitutional authority to issue
pardons after conviction is sufficiently broad to allow
him to reduce the maximum sentence the defendant is
facing. 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.@ Snyder, 208 Ill. 2d at 476-
77.
Defendant in the case at bar was one of the death row
inmates who did not sign his clemency petition. Consequently,
his case remained under advisement in this court, pending the
resolution of the Attorney General=s complaint in Snyder.
Following our decision in Snyder, we retained jurisdiction of
defendant=s case and entered judgment on defendant=s direct
appeal. See Morris, 209 Ill. 2d 137.
In Morris, we concluded that defendant=s trial counsel
committed fundamental and indefensible errors during the
course of trial. As a result, Athere was a breakdown of the
adversarial process during defendant=s trial such that there was
no meaningful adversarial testing of defendant=s case.@ Morris,
209 Ill. 2d at 188. Accordingly, we held that defendant was
denied the effective assistance of trial counsel. We reversed
defendant=s convictions, and remanded the cause for a new
trial. Morris, 209 Ill. 2d at 188.
On remand, the State indicated that, despite the clemency
order entered by former Governor Ryan, it again intended to
seek the death penalty against defendant. In response,
defendant filed a AMotion to Preclude the State From Seeking
Imposition of the Death Penalty.@ In support of this motion,
defendant pointed to this court=s discussion regarding the
Aunsentenced@ inmates in Snyder. Defendant noted that, in
Snyder, we concluded that the clemency orders entered for the
Aunsentenced@ inmates were, in essence, partial pardons which
removed the maximum sentence possible, i.e., death, for those
inmates. Snyder, 208 Ill. 2d at 476-77. Defendant maintained
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that his clemency order also acted as a partial pardon which
removed the death penalty as a possible sentence if he were
again to be convicted. According to defendant, A[t]he
governor=s clemency order was not conditional. It was
absolute. The governor did not qualify his order by granting the
defendant clemency from the death penalty only if his
conviction were affirmed on appeal, or by stating that the
clemency order would not apply to any inmate whose
conviction was subsequently reversed on appeal and
remanded for a new trial.@
The State, in reply, noted that the clemency orders for the
Aunsentenced@ defendants discussed in Snyder differed from
defendant=s. As noted, the clemency orders for the
Aunsentenced@ inmates stated that their sentences were
ACommuted to a Sentence Other Than Death for the Crime of
Murder, So that the Maximum Sentence that may be Imposed
is Natural Life Imprisonment Without the Possibility of Parole or
Mandatory Supervised Relief [sic].@ See Snyder, 208 Ill. 2d at
464. The State maintained that the foregoing language
indicated that the Governor intended to restrict the outcome of
future judicial proceedings for the Aunsentenced@ inmates. In
contrast, the State noted, defendant=s clemency order states
only that defendant=s sentence is commuted, without any
further qualifying language. Thus, according to the State, the
Governor had no intention to limit the sentence that defendant
could receive following retrial and the State was free to pursue
the death penalty against defendant.
In addition to arguing that his clemency order was, in
substance, a partial pardon, defendant also contended in his
motion that the imposition of the death penalty on retrial would
violate his due process rights and the statutory prohibition
against increasing a sentence on remand under section
5B5B4(a) of the Unified Code of Corrections (730 ILCS
5/5B5B4(a) (West 2004)). Defendant further maintained that the
State=s action in seeking the death penalty on retrial constituted
prosecutorial vindictiveness.
Following argument, the circuit court granted defendant=s
motion. With respect to defendant=s argument that his
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clemency order acted as a partial pardon, the circuit court
stated:
AResolution of this issue must necessarily rest upon a
determination of the Governor=s intent in his grant of
clemency. As the supreme court has recognized, the
pardon power given the Governor in article V, section
12, is extremely broad. [Snyder, 208 Ill. 2d at 473.] In
construing a governor=s clemency order, it is the
substance not the terminology of the order that controls.
People v. Collins, [351 Ill. App. 3d 959, 962 (2004)].
Here, the Governor=s public announcement on January
10, 2003, that he was granting blanket clemency
informs our understanding of his intent. >...today I am
commuting the sentences of all death row inmates.=
[Governor George Ryan, Address at Northwestern
University Law School (January 11, 2003).] The State
misreads the teaching of People ex rel. Madigan. Under
the supreme court=s rubric and rationale in interpreting
the Governor=s exercise of power, it is reasonable to
conclude that he intended to grant a partial pardon to all
of the inmates then residing on death row. His actions
accordingly served to invoke the fundamental
protections provided by the double jeopardy clause and
to bar the State from again seeking a sentence of death
against this defendant.@
The circuit court also agreed with defendant=s contention
that imposition of the death penalty would violate his due
process rights and section 5B5B4(a) of the Unified Code of
Corrections. However, the circuit court rejected defendant=s
argument regarding prosecutorial vindictiveness. The circuit
court granted defendant=s motion and barred the State from
seeking the death penalty.
The State then sought, and was granted, direct appeal to
this court under Rule 302(b) (134 Ill. 2d R. 302(b)). We
subsequently granted leave to former Governor Ryan to file an
amicus curiae brief.
Analysis
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The principal dispute raised on appeal before this court is
the nature of the clemency order entered in defendant=s case,
specifically, whether the order acts as a partial pardon, such
that the State is precluded from seeking the death penalty
against defendant. The State does not dispute that the
Governor has the authority to enter a partial pardon (see
Snyder, 208 Ill. 2d at 476), and the State expressly
acknowledges that Aa partial pardon survives the reversal of
the conviction.@ However, as it did in the circuit court, the State
contends that defendant=s clemency order is a commutation,
not a partial pardon, and that the effect of the commutation
does not survive the reversal of defendant=s conviction.
Defendant maintains, however, that interpreting his
clemency order as anything other than a partial pardon would
lead to absurd results. Defendant notes that one of the
principal reasons former Governor Ryan gave for issuing the
blanket clemency was the frequency with which defense
attorneys were providing inadequate counsel during capital
trials. Defendant observes that this was the same reason that
his conviction was reversed by this court. Defendant argues
that the former Governor could not possibly have intended for
the death penalty to be imposed upon a defendant, such as
himself, who has established one of the very things that led to
the blanket clemency in the first place.
In addition, defendant maintains that the only difference
between his case and those of the Aunsentenced@ inmates in
Snyder who were partially pardoned is one of procedural
postureBthe Aunsentenced@ inmates had already had their
death sentences overturned at the time the clemency orders
were issued while defendant=s reversal came after the orders
were announced. Defendant contends that, because there is
no substantive difference between his case and the
Aunsentenced@ inmates, the former Governor could not have
intended that his case be treated any differently than their
cases. Moreover, according to defendant, to treat his case
differently than the Aunsentenced@ inmates= cases would be
directly contrary to the Governor=s announcement that he was
performing a uniform, or Ablanket,@ clemency for all death row
inmates.
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The circuit court below resolved any confusion regarding
the proper interpretation of defendant=s clemency order by
referring to the speech given by the former Governor at the
time the clemency orders were announced. The circuit court
explained that the former Governor=s announcement Athat he
was granting blanket clemency informs our understanding of
his intent.@ Based on the speech, and this court=s holding in
Snyder, the circuit court concluded that it was Areasonable to
conclude that he [the former Governor] intended to grant a
partial pardon to all of the inmates then residing on death row.@
Accordingly, the circuit court held that the State was barred
from again seeking a sentence of death against defendant.
The State, however, contends that the circuit court erred
when it relied on the former Governor=s speech to discern his
intent regarding defendant=s clemency order. The State notes
that the Governor=s clemency power cannot be controlled by
the courts or the legislature. From this, the State maintains that
in order to ensure the constitutionally required separation of
powers, judicial construction of clemency orders must be
limited solely to the language of the order. The State contends
that the circuit court in this case, when it tried to discern the
former Governor=s intent by referring to the speech, Aessentially
assumed control of the governor=s clemency authority and
concluded that defendant had received a partial pardon
because it presumed that was what Governor Ryan intended.@
Thus, according to the State, the circuit court=s order should be
reversed and the State should again be permitted to pursue the
death penalty.
Contrary to the State=s assertions, separation of powers
principles have not been violated in this case. It is a well-
established rule of statutory construction that, in determining
the intent of the legislature, a court A >may properly consider not
only the language of the statute, but also the reason and
necessity for the law, the evils sought to be remedied, and the
purpose to be achieved.= (Emphasis added.) Lieberman, 201
Ill. 2d at 308, citing People v. Pullen, 192 Ill. 2d 36, 42 (2000);
Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 164 (1997);
People v. Frieberg, 147 Ill. 2d 326, 345 (1992). See generally
2A N. Singer, Sutherland on Statutory Construction '48:03 (6th
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ed. 2000).@ People v. Hanna, 207 Ill. 2d 486, 502 (2003). There
is no separation of powers violation when a court of law
considers the reason for a statute or the purpose the statute is
to achieve. Nor is there any separation of powers violation
when a court of law applies these same principles of
construction to the interpretation of a clemency order. In this
case, the former Governor=s speech clearly set forth the
reasons for the clemency orders, the evils sought to be
remedied, and the purpose the clemency orders were meant to
achieve. As such, the former Governor=s speech was properly
considered by the circuit court.
Further, there is no question that the circuit court properly
interpreted the meaning of the clemency order in light of the
former Governor=s speech. In the speech, the former Governor
states that the blanket clemency which he ordered was
intended to be systemwide, that it was made in response to
what he believed to be systemic problems, and that he
intended the relief he was granting to extend equally to all
inmates on death row. Governor George Ryan, Address at
Northwestern University Law School (January 11, 2003).
Moreover, in his amicus brief filed in this court, the former
Governor expressly confirms that the circuit court properly
understood the meaning of the speech. The former Governor
states that he Aexpressed his intent clearly in his public address
announcing his decision to grant blanket clemency,@ to wit, Ahe
issued clemency to relieve each inmate of the death penalty as
a legal consequence of the offense he had committed.@
Accordingly, it cannot reasonably be said, as the State
contends, that the circuit court violated separation of powers
principles in this case by Aassum[ing] control of the governor=s
clemency authority.@
The cardinal rule of construction when interpreting a
clemency order is to ascertain and give effect to the intent of
the Governor. See Snyder, 208 Ill. 2d at 476-77 (Ait is the
substance, not the terminology, of the clemency orders that
controls@). Former Governor Ryan=s intent is unequivocal in this
case. As explained in his speech and reaffirmed in his
representations to this court, he issued clemency to relieve
defendant Aof the death penalty as a legal consequence of the
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offense he had committed.@ To ignore that intent would be an
inappropriate intrusion by this court upon the clemency power
granted exclusively to the Governor under the Illinois
Constitution. Accordingly, we conclude that the State is
precluded from pursuing the death penalty in this case.
Conclusion
For the foregoing reasons, the order of the circuit court is
affirmed.
Affirmed.
JUSTICE KARMEIER, dissenting:
On January 10, 2003, just days before leaving office, then-
Governor George H. Ryan issued commutation orders affecting
all inmates of the Department of Corrections on death row.
Four of those inmates, Madison Hobley, Stanley Howard,
Aaron Patterson and Leroy Orange, were pardoned on the
grounds that they were actually innocent of the crimes for
which they had been sentenced to death. Three, Mario Flores,
William Franklin, and Montell Johnson, had their death
sentences commuted to a term of 40 years= imprisonment.
Two men, Robert St. Pierre and Patrick Wright, had their
death sentences commuted to ANatural Life Imprisonment
Without the Possibility of Parole or Mandatory Supervised
Relief [sic]; or in the alternative, Sentence Commuted to a
Sentence Other Than Death for the Crime of Murder, So that
the Maximum Sentence that may be Imposed is Natural Life
Imprisonment Without the Possibility of Parole or Mandatory
Supervised Relief [sic].@ Similar relief was granted 11 others.
Ronald Alvine, William Bracey, Cortez Brown, Roger Collins,
Tony Dameron, Tyrone Fuller, Julius Kuntu, Eric Lee, Willie
Thompkins, Bobby O. Williams, and Martin Woolley each had
their death sentences commuted Ato a Sentence Other Than
Death for the Crime of Murder, So that the Maximum Sentence
that may be Imposed is Natural Life Imprisonment Without the
Possibility of Parole or Mandatory Supervised Relief [sic].@
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In the 13 cases where Governor Ryan specified that natural
life imprisonment without the possibility of parole or mandatory
supervised release was to be the maximum sentence, the
defendants were all awaiting resentencing. In four instances,
those involving William Bracy, Roger Collins, Robert St. Pierre
and Patrick Wright, resentencing had been ordered by federal
court. In the other nine cases, those involving Ronald Alvine,
Cortez Brown, Tony Damero, Tyron Fuller, Julius Kuntu, Eric
Lee, Willie Thompkins, Bobby O. Williams and Martin Woolley,
new sentencing hearings had been ordered by this court.
In the remaining 150 cases, including the case of Robert
Morris, the defendant in the proceeding now before us, the
death sentences were simply commuted to Anatural life
imprisonment without the possibility of parole or mandatory
supervised release.@ At the time Governor Ryan granted those
commutations, most of the affected death row inmates had
exhausted their legal remedies. Only 53 still had cases pending
in our court. Twenty-eight of those cases were in the briefing
stage. In six additional cases, briefing had been stayed
pending various developments, including remand for a fitness
hearing and to permit filing of a corrected record. 1 Six other
cases were on our rehearing docket. The remaining 14 cases,
including defendant Morris= case, had been fully briefed and
1
One of the six cases in which briefing had been stayed concerned the
same defendant, Ralph Harris, involved in one of the 28 cases in which
briefing remained underway.
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argued and were on our advisement docket awaiting a
decision. 2
Shortly after Governor Ryan granted the commutations, our
court entered an order, on its own motion, permitting counsel
for parties in the capital cases still pending before us to Afile
with this court any motion deemed appropriate, including but
not limited to the Supreme Court=s continued jurisdiction.@
Based upon the responses we received and the circumstances
of the individual cases, we entered orders retaining jurisdiction
in 15 of the 20 cases on our advisement and rehearing dockets
and transferring 3 of those 20 cases to the appellate court. Of
the 34 cases where briefing was underway or had been stayed,
we allowed the defendant to withdraw his appeal in one case,
dismissed the appeals in three cases, retained jurisdiction in
eight cases and transferred 22 cases to the appellate court.
2
Of the 20 death row inmates whose cases remained on our advisement
and rehearing dockets, only Cortez Brown received one of the
commutations couched in terms of a maximum sentence. That was because
among this group, he alone had been granted a new sentencing hearing. The
other 19 defendants in this group, including defendant Morris, were among
the 150 death row inmates whose sentences were commutated to Anatural
life imprisonment without the possibility of parole of mandatory supervised
release.@
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After this court entered its order permitting counsel to file
appropriate motions with respect to the still-pending capital
cases, the Attorney General filed an original action for
mandamus. See Ill. Const. 1970, art. VI, '4(a); 188 Ill. 2d R.
381. Through that action, the State sought to block
implementation of Governor Ryan=s commutation orders with
respect to the group of death row inmates whose convictions
remained intact but who were awaiting resentencing by the
courts at the time their original sentences were commuted by
the Governor. As the majority opinion points out, this court
rejected that claim. With respect to this group of inmates, we
held that the Governor=s commutations were tantamount to
partial pardons and that it was within the Governor=s authority
to grant such pardons, following conviction, to reduce the
maximum sentence the defendants faced. People ex rel.
Madigan v. Snyder, 208 Ill. 2d 457, 476-77 (2004). 3
The Attorney General=s mandamus action also challenged
the Governor=s authority to commute sentences of certain of
the death row inmates, including the defendant in this case,
who had not signed clemency applications or otherwise given
consent for clemency to be requested on their behalf. Holding
that the statutory procedure governing clemency applications
(see 730 ILCS 5/3B3B13 (West 2002)) does not limit the
Governor=s constitutional authority to grant clemency (Ill.
Const. 1970, art. V, '12), we concluded that the failure of
3 For technical reasons not relevant here, our court also concluded
that four of the so-called “unsentenced” defendants, Gregory Madej,
Renaldo Hudson,William Bracey and Roger Collins, actually
remained under sentence. Bracey and Collins moved to be dismissed
from the mandamus action, and their motion was allowed. People ex
rel. Madigan v. Snyder, 208 Ill. 2d at 469-70, 477-78.
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certain inmates to consent to the clemency petitions did not
prevent the Governor from acting in their favor. People ex rel.
Madigan v. Snyder, 208 Ill. 2d at 465-68.
Based upon the foregoing considerations, this court denied
the Attorney General=s petition for mandamus. We then
vacated orders we had previously entered retaining jurisdiction
over four of the cases on the rehearing docket. We also
ordered an additional two cases on the advisement docket
transferred to the appellate court.
In the period which followed, the various capital cases still
pending proceeded toward final resolution. Richard Morris=
case, over which we continued to retain jurisdiction, was
ultimately decided by our court in March of 2004,
approximately 14 months after Governor Ryan had commuted
the death sentence imposed on Morris in the case we were
reviewing. Our opinion reversed Morris= convictions and
remanded the cause to the circuit court for a new trial on the
grounds that he had been denied the effective assistance of
counsel. People v. Morris, 209 Ill. 2d 137 (2004).
Had Morris not challenged the validity of his underlying
convictions and simply been granted a new sentencing
hearing, there is no question that Governor Ryan=s
commutation order would continue to control and that Morris
would not be eligible for capital punishment. The maximum
penalty that could be imposed is natural life imprisonment
without the possibility of parole or mandatory supervised
release, the punishment specified in the Governor=s
commutation order.
The problem posed by this case, and what distinguishes it
from any of the other cases pending before us at the time
Governor Ryan issued his pardons and commutation orders in
2003, is that Morris succeeded in obtaining more than a new
sentencing hearing. Because his original trial counsel was so
ineffective that Athere was a breakdown of the adversarial
process@ (People v. Morris, 209 Ill. 2d at 188), Morris will
receive a completely new trial at which he will be free to
contest not only whether he is eligible for capital punishment,
but whether he is even guilty of the murder for which he has
been prosecuted.
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In assessing the effect of Governor Ryan=s 2003
commutation order on Morris= new trial, the majority interprets
the Governor=s order by relying on principles of statutory
construction. Slip op. at 9. Clemency proceedings, however,
are not legislative enactments. Although I have located no
Illinois authority on point, courts in other jurisdictions have
recognized that pardon and commutation decisions by the
executive branch are a quasi-judicial function. See, e.g.,
Mellinger v. Idaho Department of Corrections, 114 Idaho 494,
500, 757 P.2d 1213, 1219 (1988); State v. Bowman, 145 N.C.
452, 454, 59 S.E. 74, 75 (1907); see also Lucien v. Preiner,
967 F.2d 1166, 1167 (7th Cir. 1992) (under Illinois law,
consideration of clemency petitions is essentially a judicial
function). Clemency determinations are therefore more akin to
judicial decisions and should be construed according to the
standards governing judgments, not statutes.
The general rule in Illinois is that judicial orders are to be
construed like other written instruments. See Fieldcrest
Builders, Inc. v. Antonucci, 311 Ill. App. 3d 597, 605 (1999).
They should be interpreted reasonably and as a whole so as to
give effect to the apparent intention of the entity which
rendered them. See Winter v. Winter, 69 Ill. App. 3d 359, 363
(1978). They must also be construed with reference to the
issues they were intended to decide. Weigel v. O=Connor, 57
Ill. App. 3d 1017, 1027 (1978). In determining the meaning of a
judgment or decree, one must therefore examine the situation
as it existed when the judgment or decree was rendered. See
Thomas v. Thomas, 56 Ill. App. 3d 806, 808 (1978).
The clemency decisions made by Governor Ryan in this
case and in the case of every other inmate on Illinois= death
row in January of 2003 were made against the backdrop of a
capital punishment system whose reliability had fallen into
serious question. Although the groundwork was set for
reintroduction of capital punishment as early as 1977, when the
General Assembly enacted a revised death penalty statute
following the United States Supreme Court=s decision in Gregg
v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909
(1976), Illinois did not resume executions until 1990, when
Charles Walker was put to death after waiving further
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challenges to his conviction and sentence. Even after that,
executions did not become a regular feature of the judicial
landscape until after John Wayne Gacy was put to death in
1994.
March of 1995 brought the state=s first double execution
when James Free and Hernando Williams were put to death on
the same day. A succession of executions followed that year.
By March of 1999, 12 men had been put to death.
As the pace of executions quickened and the size of Illinois=
death row increased, flaws in this state=s system of capital
punishment began to surface. Defendants found guilty and
sentenced to death were shown to be innocent of the crimes
for which they were convicted. These were not isolated
instances. By the end of 1998, just four years after regular
executions had resumed, more defendants on death row were
being exonerated than were being put to death.
The mounting evidence that Illinois= system of capital
punishment was yielding unreliable results created dissension
on our court (see People v. Bull, 185 Ill. 2d 179, 225-29 (1998)
(Harrison, J., concurring in part and dissenting in part)) and
controversy throughout the state. Four of the exonerated
defendants received a $36 million settlement from the county in
which they had been wrongly convicted. Investigative reports
were published in the press. A national conference on wrongful
convictions and the death penalty was convened in Chicago.
In February of 1999, Justice Harrison sent an open letter to
Governor Ryan calling upon him to exercise the powers
conferred upon him by article V, section 12, of the Illinois
Constitution of 1970 (Ill. Const. 1970, art. V, '12) to declare a
moratorium on executions until the problems presented by the
state=s death penalty law could be addressed. The Governor
declined to act. The following month, when Andrew Kokoraleis
was scheduled to be executed, this court denied Kokoraleis=
motion for a stay and summarily dismissed the appeal from the
denial of his second postconviction petition, which included a
claim of actual innocence based on newly discovered
evidence. That action triggered a vigorous dissent from Justice
Harrison, who wrote:
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AThe fatal defects I have noted in our capital
punishment system are not theoretical. My prediction in
Bull that an innocent person would inevitably be
executed has very nearly come to pass. Last
September, another capital defendant, Anthony Porter
came within 48 hours of being executed. At the time,
there was no real question as to his guilt. The delay was
granted for reasons wholly unrelated to Porter=s
culpability. Subsequent developments showed,
however, that he was, in fact, completely innocent.
Significantly, those developments had nothing whatever
to do with the efficacy of the courts. The courts were
content to take Anthony Porter=s life. He walks free
today only because, as in so many other cases that
preceded his, a dedicated group of volunteers decided
to take up his cause.
In the wake of Bull and the Anthony Porter case,
there has been nearly universal recognition by this
state=s legal community that our system of capital
punishment is in dire need of change. Even those who
have been ardent supporters of capital punishment
have begun to concede the law=s potentially horrific
shortcomings. I do not know what the solution is. No
one seems to. Committees have been convened and
reforms have been proposed, but answers remain
elusive. Perhaps there is no answer. I do know,
however, that until we have a better understanding of
where the system is failing and how, if at all, it can be
remedied, the State of Illinois has no business
continuing to send defendants to their deaths. It must be
stopped from executing Kokoraleis and every other
defendant sentenced under the existing capital
punishment system. It is within the power of the
governor to effectuate this result through the exercise of
his constitutional authority to grant reprieves. Ill. Const.
1970, art. V, '12. If he is unwilling to exercise that
authority, as he has shown himself to be in this case, it
is incumbent upon our court to intercede.
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Even if our present capital punishment laws were
constitutional, I would still grant a stay of execution in
the matter before us today. Our court routinely stays
executions where, as here, a defendant seeks relief
under the Post-Conviction Hearing Act (725 ILCS
5/122B1 et seq. (West 1996)). In fact, the clerk of this
court has prepared a stock form for that purpose. There
is no basis for deviating from our usual practice here.
Kokoraleis= claim of actual innocence based on newly
discovered evidence presents a constitutional question
appropriate for post-conviction relief. People v.
Washington, 171 Ill. 2d 475, 489 (1996). Kokoraleis had
no way of raising this matter in his initial petition, and
putting him to death without affording him the
opportunity to fully litigate the matter is fundamentally
unfair.
***
Where a post-conviction petitioner brings a facially
valid appeal in accordance with the procedures
established by our court, as Kokoraleis has done here,
we have no authority under the law to summarily
dismiss it. The General Assembly has expressly
decreed that final judgments entered upon post-
conviction petitions >shall be reviewed in a manner
pursuant to the rules of the Supreme Court.= 725 ILCS
5/122B7 (West 1996). Supreme Court Rule 651(d) (134
Ill. 2d R. 651(d)) provides that the procedures for
appeals in post-conviction proceedings >shall be in
accordance with the rules governing criminal appeals,
as near as may be.= Nothing in the rules governing
criminal proceedings permits the summary dismissal of
a facial valid, timely, and technically proper appeal. ***
***
*** I do not wish to minimize the gravity of the
offenses for which Kokoraleis has been convicted. The
evidence presented at his trial depicted conduct that is
almost beyond belief. I doubt that any rational person
could read the accounts of [his victim=s] shocking
murder without feeling utter disgust and revulsion. The
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depravity of the crime, however, cannot blind us to our
constitutional obligations. No matter how despicable a
defendant might be, we cannot forsake our allegiance to
the rule of law.@ People v. Kokoraleis, 189 Ill. 2d 721,
722-24 (1999) (Harrison, J., dissenting).
Although Justice Harrison=s protestations did not alter the
outcome of Kokoraleis= case, Kokoraleis was the last person to
be executed in Illinois. Within a month of his execution, this
court acted to establish a special committee to study the trial
and sentencing processes in capital cases. Approximately nine
months later, Governor Ryan followed the course suggested by
Justice Harrison and imposed a moratorium on executions in
Illinois, declaring: AUntil I can be sure that everyone sentenced
to death in Illinois is truly guilty, until I can be sure with moral
certainty that no innocent man or woman is facing a lethal
injection, no one will meet that fate.@ See
http://www.illinois.gov/PressReleases/ShowPress
Release.cfm?SubjectID=3&RecNum=359.
Concerns over reliability of Illinois= system of capital
punishment deepened as the number of exonerated
defendants rose. To my knowledge, 18 men were ultimately
determined to have been wrongly convicted and sentenced to
death. 4 Although complaints were raised by some that the
death penalty was not being applied fairly across racial and
geographic lines, criticism of our system of capital punishment
focused on the risks it posed of condemning to death
individuals who were actually innocent.
When Governor Altgeld pardoned three of the Haymarket
anarchists in 1893, he issued a lengthy pardoning statement to
explain his reasons. J. Altgeld, Reasons for Pardoning the
Haymarket Anarchists (1893). Governor Ryan published no
similar document regarding the clemency orders he issued for
Illinois= death row inmates 110 years later. As the majority
4
They are, in alphabetical order, Joseph Burrows, Perry Cobb, Rolando
Cruz, Gary Gauger, Alejandro Hernandez, Madison Hobley, Stanley
Howard, Verneal Jimerson, Ronald Jones, Carl Lawson, Steven Manning,
Leroy Orange, Aaron Patterson, Anthony Porter, Steven Smith, Gordon
(Randy) Steidl, Darby Tillis, and Dennis Williams.
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notes, however, Governor Ryan=s decision to issue those
orders was accompanied by a speech at Northwestern
University Law School detailing the evolution of his views and
the considerations that motivated his action. That speech, of
which we have previously taken judicial notice (see People ex
rel. Madigan v. Snyder, 208 Ill. 2d at 468), makes clear that
Governor Ryan set aside the death sentences imposed on
Richard Morris and the others on death row for two reasons:
the first was his ongoing concern that the system under which
they had been convicted was unjust and unreliable. AOur
capital system is haunted by the demon of error,@ he wrote.
A[E]rror in determining guilt, and error in determining who
among the guilty deserves to die.@ See Governor George Ryan,
Address at Northwestern University Law School (January 11,
2003).
The second was his belief that the other branches of
government had failed to adequately address the system=s
flaws. His speech spoke of his frustration as he watched
Aas members of the Illinois General Assembly failed to
pass even one substantive death penalty reform. Not
one. They couldn=t even agree on one. How much more
evidence is needed before the General Assembly will
take its responsibility in this area seriously?
***
One of the few disappointments of my legislative and
executive career is that the General Assembly failed to
work with me to reform our deeply flawed system. I
don=t know why legislators could not heed the rising
voices of reform. I don=t know how many more systemic
flaws we needed to uncover before they could be
spurred to action.
***
I cannot say it as eloquently as Justice Blackmun.
The legislature couldn=t reform it. Lawmakers won=t
repeal it. But I will not stand for it. I must act.@ See
Governor George Ryan, Address at Northwestern
University Law School (January 11, 2003).
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The majority construes Governor Ryan=s statements as
evincing an intention to extend a blanket partial pardon from
capital punishment to everyone on death row who was not
pardoned or whose sentence was not commuted to a term of
years. If that were so, however, his clemency orders would not
have been limited to this group of defendants. They would also
have encompassed Cecil Sutherland, who had been previously
sentenced to death but had succeeded in obtaining not only a
new sentencing hearing, but a new trial. Sutherland, who had
won the right to a new trial prior to the Governor=s actions,
received no executive clemency. As a result, he remained
subject to the death penalty on retrial and was, in fact,
sentenced to death again.
Procedurally, the only difference between Richard Morris=
case and Cecil Sutherland=s is that at the time Governor Ryan
made his clemency decisions, Sutherland had already been
granted a new trial. Morris= case was still pending and the
Governor did not know the outcome. Had the Governor been
aware that Morris would likewise be granted a new trial, there
is nothing to suggest that Morris would still have received
clemency where Sutherland did not.
In my view, the events leading up the Governor=s clemency
orders, the statements made by the Governor in his January
2003 speech, and the different manner in which Cecil
Sutherland=s case was handled demonstrate that the
Governor=s actual intention was simply to insure that no one
who had been convicted under the system he regarded as
fundamentally flawed would be put to death based on that
conviction. Achievement of that goal will not be compromised
by permitting the State to seek the death penalty on Morris=
retrial.
The risk of being put to death pursuant to a conviction
obtained under the old system of capital punishment had
already been a eliminated by the time Sutherland was retried
and is not present now. That is so because the old system of
capital punishment no longer exists. Extensive reforms have
been instituted both by the General Assembly and by this
court.
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After becoming aware of the problems with this state=s
death penalty law, Governor Ryan appointed a Commission on
Capital Punishment to determine what reforms, if any, would
ensure that Illinois= capital punishment system is fair, just and
accurate. The Commission=s efforts yielded 85 separate
recommendations dealing with all aspects of how death penalty
cases are investigated, filed, tried, and reviewed.
In the wake of the Commission=s report, the General
Assembly enacted a number of new laws aimed at improving
the state=s system of capital punishment. That legislation
includes Public Act 93B0517, mandating the electronic
recording of confessions in homicide cases; Public Act
93B0655, which requires the decertification of police officers
who commit perjury in the course of a homicide case; and
Public Act 93B0605, which addresses a wide range of issues,
including DNA testing, the reliability of jailhouse snitches, line
up and photo spread procedures, postconviction proceedings
to establish actual innocence, reduction of death eligibility
factors and allowing our court to set aside a particular death
sentence on review whenever we find that the sentence is not
fundamentally just as applied in that case.
Independent of the efforts undertaken by the executive and
legislative branches, our court initiated its own investigation
into how capital trials could be improved. In April of 1999, nine
months before Governor Ryan declared a moratorium on
executions, this court appointed its own committee to study the
trial and sentencing processes in capital proceedings. The
Special Supreme Court Committee on Capital Cases issued its
first set of findings and recommendations on October 28, 1999,
followed by supplemental findings and recommendations in
October of 2000 and a second set of supplemental findings
and recommendations in January of 2001. As a result of the
Special Committee=s efforts, our court undertook one of the
most comprehensive revisions of its rules in recent history,
amending four existing rules and adding four entirely new rules.
Highlights of the rules revisions included:
(1) creation of a capital litigation trial bar,
establishing minimum standards of training and
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experience for defense counsel and assistant
prosecutors appearing in capital cases;
(2) provision for Capital Litigation Regional Seminars
to give specialized training for all judges who may
preside over death penalty cases as part of their
designated duties;
(3) implementation of new requirements for the
management and administration of death penalty cases,
including imposition of time deadlines for the State to
give notice of its intention to seek the death penalty,
appointment of two properly certified members of the
capital litigation trial bar to represent every indigent
capital defendant, authorization for discovery
depositions of witnesses, and requiring case
management conferences;
(4) imposition of standardized requirements for
disclosures concerning DNA evidence;
(5) extension of criminal discovery rules to
sentencing hearings in capital cases; and
(6) revision of the Rules of Professional Conduct to
specify that Athe duty of a public prosecutor or other
government lawyer is to seek justice, not merely to
convict.@
The new measures enacted by the General Assembly and
by this court will be fully applicable to Richard Morris= case on
retrial. Our experience with these new measures is admittedly
limited, and we do not know yet whether they will be adequate
to remedy all of the problems that precipitated the overhaul of
our system of capital punishment. In my view, however, we
have no reason to doubt that they will be sufficient to redress
the problem that required us to set aside Morris= original
conviction and which led the Governor to commute his original
sentence.
As previously indicated, the fatal flaw in Morris= original trial
was that he did not receive effective assistance of counsel.
Ensuring the adequacy of representation is, however, one of
the cornerstones of the recent capital punishment reforms.
Under our new rules, no one who is not fully qualified and
-24-
experienced will be permitted to provide legal defense to Morris
or anyone who is being prosecuted for a capital offense. The
predicate for Morris= commutation having thus been addressed,
we have no more reason to bar the State from seeking the
death penalty when he is tried again than we would in any new
capital case coming up for trial for the first time.
Morris has raised various subsidiary arguments regarding
his future eligibility for the death penalty, but these are also
without merit. Morris asserts that the State should be precluded
from seeking a sentence of death because its conduct is
motivated by vindictiveness. The circuit court specifically
rejected this contention, however, and there is no basis in the
record to question its conclusion.
There is likewise no basis for Morris= argument that
subjecting him to the prospect of capital punishment on retrial
contravenes his right to due process of law. Indeed, it strikes
me as incongruous for Morris to suggest that the clemency
order somehow invested him with due process protections
where, as here, he did not petition for clemency himself and did
not consent to having a clemency petition filed on his behalf.
Finally, I cannot accept Morris= claim that imposition of the
death penalty again is precluded by statutory prohibitions
against imposing a more severe sentence after the original
sentence has been set aside on direct review or on collateral
attack. See 730 ILCS 5/5B5B4(a) (West 2004). Capital
punishment is not more serious than Morris= original sentence.
It is the same. Moreover, the original sentence was not set
aside on direct review or on collateral attack. It was overridden
by an act of executive clemency.
For the foregoing reasons, I respectfully dissent. The circuit
court erred in granting Morris= motion to bar the state from
seeking the death penalty on retrial. Its order should therefore
be reversed.
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