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Outraged prosecutors have begun trying to undo Illinois ex-Gov. George Ryan’s mass commutations which emptied the state’s death row. Defense lawyers say they are confident that the challenges won’t prevail, in part because they were rejected by the state supreme court last fall. On Jan. 10, nearly his last day in office, Ryan pardoned four men on death row. He subsequently granted clemency to 167 others. All but three had their sentences commuted to life in prison. The sentences of the others were commuted to 40 years, in keeping with that of their co-defendants. Ryan, who once supported the death penalty, declared a moratorium on executions in January 2000. In a speech explaining the commutations, he said he believed the legal process was filled with systemic failures and he was frustrated by the Illinois Legislature’s refusal to enact reforms. The Cook County state attorney’s office filed a petition on Jan. 14, seeking to void 10 of the 167 commutations. On Thursday, the same office filed a petition with the Illinois Supreme Court challenging thecommutations of another 13 inmates. And on Friday, the Will County state’s attorney filed a similar complaint about clemency granted to yet another inmate. State’s Attorney Richard Devine argued that because the 10 defendants’ death sentences have been vacated, Ryan’s “attempted ‘commutation’ of their sentences exceeds the scope of his constitutional authority to grant ‘reprieves, commutations and pardons, after conviction’ (Art. V, 12) and violates the constitutional mandate of separation of powers (Art. II, 1) by usurping the exclusive judicial function of imposing sentences.” Devine named the director of the Illinois Department of Corrections and other prison officials as respondents in the petition for a writ of prohibition or mandamus. People v. Snyder. The Illinois Department of Correction’s acting chief legal counsel, John Hosteni, said he was still evaluating a response to the petition but was seeking assistance from the attorney general. Charles Hoffman, an assistant state appellate defender who helped organize the commutation effort, defended the governor’s action as the only logical move. “If you find there is a design flaw in the engine of a jumbo jet, you don’t just fix it, you go back and fix all the ones that had a flawed part,” he says. Hoffman says the prosecutors’ efforts to go after a small group shows that the death penalty is unjustly applied. “Who lives and who dies has very little to do with the crime committed and more to do with the serendipity of the prosecution,” he says. PROSECUTORS ‘ON THIN ICE’ An attorney for two men named in the petition voiced skepticism about the strength of the claims. “Legally, they are on very thin ice,” says John Stainthorp of the People’s Law Office in Chicago. “There is a pretty well-established right of the governor to commute sentences after a guilt-innocence finding.” About 10 prosecutors spoke with one another on Jan. 15 about legal and media strategy. John Piland, president of the Illinois State’s Attorney’s Association, said prosecutors want to challenge the commutations in three areas. In addition to those whose sentences had been vacated at the time of the clemency, they are considering focusing on a group of prisoners who did not individually file for clemency. A third possibility is a challenge to the group as a whole, via a constitutional separation-of-powers claim. Piland says he expects the association executive board to act after a Jan. 23 meeting. Meanwhile, individual prosecutors may act. DuPage County State’s Attorney Joseph Birkett vowed to explore all legal avenues for overturning all of those whose sentences were commuted to life in prison. He strenuously emphasized his interest in the separation-of-powers approach. SEPARATION OF POWERS “We recognize the precedent that authorizes the governor to act in an extraordinary fashion in individual cases,” says Birkett. The Constitution mandates “that you respect the decisions made by the other bodies and the power that’s distributed to those different bodies is intended by our Constitution to be a guardian of the public against invasions by other branches,” he says. Several defense attorneys scoffed at the idea of a separation-of-powers argument. “It seems pretty clear to me, as a matter of Illinois constitutional law, which is the governing document, that the governor has broad and unlimited authority to exercise his executive clemency powers,” says Locke Bowman, director of the MacArthur Justice Center at the University of Chicago, which filed the group petitions. Defense lawyers also argued that the government had already made these arguments and failed. Kimball Anderson, a partner at Winston & Strawn of Chicago, defended Gov. Ryan on an earlier challenge before the Illinois Supreme Court brought by former Illinois Attorney General Jim Ryan. Ryan v. Ryan, No. 94-776. “There was briefing on the merits of the substantive arguments,” Anderson says. “After full briefing, the court issued an order [saying that] after due consideration the attorney general’s motion for leave to file the mandamus is denied.” Piland says the circumstances are now different because the governor has taken action. A statement from the Cook County state’s attorney’s office agrees, characterizing the supreme court’s action last fall as not definitive. Anderson also notes that, ironically, separation of powers was invoked by the governor in that action. “The separation-of-powers issue was briefed before the Supreme Court and we were arguing the separation-of-powers argument on behalf of the governor.” Daniel Kobil, a law professor at Capital University Law School in Columbus, Ohio, who has written on gubernatorial pardons, says he doubts that prosecutors will prevail because the governor has broad powers for issuing pardons. He says the issue has been considered by many courts. “The case closest on point is a case called Juan v. State of Texas, 485 S.W.2d 275 (1972),” he says. Kobil adds that it was noteworthy that prosecutors chose these cases because the courts had found such serious flaws that they vacated the sentence. “The state attorneys’ argument uses a technicality to try to turn the governor’s commutation power on its head and prevent it from operating in the cases where it’s most needed,” he says. On Jan. 15, the U.S. Supreme Court handed down a decision that could further muddy the waters on the fate of those seeking new trials or sentences among the 167 granted clemency. In a 5-4 vote, the Court said that the constitutional prohibition of double jeopardy does not protect a murder defendant from being sentence to death in a new trial after the first jury has deadlocked over the sentence. Sattazahn v. Pennsylvania, No. 01-7574. IMPACT IN ILLINOIS Some defense lawyers are nervous about the implications of that decision in Illinois and several say they expect prosecutors to try to apply it. State’s attorney’s association president Piland says the issue didn’t come up in the prosecutors’ meeting, although the subject of seeking death sentences again for those who’d been granted clemency but were seeking new trials or sentences had been discussed. Lawrence Marshall, legal director of the Center on Wrongful Convictions at the Northwestern University School of Law, dismissed the idea that prosecutors could re-seek the death penalty against those pardoned. “ Sattazahn has nothing to do with this,” he says. “Once commuted, the maximum penalty they’re exposed to is the penalty of life in prison. That’s not because of double jeopardy but the powers of commutation.” Associated Press reports contributed to this article.

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