Constitutionality of HB 1764

November 7, 2017
To: Hon. Senator Hutchinson
Hon. Senator Cullerton

Re: Constitutionality of HB 1764

[I was asked by a proponent of HB 1764 to comment on its constitutionality. This was prepared when the matter was before the Senate’s Committee on criminal law.]

HB 1764 is constitutional. An issue has been raised of whether it violates the separation of powers doctrine in Article II of the Illinois Constitution of 1970. It does not. The pardon and commutation powers of the Governor are not infringed upon by the proposed modification of the Post-Conviction Act, 720 ILCS 5/122-1. The Governor’s powers of pardon and commutation (Article V Section 12) are not impeded by a statute which allows the courts, which have “jurisdiction of all justiciable matters” (Article VI Section 9) to correct their own errors. The Governor’s powers of Pardon and Commutation are not impeded, hindered, or altered. He may issue same at any time, irrespective of the passage of HB 1764 and unimpeded by it in any way.
Sentencing is the quintessential judicial function. Neither the legislature nor the Governor may impose a sentence. “It is, of course, indisputable that the power to impose a sentence is exclusively a power of the judiciary.” People v. Davis, 93 Ill. 2d 155, 161 (1982); People v. Phillips, 66 Ill. 2d 412, 415 (1977); People v. Montana, 380 Ill. 596, 608 (1942). There is no longer any question this includes both the power to sentence and to modify a sentence, century-old discarded law notwithstanding. The legislature can, under our system of checks and balances, write laws which restrict or enlarge the ability of the courts to modify sentences. These become unconstitutional only if they “unduly encroach” upon the ability of the courts to perform their judicial function. People v. Joseph, 131 Ill. 2d 36, 47 (1996)
People v Bainter, 126 Ill. 2d 292, 533 N.E.2d 1066 (1989) and People v. Reed & Turner, 177 Ill. 2d 389, 686 N.E.2d 584 (1997) plainly demonstrates the constitutionality of the proposed legislation. It shows how numerous times the interplay of legislation expanding and contracting the courts’ authority to modify sentences has been upheld against a claim of unconstitutionality.
The 30 day limitation on jurisdiction of the courts is not a matter of constitutional law at all. Bainter specifically held that the usual 30 day limitation on modification of a sentence is a feature of the common law from which Illinois and other U.S. jurisdictions derived their jurisprudence, and is not a constitutional requirement. Bainter lists numerous instances in which the expansion of the courts’ power to modify a sentence or restore jurisdiction subsequent to the 30 day period was upheld. Bainter notably reversed a lower court decision which held, erroneously, the 30 day period was a matter of constitutional law. This effectively once again overruled the century old opinion in People v. LaBuy, 285 Ill. 141 (1918), which held the courts had no authority to change a sentence even within 30 days, on separation of powers grounds.
Reed, supra upheld a requirement imposed by the legislature that a motion to reduce sentence must be filed in writing within 30 days of the original sentence or the defendant is barred from seeking a modification of his sentence. This again shows the courts have completely rejected the conclusion in LaBuy that a change in a sentence infringes upon the governor’s pardon and commutation powers. Reed enforced a law on changing such a sentence.
The prosecutor would not utter this position–that the courts cannot amend a sentence after finality–in the context of a successful Habeas Corpus Petition. “The only real remedy available in a federal habeas proceeding: the court can order the state to release the inmate. Typically, however, a conditional order will be issued, giving the state a fixed amount of time (e.g. 120 or 180 days) to do so unless the state corrects the error.” Everything You Ever Wanted to Know About Federal Habeas and Then Some, Frederika Sargent, Asst. Attorney General (Texas) May 28, 2014, see 28 U.S.C. A. 2254. Every time a federal habeas is ordered, the prosecutor’s office has preferred to hold the “final” order of the court can be changed, rather than allow the outright release the prisoner. The prosecutor cited People ex rel Madigan v. Snyder, which holds Habeas gives “the federal court…the power to release the prisoner. Indeed, it has no other power; it cannot revise the state court judgment…” The habeas “court may determine only whether there is an improper detention and, if so, order the release of the prisoner conditioned on the state’s opportunity to correct errors.” 39 CJS Habeas Corpus ss 372 (2003)” as quoted in People ex rel Madigan v. Snyder, 208 Ill. 2d 457, 470 (2004).
At the time of the enactment of the Illinois Constitution, 1970, the Post-Conviction Act allowed for a 20 year long statute of limitations. This 20 year limitation existed until 1984. See People v. Bates, 124 Ill. 2d 81 (1988) wherein the court discussed the 20 year period and held valid and enforced the newly legislatively enacted 10 year period, although it took away the court’s power to adjudicate a Post-Conviction Petition filed within the old 20 year period but not within the new 10 year period. Since a 20 year period existed, uncontested, at the time the Illinois Constitution of 1970 was enacted, and remained in effect for a decade and a half, it is clear that the current time frame, three years, is not a matter of constitutional law. The time frame which was restricted by the legislature can be restored, decreased, or increased by the legislature.
Even if this legislation, affecting about twenty inmates of our penitentiary population of about 43,000 (as of May 2017) were to be regarded as somehow an infringement of the Governor’s commutation power it would remain constitutional. There would be a mere overlap of authority wherein for a period, the courts could resentence an individual at the same time the Governor could if he chose commute the woman’s sentence. Inevitably there will be areas in which the separate spheres of government overlap, yet separation of powers is not violated. People v. Carlson, 116 Ill. 2d 186, 208 (1987). Therefore, the court’s power to sentence or resentence need not end before the Governor can commute a sentence or pardon the convicted. Indeed, no case has held since a single case from one hundred years ago that because the Governor’s absolute pardon power exists, the courts cannot reverse or resentence.
Two cases claimed to show the bill is unconstitutional do not do so. Neither Brundage v LaBuy, 285 Ill. 141, 144 (1918) nor People Ex Rel Madigan v Snyder, 208 Ill. 2d 457, 281 Ill. Dec 581, 804 N.E.2d 546 (2004) show any unconstitutionality of the statute.
The judicial power to sentence and re-sentence is a completely different thing from the Governor’s power to commute sentences. In People Ex Rel Madigan v Snyder the Illinois Supreme Court held that the Governor need not limit himself to commutations that strictly complied with the legislative enactments which set the manner of an application for a commutation. Article V Section 12 provides “The manner of applying [for a pardon or commutation] may be regulated by law.” The court held the Governor could issue commutations of sentences of prisoners who did not comply with the legislation enacted by this body: “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 powers to prevent or mitigate punishment by pardoning the defendant from the full extent of the punishment allowed by law.” People Ex Rel Madigan v Snyder, supra at page 477.
“Similarly, there is no separation of powers problem between the Governor and the judiciary.” People Ex Rel Madigan v Snyder, supra, at page 479. This was true even as to a group of defendants still awaiting a court’s determination of sentencing or resentencing, People Ex Rel Madigan v Snyder, at page 464-5. Clearly this case did not establish a constitutional prohibition against re-sentencing, nor did the court have to await or turn over sentencing to the Governor, awating his action. The Madigan court allowed a pardon even while sentencing was awaiting. That puts paid to any claim the overlap violates separation of powers. The overlap is allowed pursuant to Carlson, and to Madigan supra. Indeed, it was not disputed that as part of the judicial power, the court in People Ex Rel Madigan v Snyder had full authority to determine the validity of the Governor’s action. This is part of checks and balances. The fact the courts decided the authority of the Governor was in compliance with the law shows the courts can exercise jurisdiction even with respect to the commutation power.
Brundage is a century old case. Separation of powers still exists, but the separation of powers limitation it imposed on a change of a sentence within 30 days is long gone. Even the 30 day period is not a constitutional limitation on the power of the courts, as People v. Bainter demonstrated.
Corpus Juris Secundum, which ranks at the top of all written legal authority, shows the law is constitutional. CJS Constitutional Law ss279 states:

“The legislative, executive, and judicial branches of government may exercise only their own powers and may not usurp the powers of another coequal branch of government. Thus, unless one branch is usurping the power of another and coercively influencing the other, there is no violation of the separation-of-powers doctrine. In this connection, a usurpation of powers exists where there is a complete or significant interference by one department with the operation of another department.”
* * *
“In determining whether an act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the affected branch from accomplishing its constitutionally assigned functions. In determining whether a usurpation of powers exists, a court should consider: (1) the essential nature of the power being exercised; (2) the degree of control by one department over another; (3) the objective sought to be attained by that branch’s exercise of power; and (4) the practical result of the blending of powers as shown by actual experience over a period of time. In any event, in order to determine what one branch may do in seeking assitance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination.”

The analysis of the sentencing power shows (1) the essential nature of the power being exercised is and was judicial. The power to sentence and modify a sentence is judicial. The (2) degree of control of the judicial over the Governor’s pardon and clemency powers is none at all. His powers remains unaffected. The (3) objective is to correct an unknowing wrong of the judiciary by the judiciary. Certainly that is laudable, and is not an attack on the Governor’s powers. The (4) practical result of the interplay of the Governor’s powers of pardon and commutation with the post-conviction act, section 1401and habeas corpus has not been shown to have any harm on the executive department, and has been shown to be a useful tool to correct wrongs.

Accordingly, the proper analysis is to determine does HB 1764 prevent the Governor from issuing pardons or commutations. It does not. It hardly affects the Governor’s power at all. Regardless of the bill, the Governor can pardon or commute the sentence of anyone who has been convicted. There is no interference whatsoever. The practical effect of a successful application of a prisoner utilizing a post-conviction petition is the same as any other prisoner using a post-conviction petition, or habeas corpus, or a 1401 petition. These all have, for decades, been regarded by actual experience over time to work well with the Governor’s powers.

Regardless of HB 1764 being enacted into law, if the Governor chooses to pardon, or commute the sentence of any inmate, he may do so. The Governor may, regardless of this meritorious legislation, pardon any of the few persons affected. He may commute the sentence of any person affected by this legislation, without regard to it or any court action pursuant to it. If the courts should reduce a sentence of one or more persons pursuant to HB 1764, the Governor could choose to exercise his power to reduce it further, or do nothing, or issue a pardon. The only thing he cannot do, and which neither the courts nor legislature can do, is increase the sentence once it is imposed. The fact that the courts may issue a sentence within the guidelines of the legislation which is too short for the Governor to act following careful investigation and consideration of the individual’s merit is a feature of every misdemeanor sentence, and every shorter felony sentence. This is not unconstitutional, and does not infringe upon the Governor’s powers.
Respectfully submitted,

Barry M. Lewis
Attorney At Law
500 N. Michigan Ave. Suite 600
Chicago, IL 60611
[email protected]
Atty. No. 1646990

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