Few Get Clemency in IL: HB 2373 to Rescue?

Seeking a Legislative Fix to Declining Clemency Rates

As long as Bruce Rauner is the governor in Illinois, is clemency still available to someone who has a criminal conviction that can’t be sealed? During his first two years in office, Governor Rauner has granted clemency to only 3.6% of clemency candidates. Governor Pat Quinn, by contrast, granted clemency to more than a third of hopeful candidates.

What is Clemency?

The authority to pardon (grant clemency) someone for a crime under state law belongs to the governor. In most states, a pardon restores rights taken away after following a criminal conviction - usually for a felony (e.g., right to vote, hold public office, own a gun). In Illinois, we are fortunate in that the right to vote is automatically reinstated after one is released from prison (no prison sentence, voting rights are never suspended). A pardon is an act of forgiveness, public recognition that someone is fully rehabilitated.

For anyone who has a criminal record, felony or misdemeanor, being able to expunge or seal (removing a criminal conviction from public view) can boost someone's chances of finding a job, obtaining a professional license, or renting an apartment. Today, many employers conduct criminal background checks. Can’t pass a background check? Don’t be surprised when the job offer disappears.

A Second Chance Denied

Last week one of my clients became the latest victim of Governor Rauner’s poison pen. I did not take the news well. I’ve always exercised great care in evaluating a potential client’s eligibility for clemency. This is the first client I’ve represented since 2012 to be denied clemency.

By the time my client petitioned for clemency, he had overcome many obstacles: a serious addiction to drugs and alcohol, never learning to read or write beyond the level of a second grader due to dyslexia (not diagnosed until fifth grade) and, in his late 40s, began the humbling process of working with a literacy tutor – something he continues to do. All four of my client’s non-violent felony convictions were a direct by-product of his rampant addiction. When he petitioned for clemency in 2016, my client had been crime free for 25 years.

A Process Shrouded in Secrecy

I will never learn why Governor Rauner denied my client’s request for clemency. The entire clemency process is shrouded in secrecy. The Illinois Prisoner Review Board, the agency responsible for administering the clemency process, submits a confidential recommendation to the Governor. The Illinois governor is not required to follow the Board’s recommendation.

When Governor Pat Quinn was still in office I learned that he used attorneys employed by the state to help him review the backlog of clemency petitions. Last year, I learned that Governor Rauner was using undergraduate college students to help him review clemency petitions – something I found profoundly disturbing.

After I got notice of my client's denial, I contacted an attorney who works for an agency that provides legal representation to many clemency applicants. I asked her if she’d figured out what motivated Governor Rauner to grant clemency. She responded simply: “There’s no rhyme or reason – people with one arrest, twenty years ago, no objections still get denied.”

House Bill 2373 To Expand Sealing Rules  

Currently, the Illinois General Assembly is considering legislation, House Bill 2373, that would significantly expand the list of felony offenses eligible to seal, thereby eliminating the need for clemency for those convicted of burglary, public indecency, manufacture or delivery of a controlled substance, to name a few crimes. Currently, only nine felony offenses are sealable.

Sealing a criminal record is a privilege, not a right. Only a judge can grant a petition to seal. That said I would rather take my chances before a judge than before the current governor. When a judge denies a petition to seal at least you receive an explanation for the denial and can ask the judge to reconsider his/her decision.

House Bill 2373 will not eliminate the need for clemency altogether. Individuals who have been convicted of a violent or sex crime, DUI, domestic battery, want to overcome a statutory bar to getting a professional or occupational license, or reinstate their F.O.I.D. card rights, will still need clemency.

A vote for HB 2373 would ensure that no matter who is governor, a viable path will exist for a substantial number of Illinois residents who deserve a second chance.

Postscript: A different version of this blog was published in the Chicago Sun-Times on May, 12 2017. http://chicago.suntimes.com/columnists/a-true-test-of-our-belief-in-rehabilitation-for-ex-offenders/