‘Resentencing’ law that could free serial offenders early is unconstitutional, 27-year veteran prosecutor says. Here’s why.

Prosecutors from the office of Cook County State’s Attorney Kim Foxx will be in court this week to try to win the early release of three convicted felons under a newly-enacted “resentencing” law.

Her selection of a convicted violent home invader and an aggravated robber — both of whom had violent criminal records — along with a serial burglar as the first three convicts to win her attention was not well-received by Gov. JB Pritzker. His spokesperson on Monday said he “hoped prosecutors would’ve first prioritized those who committed non-violent offenses.”

There may be another problem with the “resentencing” law. It might be unconstitutional.

VIPs, including Cook County Chief Judge Timothy Evans (left), Cook County State’s Attorney Kim Foxx (second from left), and Gov. JB Pritzker (center), celebrate the signing of the state’s resentencing law. | SAKimFoxx on Twitter

That’s the word from Alan Spellberg, who resigned last May after serving nearly 27 years at the Cook County State’s Attorney’s Office. He spent the last 20 years supervising complex appellate litigation and criminal appeals. And he famously wrote a memo in 2019 that warned Foxx she had not followed the state’s recusal procedures in the Jussie Smollett case. You know how that went.

Today, we are publishing a letter from Spellberg that lays out his legal opinion of the “resentencing” law. His letter, posted below, notes that the judges who will hear resentencing arguments this week are under no obligation to grant Foxx’s requests.

Why does Spellberg think the law is unconstitutional? Because the Illinois State Constitution gives the power to pardon, commute, and modify lawful sentences to only one person: the governor. And the legislature has no constitutional authority to transfer that power to a judge.

In fact, Spellberg says, Illinois already has a well-established and constitutional route for seeking early release for inmates that Foxx or anyone else believes have been rehabilitated. Those clemency requests go through the Prisoner Review Board to the governor.

Here is Spellberg’s letter:

Although it has been almost a year since I left the Cook County State’s Attorney’s Office and I am now enjoying retirement, I still get the occasional legal question from my friends. Ever since Kim Foxx announced her new resentencing initiative last week, I have received numerous calls and emails from both current and former prosecutors, all wondering how she can resentence defendants who were lawfully sentenced long ago. What I have told them all is that although she is filing petitions pursuant to a recently enacted statute, circuit court judges are not obligated in any way to grant her requests as the statute makes clear that the ultimate decision is solely within the judge’s discretion. Moreover, I told them that I believe the judges of the Circuit Court of Cook County should routinely deny these petitions because, in my opinion, the statute is unconstitutional as it clearly violates the separation of powers doctrine. Since there was so much interest, I decided to fully explain my reasoning. I am grateful to CWB Chicago, a news outlet which is highly respected and widely followed by those of us who care about the Cook County criminal justice system, for allowing me to post this here.

First, the statute (725 ILCS 5/123, which is entitled “Motion to resentence by the People”) authorizes the State’s Attorney to file a petition seeking a new sentencing hearing because she believes that the defendant’s “original sentence no longer advances the interests of justice.” The filing of such a petition, which can be done “at any time,” is intended to revest the court with jurisdiction, but mere filing is insufficient to trigger a new sentencing hearing. Instead, the State’s Attorney bears the burden of persuading the judge that the defendant should be resentenced because his conduct since the original sentence was imposed indicates that he has been sufficiently rehabilitated. Specifically, while the statute makes no mention of the criminal conduct underlying the conviction or any prior criminal history by the defendant, it directs judges to “consider postconviction factors, including, but not limited to, the inmate’s disciplinary record and record of rehabilitation while incarcerated; evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate’s risk for future violence; and evidence that reflects changed circumstances since the inmate’s original sentencing such that the inmate’s continued incarceration no longer serves the interests of justice.” After considering all these factors, the court “may resentence the offender if it finds that the original sentence no longer advances the interests of justice.” However, “the new sentence, if any, may not be greater than the initial sentence.”

By using “may” instead of “shall,” the statute makes clear that any decision to grant a petition and order resentencing is wholly discretionary. Thus, if a judge disagrees with Ms. Foxx (or any other State’s Attorney who files a petition for resentencing under this statute) and concludes that the original sentence continues to advance the interests of justice, he or she should deny the petition. Moreover, such a ruling will almost certainly be affirmed on appeal as Illinois law provides that “an abuse of discretion occurs only where the trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with it.” People v. King, 2020 IL 123926, ¶ 35.

More importantly however, I believe that judges should deny the petitions and refuse to order resentencing pursuant to the statute because it violates the separation of powers as it improperly delegates the Governor’s exclusive clemency authority to the judiciary. Article II, section 1, of the Illinois Constitution provides that “[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” Furthermore, Article V, section 12 provides that “[t]he Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by law.” In construing these provisions, the Illinois Supreme Court has consistently and repeatedly held for nearly 130 years that judges improperly encroach upon the Governor’s exclusive authority whenever they attempt to reduce a convicted defendant’s lawfully imposed sentence based upon post-conviction behavior and circumstances.

Specifically, in People ex rel. Smith v. Allen, 155 Ill. 61, 64 (1895), the Court held that a trial judge improperly encroached upon the Governor’s exclusive pardoning authority by indefinitely suspending the sentence of a defendant who had pled guilty, because he intended “to prevent the infliction of punishment after a legal conviction.” Similarly, in People ex rel. Crowe v. Fisher, 303 Ill. 430, 433-34 (1922), the Court held that a trial judge had no authority to release a lawfully-convicted 17 year old offender because “[t]he law of this State vests the authority to pardon or parole in another department of the government and the judiciary have no right to usurp this power.” (Emphasis added). In People ex rel. Barrett v. Crowe, 387 Ill. 53, 56 (1944), the Supreme Court ruled that the circuit court judge improperly infringed upon the exclusive clemency authority when it ordered the defendant released from prison because “those officials, having authority so to do, [had not] abbreviated his sentence or given him a final discharge,” and in People ex rel. Castle v. Spivey, 10 Ill. 2d 586, 594-95 (1957), the Court reversed an order releasing a lawfully convicted defendant based on “equitable considerations” and bluntly declared “[t]he exercise of clemency is an executive, not a judicial function.”

More recently, the Illinois Supreme Court stated in People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 472 (2004), that “[o]ur constitution confers the pardoning power upon the executive branch of the State government, and the Governor alone can prevent the infliction of punishment after a legal conviction.” (Emphasis added). Likewise, in People v. Howard, 363 Ill. App. 3d 741 (1st Dist. 2006), the Appellate Court held that the ability to consider a defendant’s post-conviction circumstances as a basis for reducing a valid sentence falls exclusively within the Governor’s clemency power and is beyond the authority of the judiciary. Id. at 751-52. The Howard court explained that “‘[t]o hold *** that the court has power to amend a [valid] sentence after the prisoner has served a part of it would infringe upon the exclusive power of the governor under the Constitution to commute sentence’” (Id. at 751 (quoting People v. Fox, 312 Mich. 577, 581-82, 20 N.W.2d 732, 733 (1945)), because “‘[t]he judicial process ends at sentencing, at which point the executive branch of government takes over and the defendant is directed to the correctional and rehabilitative process. . . . The judiciary phase of the criminal process–imposing a penalty–is complete’”). Id. at 752 (quoting State v. Stenklyft, 281 Wis. 2d 484, 544, 697 N.W.2d 769, 798 (2005)).

Based upon this clear caselaw, which is necessarily binding on all circuit court judges across the State, there is no question that consideration of a defendant’s post-conviction behavior and possible rehabilitation while imprisoned is outside the judiciary’s sphere of authority and instead rests solely within the Governor’s exclusive clemency power. Moreover, the General Assembly cannot simply confer that power upon the judiciary without violating the constitutionally-mandated separation of powers. See Murneigh v. Gainer, 177 Ill.2d 287, 307-08 (1997) (holding that statutes which “assign[ ] nonjudicial tasks to the courts of Illinois” violate Article II, section 1 of the Illinois Constitution). That is precisely what the resentencing statute purports to do; it assigns the nonjudicial task of considering a lawfully-convicted and properly-sentenced defendant’s post-conviction behavior to determine if his sentence should be reduced. The statute is clearly unconstitutional.

The fact that Governor Pritzker signed the legislation, thereby allowing it to become law is irrelevant. Even if he personally has no concerns about allowing the judiciary to encroach upon his exclusive clemency authority (although there is no indication in the legislative history that anyone ever brought up the separation of powers question), he cannot delegate those powers to the courts. Also, he cannot interfere with his successors’ authority by allowing other branches to grant clemency.

Although the statute provides that “Nothing in this Section shall be construed to limit the power of the Governor under the Constitution to grant a reprieve, commutation of sentence, or pardon,” this language does not solve the separation of powers problem. The concern here is not that the Governor has been restricted from exercising his clemency authority in any way, but that another branch of government, the judiciary, has been authorized to also grant clemency to lawfully convicted defendants. But, because it is beyond any dispute that our constitution places such authority “exclusively” with the Governor, it is obvious that the statute is unconstitutional.

Finally, I do not disagree with Ms. Foxx that where a lawfully-convicted defendant has truly demonstrated contrition and rehabilitation, clemency and early release may be warranted. My concern here is simply with the appropriate forum for hearing such claims. Rather than asking the courts to make such determinations, Ms. Foxx could seek relief on behalf of those defendants before the Prisoner Review Board, the State agency which is specifically authorized to consider an imprisoned defendant’s rehabilitation and the risk to public safety posed by early release and to then make appropriate recommendations for executive clemency to the Governor. 730 ILCS 5/3-3-1. Although implementing such a procedure may prove difficult for Ms. Foxx as she publicly stated last year that the Cook County State’s Attorney’s Office would no longer make recommendations in response to parole applications since “prosecutors aren’t in the best position to judge inmates’ fitness for parole. Prosecutors are experts in the facts of the crimes but not in the details of the inmates’ lives after going to prison.” Following such a process would necessarily avoid all the constitutional concerns presented by the resentencing statute.

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CWBChicago was created in 2013 by five residents of Wrigleyville and Boystown who had grown disheartened with inaccurate information that was being provided at local Community Policing (CAPS) meetings. Our coverage area has expanded since then to cover Lincoln Park, River North, The Loop, Uptown, and other North Side Areas. But our mission remains unchanged: To provide original public safety reporting with better context and greater detail than mainstream media outlets. Our editorial email address is news@cwbchicago.com