People v. Morris

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.

-22-

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

-23-

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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