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* More background is here if you need it, but here’s WBEZ last week…
Cook County State’s Attorney Kim Foxx will start asking judges to give early release to some long-serving inmates sent to prison by former administrations under a new resentencing initiative.
The state’s attorney’s office this week filed three resentencing motions, with two more planned for later in the month. Advocates said the hearings, expected next week, will make Cook County the first jurisdiction in Illinois to take advantage of a new state law that empowers prosecutors to identify prisoners whose sentence “no longer advances the interests of justice.”
* Statutory authority is from Section 725 ILCS 5/123 - Motion to resentence by the People…
(a) The purpose of sentencing is to advance public safety through punishment, rehabilitation, and restorative justice. By providing a means to reevaluate a sentence after some time has passed, the General Assembly intends to provide the State’s Attorney and the court with another tool to ensure that these purposes are achieved.
(b) At any time upon the recommendation of the State’s Attorney of the county in which the defendant was sentenced, the State’s Attorney may petition the sentencing court or the sentencing court’s successor to resentence the offender if the original sentence no longer advances the interests of justice. The sentencing court or the sentencing court’s successor may resentence the offender if it finds that the original sentence no longer advances the interests of justice.
(c) Upon the receipt of a petition for resentencing, the court may resentence the defendant in the same manner as if the offender had not previously been sentenced; however, the new sentence, if any, may not be greater than the initial sentence.
(d) The court may 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. Credit shall be given for time served.
(e) Victims shall be afforded all rights as outlined in the Rights of Crime Victims and Witnesses Act.
(f) A resentencing under this Section shall not reopen the defendant’s conviction to challenges that would otherwise be barred.
(g) 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.
* Excerpt from an op-ed by Alan Spellberg, who left the Cook County State’s Attorney’s Office last year...
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. […]
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)).
* The argument surfaced in a Cook County courtroom yesterday when SA Foxx’s prosecutors presented their first resentencing case…
“It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” [Cook County Associate Judge Stanley Sacks] said. “… Isn’t that something for the governor to do?”
“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained that the new law simply “revest(s) jurisdiction” back to the courts so a judge can consider a new sentence.
The effort is also a “re-entry initiative,” Adduci said in court. Prosecutors have identified people who could help them understand the challenges they face upon release from prison; Miles has agreed to collaborate in that effort, and prosecutors have petitioned for his resentencing in part as an incentive for that cooperation, she said.
“We’re trying to improve the fairness of the system,” Adduci said in court. Miles’s sentence was fair at the time Sacks handed it down, she said, but “people change, circumstances change.”
“The question is, has the person been rehabilitated, and can the person help us understand the concept of re-entry … help us understand what people need when they re-enter society,” she said.
“I’m not a social worker,” Sacks said. “All I know is, he commits burglaries … oh, he’s changed in custody? We’ll see.”
* This is also an interesting point made by the Sun-Times…
Foxx argued resentencing inmates would address “the fact that many Black and Brown people are still incarcerated today under failed policies of the past, even though they have been rehabilitated and pose little threat to public safety,” and save the state money that could be used elsewhere.
But none of the three men prosecutors have motioned for resentencing are expected to be incarcerated past next year. […]
Prosecutors actually had to withdraw one of the three motions Thursday at a different hearing because the defendant will likely be released before the judge would make a ruling.
Assistant State’s Attorney Nancy Adduci told Judge Timothy Joyce that prosecutors had since received “new information” that Roland Reyes was expected to get out of prison as early as next week after serving his full sentence for an aggravated robbery conviction.
She’s causing all this uproar over three people who are getting out soon anyway?
*** UPDATE 1 *** Foxx is getting plenty of attention, but a white, tough on crime state’s attorney in Will County actually brought the first such case and almost nobody has noticed…
Cole, 38, is the first person in Illinois to have his prison sentence reconsidered in part with new powers granted to prosecutors under SB2129 — an amendment to the state’s criminal code that Gov. J.B. Pritzker signed into law last summer. It allows prosecutors to ask judges to revise sentences when “the original sentence no longer advances the interests of justice.” […]
Still, the law is being cited for the first time, in Cole’s case, by Will County State’s Attorney James Glasgow — a seven-term incumbent Democrat with a tough-on-crime reputation.
In 2003, a jury convicted Cole of first-degree murder and attempted murder stemming from a shooting at a busy intersection in Joliet, just 6 miles from Stateville’s doors, according to court records. Cole was driving a car with another man, Travaris Guy, in the passenger seat. They were stopped at a traffic light next to another vehicle when Guy shot at the people inside — killing 39-year-old David Woods and wounding his 19-year-old daughter, according to court records. […]
“Guy’s testimony established that he acted with an unreasonable belief of self-defense so that the shooting was not a first-degree murder,” Glasgow wrote in his motion asking Will County Judge Daniel Kennedy to recall Cole’s case. “Obviously, this evidence was not available to Cole during his trial, and the result is that Cole is serving a sentence for a first degree murder that never occurred.” […]
The court hearing in late February that cut Cole’s sentence by two-thirds was brief. Cole spoke tearfully about his past and the future.
*** UPDATE 2 *** From Restore Justice…
Our view is that the Resentencing Initiative codified already existing revestment powers.
The group sent along a link to this story from 2019, before the bill was passed and signed into law…
The first inmate released based on a petition from the Illinois Prison Project walked out of the Lake County jail Wednesday after a judge agreed to shave the end of his sentence, due in part to the inmate’s failing health.
Larry Hayes, now 82, has early dementia and worsening glaucoma, according to family members and Jennifer Soble, executive director of the Chicago-based Illinois Prison Project. […]
Michael Melius, chief of prosecution protocol and conviction review for the Lake County State’s Attorney’s Office, said that after Soble petitioned for Hayes’ release, the case was reviewed by State’s Attorney Michael Nerheim, who then asked Melius to review it as well.
Melius said it was decided not to object to the petition in the case of Hayes due to his age, physical status and the fact that he had served the vast majority of his sentence, factoring in the time off for good behavior. He had been scheduled for release in December 2020.
“It wasn’t like someone just saying, ‘I’m old and I want to get out,’” Melius said, in stressing such releases are not routine.
posted by Rich Miller
Friday, Mar 25, 22 @ 9:09 am
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==uproar over three people who are getting out soon anyway?==
Easy for us to say looking from the outside
Comment by Thanos Friday, Mar 25, 22 @ 9:12 am
== She’s causing all this uproar over three people who are getting out soon anyway? ==
Tell me you’ve never had a love one incarcerated without telling me you’ve never had a loved one incarcerated.
Comment by Anon Friday, Mar 25, 22 @ 9:13 am
If you are supportive of defunding the police, this adds to the narrative.
Comment by Downstate Friday, Mar 25, 22 @ 9:18 am
==but that’s mercy. There’s also justice==
Granting clemency is a form of justice. It’s what the governor does to correct an unjust sentence.
Comment by City Zen Friday, Mar 25, 22 @ 9:21 am
===She’s causing all this uproar over three people who are getting out soon anyway?===
Foxx has lost her bearings and her vision to a bigger picture and a small ball idea… and it’s picking fights for what measures out to be, at the core, three people getting out soon anyway.
Foxx is not being served well to understanding where the politics and the actual job intersect and make both nearly impossible.
Either it’s real bad counsel, or she’s her own counsel no matter the advice.
Comment by Oswego Willy Friday, Mar 25, 22 @ 9:24 am
===Tell me you’ve never had a love one incarcerated===
Not true. Bite me.
Comment by Rich Miller Friday, Mar 25, 22 @ 9:24 am
Are people seriously suggesting that the Illinois General Assembly does not have the authority to determine if/when/how trial courts can be revested with jurisdiction to review sentences and convictions?
Comment by Reasonable Man Friday, Mar 25, 22 @ 9:28 am
@ Reasonable Man
Not “people.” The former head of appeals for the Cook County State’s Attorney’s Office.
Comment by DS Friday, Mar 25, 22 @ 9:31 am
== She’s causing all this uproar ==
She’s not causing the uproar. The reaction by others to what she is doing is the uproar.
From her point of view, she likely looked at the *least* impactful cases to do first. Least impactful on paper, that is. From a process perspective, this was the correct choice.
From a procedural perspective, she made a poor choice in picking people who did not request anything first. Part of her procedure should have been to first educate those incarcerated about this law, and allow those who it would impact to petition accordingly. Skipping that step is a large part in contributing to the uproar, and that can be fixed.
Her implementation is currently flawed, but it can be improved if the faults in both the process and procedure are identified, addressed, and implemented in the future.
Comment by TheInvisibleMan Friday, Mar 25, 22 @ 9:33 am
The way in which the CCSA has worked towards, and ultimately implemented, necessary reforms will unfortunately set such reform movement back 15-20 years.
Comment by Ogden Friday, Mar 25, 22 @ 9:34 am
===She’s not causing the uproar===
lol
Coulda fooled me.
Comment by Rich Miller Friday, Mar 25, 22 @ 9:35 am
If the concern is a constitutional challenge cases may be picked to test the constitutional challenge based off of the individual merits of those cases presenting fewer issues to argue against the ability or authority for a prosecutor to have the authority to do what they’re doing. I’ll withhold my political opinions on this until the constitutionality is settled since that is an entirely different arena bound by completely different rules and traditions.
Comment by Candy Dogood Friday, Mar 25, 22 @ 9:36 am
== Are people seriously suggesting that the Illinois General Assembly does not have the authority==
When the power to grant clemency and pardon rests exclusively with the Executive branch under the Constitution, yes people will raise that argument. It’s an interesting argument.
Comment by fs Friday, Mar 25, 22 @ 9:38 am
cover with her voters over not prosecuting the police recently. she was right not to prosecute, but since she took a very long time to decide, and that was the criticism of Alvarez who DID prosecute, this action is timed cynically by Foxx. meanwhile, how is that ARDC review going? even though it is unlikely to result in even a suspension there will probably be words in review that are unlike anything we have seen for an elected State’s Attorney let alone an ASA currently in service. Foxx is a shambles.
Comment by Amalia Friday, Mar 25, 22 @ 9:38 am
The CCSAO has a credibility issue right now and it’s on Kim Foxx to right the ship. She doesn’t have to change her philosophy or become “tough on crime” (even if I think she should get tougher), but she needs to improve morale in the office and have a clear vision and strategy on violent crime.
Comment by Chicagonk Friday, Mar 25, 22 @ 9:39 am
== The former head of appeals for the Cook County State’s Attorney’s Office ==
Big whoop. This logical fallacy is called the ‘appeal to authority’. He is wrong. Certainly not the first time.
Comment by Reasonable Man Friday, Mar 25, 22 @ 9:46 am
-She’s not causing the uproar-
Kim Foxx shows her utter contempt for the judges who sentenced these individuals.
Comment by Steve Friday, Mar 25, 22 @ 9:52 am
@fs
Does that mean that all of our post-conviction statutes and caselaw are invalid as well, because the Governor supposedly has the exclusive authority to revisit convictions/sentences after direct review is exhausted. I’m sure Alan Spellberg thinks so. It was his job to make those kind of arguments for an entire career.
Comment by Reasonable Man Friday, Mar 25, 22 @ 9:53 am
Judge Sacks is, uh, not the strongest judge in the Circuit Court. We’ll see what other judges have to say as this issue makes its way to the Illinois Supreme Court.
Comment by Keyrock Friday, Mar 25, 22 @ 9:54 am
The constitutionality question is an interesting one. I’ll be interested to see how the courts rule if actually brought forward in a case.
That said, while SA Foxx’s rollout may deserve some skepticism, I don’t think it should mean we decry the whole initiative. If you believe in restorative justice, that naturally requires you to look at past, unjust sentences. Politically speaking, no Governor is going to commute or pardon the actual number of incarcerated people who have already served too long a sentence. Allowing SA’s to petition the courts can diffuse the issue more locally and potentially stave off some of the heat. Foxx is just the definition of “under a microscope” so anything she does will be hyper-scruitinized.
Comment by Panther Pride Friday, Mar 25, 22 @ 9:55 am
SA Fox is “the gift that keeps on giving” for Dems in November..
Comment by Henry Friday, Mar 25, 22 @ 9:56 am
== Does that mean that all of our post-conviction statutes and caselaw are invalid as well, because the Governor supposedly has the exclusive authority to revisit convictions/sentences after direct review is exhausted. I’m sure Alan Spellberg thinks so. It was his job to make those kind of arguments for an entire career.==
I’m not saying it’s a winning argument, but it’s a good argument for the Courts to consider. Nothing in the statute allows the case to be reopened for any purpose other than to consider whether a sentence should be reduced, based on factors and arguments that are traditionally made l, by the parties who are allowed under clemency to make them, when seeking relief from the Governor under powers the Constitution grants to the Executive branch. By that measure, direct review of the merits of the case have been exhausted, and all you are doing is granting sentencing relief outside of the Executive branch. It will be interesting to see what the Courts say.
Comment by fs Friday, Mar 25, 22 @ 10:06 am
== Coulda fooled me. ==
I don’t see any uproar in the reporting of the events taking place in the courtroom.
I do see a lot of uproar in certain suburbs and in central Illinois.
Comment by TheInvisibleMan Friday, Mar 25, 22 @ 10:09 am
=== I do see a lot of uproar in certain suburbs and in central Illinois.===
Just recently in a Capitol Fax post….
===…internal poll conducted for Senate Democrats indicated that crime falls below taxes and other concerns among suburban voters===
Foxx, as CCSA, which includes Chicago, if you want the argument to be about “the city”, that might be more true, but in a political reality Foxx finds herself in a self-made quagmire as Rich then points out Will County.
Maybe Foxx has personified this so much it’s lost to what is the intent, and focusing on three case, is this worth the political capital pointedly specific to these cases?
Comment by Oswego Willy Friday, Mar 25, 22 @ 10:16 am
Good on the Will County prosecutor for bringing that petition. No idea if the law is unconstitutional but that seems like the kind of case this law should apply to if it is.
Comment by ChicagoBars Friday, Mar 25, 22 @ 10:18 am
At least some Assistant Public Defenders in Cook County (with whom I have spoken) think Ms. Foxx has chosen these particular cases (and the Judge who will decide on her petition) because she knows it will be denied and she hopes to parade it up the ladder to grandstand even more.
I, personally, don’t think she is that clever or thoughtful, but it seems nearly everyone in the know thinks this has nothing to do with justice.
Comment by AlfondoGonz Friday, Mar 25, 22 @ 10:19 am
===crime falls below taxes===
Still high, tho.
Comment by Rich Miller Friday, Mar 25, 22 @ 10:20 am
The interesting question for me is who would have standing to challenge the constitutionality of the statute. Certainly, the governor might, but I don’t see Pritzker bringing the action, especially in light of his not vetoing it.
Comment by Tominchicago Friday, Mar 25, 22 @ 10:24 am
====Good on the Will County prosecutor for bringing that petition. No idea if the law is unconstitutional but that seems like the kind of case this law should apply to if it is.=====
I agree with ChicagoBars on this. Also, my non lawyer opinion looks at it this way. This is new evidence that was not available at the time of his trial. So the defendant could ask for a new trial. Gets a new trial, spend more time and more resources to eventually get a reduced sentence. Or go through this process which uses less time and less resources and it comes to the same conclusion.
Comment by Been There Friday, Mar 25, 22 @ 10:33 am
===Still high, tho.===
True, and not much good is found with crime or the issues above crime for incumbents or Democrats.
Does the personification of Foxx in this instance make the angst greater?
Does the lower profile of Glasgow (comparative to Foxx in this instance) allow less (or none) scrutiny?
Comment by Oswego Willy Friday, Mar 25, 22 @ 10:34 am
- Tell me you’ve never had a love one incarcerated without telling me you’ve never had a loved one incarcerated. -
Nope. It’s actually pretty easy to go your entire life without spending a single day in the slammer.
Foxx isn’t concerned about justice, it’s all about doing as much damage to the system as she can while she can.
Comment by Prairie dewg Friday, Mar 25, 22 @ 10:53 am
“At any time upon the recommendation of the State’s Attorney of the county in which the defendant was sentenced…” I’m always amazed at how Illinois is stuck in the past like the former Confederate states, where each county is like it’s own little fiefdom. Outside of Cook county, there are 101 other counties, the majority of which are inbred, where the State’s Attorneys, judges, and prosecutors are literally married and in bed together. Can anyone seriously expect these hicks to question themselves?
The legislature could place this authority in the Attorney General’s office, if we had a functioning AG in Illinois.
Comment by Payback Friday, Mar 25, 22 @ 10:59 am
=Does that mean that all of our post-conviction statutes and caselaw are invalid as well, because the Governor supposedly has the exclusive authority to revisit convictions/sentences after direct review is exhausted. =
Don’t argue like a child.
Except that’s the point fs. The court hadn’t lost jurisdiction. Don’t be dense. You’re no Alan Spellberg, pal. He’s testified numerous times in committee. Go ask around about his reputation. It’s sterling. I can guess what fs stands for.
Comment by Miso Friday, Mar 25, 22 @ 11:02 am
Dear Miso, that wasn’t me that you quoted.
Comment by fs Friday, Mar 25, 22 @ 11:12 am
==- Reasonable Man - Friday, Mar 25, 22 @ 9:46 am:==
He’s also writing an op-ed on a website that only has one point of view and tolerates no dissenters. If his analysis said the opposite, they’d never print it.
Comment by Google Is Your Friend Friday, Mar 25, 22 @ 11:17 am
If memory serves, Alan Spellberg used to regularly make the argument in Springfield, on behalf of his former employer the Cook County State’s Attorney, that the constitution allows a court to resentence someone if both parties (the prosecutor and the individual) agree. Now he seems to be moving the goalposts.
Comment by charles in charge Friday, Mar 25, 22 @ 11:19 am
this is a re-sentencing statute, correct? Yet none of the cases Spellberg relies on to attack it involved re-sentencing. That’s a tell. Also, does anyone believe that “the judicial process ends at sentencing”? Think about it.
Comment by pc Friday, Mar 25, 22 @ 11:44 am
Going to be fascinating to see Foxx’s job prospects once she’s out of office. Then maybe she’ll realize how disconnected from reality she really is.
Comment by Almost the Weekend Friday, Mar 25, 22 @ 12:22 pm
“Dear Miso, that wasn’t me that you quoted”
Details.
– MrJM
Comment by MisterJayEm Friday, Mar 25, 22 @ 12:29 pm
The legislature previously enacted a statute, 735 ILCS 5/2-1401(b-5, b-10) that allows a defendant to seek sentencing relief if she can show that her participation in the offense was the result of domestic violence or postpartum depression. To my knowledge no one questioned the constitutionality of this important statute. Yet, now it may be blown up as collateral damage in a political fight.
Before we accept Alan Spellberg’s word on the powers of the legislature, can we step back and ask whether he is an objective, disinterested party to this conversation? Is he motivated by a genuine concern for the separation of powers or is it possible his motivation is more personal, given that he previously worked for Kim Foxx and left his position because of his disagreements with her?
Comment by pc Friday, Mar 25, 22 @ 12:30 pm
anything good that Glasgow does seems to get buried because the Democratic Party is too stupid to figure out that he is a great guy. or they seem to have wanted him out of the way of others. too bad.
Comment by Amalia Friday, Mar 25, 22 @ 12:31 pm
*How
Comment by A Guy Friday, Mar 25, 22 @ 12:42 pm
==Before we accept Alan Spellberg’s word on the powers of the legislature, can we step back and ask whether he is an objective, disinterested party to this conversation? Is he motivated by a genuine concern for the separation of powers or is it possible his motivation is more personal, given that he previously worked for Kim Foxx and left his position because of his disagreements with her?==
ding ding ding
Comment by charles in charge Friday, Mar 25, 22 @ 12:52 pm
This statute is comically vague, and I hope the Supreme Court strikes it down. The “interests of justice” for almost all lawyers is just “whatever gives me money, status, and power.”
Comment by Three Dimensional Checkers Friday, Mar 25, 22 @ 1:21 pm