Illinois' huge prison population is a problem Governor Rauner wants to solve. His first step--setting up a commission to find ways the legislature can change state laws to reduce the number of prisoners--was a good start. That commission is expected to release its final report in early 2016.
But the Governor can, and should, do more. He can single-handedly reduce the state's prison population with a stroke of his pen, using a power that belongs only to him, as the state's chief executive: clemency.
On February 11, 2015, the newly-inaugurated Governor acted boldly, issuing an executive order taking on the costly problem of mass incarceration. Rauner's Executive Order 15-14 laid out that problem: in the past 40 years, the State's crime rate has gone down 20% but its prison population has soared 700%.
Rauner's order established a Commission on Criminal Justice and Sentencing Reform whose job includes recommending "amendments to state laws that will reduce the State's prison population by 25% by 2025."
Asking his commission to find ways for lawmakers to cut the State's number of prisoners was one step toward reducing the state's prison population by a quarter in 10 years. But Rauner shouldn't rely on legislators alone to reach that goal. He could achieve it himself with an act he can carry out which no court can overturn, no legislature can undo: commuting the sentences of some state prisoners.
Commutations don't pardon criminals for their crimes. They don't say to a prisoner, "We are letting you go; it's as if you never committed the crime for which you are incarcerated."
Commutations mean that the prisoner is guilty of the crime for which he or she was convicted. The prisoner's conviction remains on his or her record. The sentence is merely shortened, to something less than the original amount of time given.
Governor Rauner alone has the power to commute sentences in Illinois. It's there in Article V, Section 12 of the Illinois Constitution: "The Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper."
That's it. No limits on what type of crimes or which prisoners can be considered for clemency. The Governor even has a body in place whose job includes recommending candidates for clemency to him: the Illinois Prisoner Review Board (PRB).
The PRB could screen applicants seeking clemency--looking for documented criteria such as rehabilitation, good behavior while in prison, a solid plan for re-entry into society, an absence of gang ties--and recommend those applicants to the Governor for consideration. A similar effort is now underway on the federal level, for federal prisoners seeking commutation of their sentences from President Obama. The President, who has also expressed concern about mass incarceration, has been steadily granting increasing numbers of petitions for clemency in his second term in office.
Why would the Governor not do this? Political risk, for one. Governors have sometimes been loathe to let people out of prison early, for fear that a released prisoner will commit a new crime. (Remember Willie Horton?)
But that political risk is spread when recommendations come from another source which stringently reviews prisoner petitions. Too, it would be unfair for Rauner to place all the political risk of letting prisoners out early on legislators; he should bear some himself. To do his own part in reducing the state's prison population would also be to act with the boldness he has shown on other issues. Gov. Rauner could proudly claim he is no Rod Blagojevich, who, in his six years as Governor of Illinois largely shirked his constitutional duty to act on clemency petitions.
Commuting sentences and issuing pardons has, in our modern era, become something Governors and Presidents often do only on the way out the door as they leave office, as if they are skulking and ashamed. The mercy of clemency is something enshrined in our most precious founding document: our Constitution. The exercise of clemency should be robust, unashamed and regular.
Governor Rauner should boldly use the power to help achieve the worthy goal he has set: to solve the fiscal and moral problem of mass incarceration in Illinois.