My Guess Is that Daniel Biss Would Grant the Most Clemency Petitions, But it’s Very Hard to Tell

The most bittersweet aspect of my Record Clearing practice, by far, is the Petition for Executive Clemency. As I’ve previously explained, a Petition for Executive Clemency is a request of the governor to forgive or pardon a conviction, which pardon allows the petitioner to expunge a criminal record that otherwise doesn’t qualify.

I use the word bittersweet because working with Clemency clients is rewarding but heartbreaking. It’s rewarding because each one requires an in-depth interview of the client’s entire life’s story, and the weaving of that story into a narrative that presents a compelling case for clemency. People usually come to me with Clemency Petitions after a hard life that has been turned around, and these are people who care about their reputation in the community enough to do something about it. Getting to know them is almost always an honor and a privilege that leaves me with a deeper understanding of the every day faces of our criminal justice system.

On the other hand, they’re heartbreaking because, of all the record clearing petitions, they’re the most disappointing – especially in the years since Governor Rauner took office. Although he bragged late last year about “eliminating the backlog” of clemency petitions, he only granted 80 out of 2,333, which is about 3 percent. Rauner’s predecessor, Pat Quinn, granted more than a third of the nearly 5,000 cases that his office processed. That’s more than any other governor in history. Rod Blagojevich, in contrast, only acted on 1,000 of the 4,000 cases that were filed during his service as governor. He left a backlog of 3,000 for his successor to deal with.

The governor’s office has complete, unbridled discretion, is under no time limit in which to act, and is not required to justify its decision in any way whatsoever. And it doesn’t. It is extremely frustrating for everyone involved when both lawyer and client have spent long and painstaking hours to submit a compelling, thorough, well-written Petition, only to have it rejected with no explanation. This is especially frustrating when the Petitioner has had no contact with law enforcement in decades, has been gainfully employed throughout that time, and has demonstrated sincere remorse for his offense. Why would such a person be denied executive clemency?

Well, the reason is that there is some political risk in granting these petitions, and very little political gain. If, after receiving a pardon, a petitioner were to commit a violent offense, the governor would face tremendous backlash. Is it worth it? I think it is. But that’s because I feel strongly about second chances, and I’m not trying to get elected or re-elected.

As election day rapidly approaches (and by that I mean, it’s tomorrow), I’m reading as much as I can about the democratic candidates to try to glean who is likely to grant the most clemency petitions. As a record clearing attorney, that’s who I will choose. But it’s a tough call. Year after year, lawmakers talk about the unfairness of our punitive system, and the vicious cycle of poverty that it causes. But very little is done about it. Executive clemency should be granted to all convicts who can demonstrate that they’ve overcome their past and stayed out of trouble.

Choosing among Pritzker, Kennedy and Biss is tricky, because all of the democratic candidates know that criminal justice reform is important to their base, and they are all paying the requisite lip service. But who would actually deliver if elected? So far the candidates have made very few statements about clemency in particular, amid the constant references to the importance of overall criminal justice reform.

Chris Kennedy has stated that he hopes to “reform the pardon process for non-violent offenders,” and that society should not focus on “continual punishment.” He hasn’t elaborated much, but that is a dead-on description of the philosophical reason for supporting record clearing. But will that philosophy actually manifest in the granting of petitions? It’s so hard to tell, because that’s the extent to which he has commented on it, as far as I know. And what about violent offenders? Non-violent offenders already have the option of sealing for most offenses. If people are petitioning for executive clemency as opposed to sealing, it is usually because there is a violent crime on the rap sheet. Kennedy makes a qualified statement, which makes him seem politically fearful to take a stand.

Although business executive J.B. Pritzker has talked extensively about criminal justice reform, he may be the candidate that has said the least about clemency specifically, or what he would do. One thing that does stand out about him, regardless, is his running mate. Juliana Stratton, a state representative from Chicago, has taken on the issue of statewide voting rights for prisoners. She has proposed House Bill 4469, which would put into place systems which would expand access to voting for inmates. An administration that cares about prisoner’s rights can be trusted to care about the process of granting clemency and to grant petitions when they make a good case. But that tells us nothing about the willingness of the governor to take the political risk of granting more clemency petitions.

State Senator Daniel Biss has stated that as part of his initiative to decriminalize marijuana, he will thereafter grant clemency to all of the convicts who would not have sustained convictions under the new law. That is a big promise. He has also made statements to the tune that he would be the least “politically frightened” to grant clemency and that he would like to review how governors view their clemency powers. He plans to use his clemency powers to address unfair sentencing. These are important promises, because they speak to the problem directly: if we believe that people deserve a second chance, more of these petitions must be granted. Furthermore, the claim that he is not politically frightened is refreshing, because he’s right about the fact that most candidates are.

I do expect that any democratic governor will grant more clemency petitions than Bruce Rauner. The question is, which one will grant the most? Taking each candidate at his word, I believe that Daniel Biss will grant the most petitions. Although Pritzker’s running mate seems very promising, the governor himself will have sole, unbridled, unaccountable discretion, and he just hasn’t made enough passionate comments about the issue. There’s just not that much information to work with, but Biss comes out on top by the skin of his teeth. Based exclusively on statements made by the candidates on the campaign trail, and between Kennedy’s political hedging and Pritzker’s silence, his bold promise seems to be the best option we have.

If we had instant runoff voting, which would solve a lot of this country’s problems, my lineup would be 1. Biss 2. Kennedy 3. Pritzker. But alas, we do not. And that, fellow citizens, is a subject for another day.