Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Illinois Governor’s Failure to act on Clemency Petition Actionable

By Brandon Sample

Persons seeking executive clemency in Illinois have a protected liberty interest in having their petitions decided within a reasonable time by the governor, U.S. District Judge Joan B. Gottschal so held March 11, 2008.

Stephanie Bowens and various other individuals sought executive clemency under the Illinois Constitution, Illinois Compiled Statutes (Ill.Comp.Stat.), and Illinois Administrative Code from Governor Rod Blagojevich. After Blagojevich failed to
take action on their clemency petitions following recommendations from the Illinois Prisoner Review Board (PRB), Bowens and eight other individuals filed suit under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 seeking an injunction requiring Blagojevich to decide their petitions, for good or bad, within a reasonable period of time.

Bowens and the other plaintiffs alleged a protected liberty interest under the Due Process clause in receiving such a determination based on the mandatory language of 730 Ill.Comp.Stat. § 5/3-3-13(d) which provides that, “[t]he Governor shall decide each application” for clemency. Blagojevich moved to dismiss the suit for failure to state a claim.

Before a state created liberty interest may be recognized under a theory of procedural due process, two prerequisites must be met: (1) the statute or regulation at issue must employ “language of an unmistakably mandatory character, requiring that certain procedures ‘shall’, ‘will’ or ‘must’ be employed,” and (2) the statute must “contain substantive standards or criteria for decision-making as opposed to vague standards that leave the decision-maker with unfettered discretion.”

Applying these standards to the plaintiffs’ claim, the court easily concluded that § 5/3-3-13 created a liberty interest protected by the Due Process clause based on the statute’s unambiguous requirement that “some decision shall be made.” And while § 5/3-3-13 does not specify a time period in which the governor must make a decision, the necessary implication of the statute’s imperative language, the court held, “is that the decision be made within a reasonable period of time.”

Accordingly, the court denied Blagojevich’s motion to dismiss. See: Bowens v. Blagojevich, No. 06-C-4915 (N.D. Ill. 2008).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Bowens v. Blagojevich