Thursday, April 02, 2009
Ind. Decisions - 7th Circuit decides one Indiana case today; and an Illinois opinion about clemency
In U.S. v. Brewer (CJ Miller), a 6-page opinion, Judge Posner writes:
The defendant appeals from his conviction for illegal possession of a gun, for which he was sentenced to six years in prison. The only question presented by his appeal is whether he was stopped without reasonable suspicion, for it was in the course of the stop that the gun was discovered. * * *In Bowens, et al. v. Pat Quinn, Governor (ND Ill.), relating to nine plaintiffs petitioning for pardons, where then-Governor Blagojevich granted one of the petitions and denied eight at the same time the Governor's motion to dismiss was pending. Judge Posner wrties:
Tutino had three years’ experience with criminal activity in the particular housing complex, was parked in a position in which he had an unobstructed view of the only exit from the complex, heard gunfire, received confirmation of a report of shots fired, and saw a vehicle emerge seconds later from the complex. That vehicle—the white SUV—was the only vehicle on the road at that late hour in this high crime area, and it was pulled over and stopped for only moments before the officers making the stop learned that the SUV had been seen at the site of the shooting and that the occupants may have been involved in the shooting. Less than a minute later the defendant admitted that he had guns in the car. When we consider the dangerousness of the crime, the brevity of the interval between the firing of the shots and the spotting of the sole vehicle quickly exiting, the minimal intrusion on the occupants of the vehicle, the need of the police to inform themselves of the conditions in the complex before endangering themselves by entering it in the dark, and the further need to stop potentially fleeing suspects until more information about the crime could be obtained, we conclude that the police acted reasonably, and therefore that the judgment must be AFFIRMED.
It might seem that the case would be moot with regard to the nine plaintiffs whose petitions were acted on, since the only relief they seek is an injunction requiring the governor to decide within a reasonable time whether to grant a pardon that has been applied for. But the situation of the eight whose applications were denied is similar to that of a pregnant woman who challenges an abortion law and by the time the case is ready to decide has given birth. Her case is “capable of repetition [she may become pregnant again], yet evading review,” Roe v. Wade, 410 U.S. 113, 124-25 (1973), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); see also Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975) (per curiam), and on this ground is held not to be moot. The situation of the eight plaintiffs is similar because each of them can file a new petition for executive clemency after a year has elapsed from the denial of a previous one, 730 ILCS 5/3-3-13(a-5), and thus would face the prospect of having their next suit rendered moot by another prompt denial. Eventually they would be exhausted from repeated futile suits and would give up, and the governor could then resume his alleged policy of “pocket vetoing” clemency petitions. We con- clude that only the claim of the plaintiff whose clemency petition was granted is moot.As for any requirement of "timely" action, Posner writes:
Executive clemency is a classic example of unreviewable executive discretion because it is one of the traditional royal prerogatives (along with receiving foreign ambassa- dors and commanding the armed forces) borrowed by republican governments for bestowal on the head of government. U.S. Const., art. II, § 2, cl. 1; Schick v. Reed, 419 U.S. 256, 260-66 (1974); Ex parte Grossman, 267 U.S. 87, 108-10 (1925); John Harrison, “Pardon as Prerogative,” 13 Fed. Sentencing Rptr. 147 (2001) (“seeing the pardon power as a bit of the royal prerogative dropped into our generally law-bound constitutional system provides a perspective on the actual and possible functions of that power”). We therefore balk at the idea of federal judges’ setting timetables for action on clemency petitions by state governors.
And what sanction could a federal court impose for noncompliance with any “reasonable time” deadline that the court might set? Would it be to grant the pardon? If so, the governor’s office would be overwhelmed. Every felon in the state would apply for a pardon knowing that, with all applying, the governor’s office, overwhelmed, would be unable to process the applications within the deadline set by the court, and so they would be granted by default. Federal courts have run prisons, school systems, police and fire departments, and other state and local agencies found to have engaged in uncon- stitutional conduct. But for a federal court to run a gov- ernor’s pardon system would be a step too far.
The ruling by the district court is reversed with in- structions to dismiss the suit with prejudice. REVERSED.
Posted by Marcia Oddi on April 2, 2009 12:20 PM
Posted to Ind. (7th Cir.) Decisions