EDITORIAL: Do the time, then we’ll decide if you’ve done the crime

Illinois has put a new twist on the Alice-in-Wonderland concept of “sentence first — verdict afterward.” A legal backlog has grown so lengthy that some defendants are getting hearings on their appeals only after they have already completed their sentences.

The backlog has built up in the Office of the State Appellate Defender, which handles appeals for defendants who can’t afford their own appellate lawyers. Over the years, the roughly 175 lawyers in the office have uncovered many egregious examples of innocent people who were wrongfully convicted.

Twenty years ago, the appellate defender’s office ran afoul of a federal court because the backlog of cases had grown to the point that opening briefs weren’t being filed until an average of 18 months after the verdict was rendered at the trial level. The federal court said such a lengthy delay was “presumptively unconstitutional.” After the federal rebuke, the appellate defender’s office got rid of the backlog.

But now, because vacancies weren’t filled in recent years due to Illinois’ budget constraints, the average delay for the 5,700 cases currently in the office has shot back up to 21 months.

That’s “disheartening,” said MacArthur Justice Center Executive Director Locke Bowman, who led the fight to erase the backlog 20 years ago. “I had hoped that the examination of these issues and the work we did 20 years ago would have been more permanent.”

Because of the delays, innocent people may be sitting in prison unnecessarily. Other innocent people might have done their time before getting a ruling on their appeals. When you add in the time required for the state’s briefs, reply briefs and oral arguments, it can take close to three years or more for a ruling from an appellate court if the opening brief isn’t filed for 21 months. Most defendants have finished serving their sentences by then.

Last week, the Injustice Watch website cited two cases in which defendants had completed sentences of seven and 10 years, taking into account day-for-day credit, before the appellate court ruled in their favor.

When there are procedural errors at the trial level, the remedy usually is a new trial. But there is little point in having a new trial when the defendant already has served a sentence. Moreover, the longer it takes to schedule a retrial, the harder it is for both prosecutors and defense lawyers to put on their cases. Witnesses may be hard to find or may have started to forget what happened. Knowing that, appellate judges may be more reluctant to order new trials.

Long delays give the wheels of justice a flat tire.

After the Legislature finally passed a budget last year, appellate defender vacancies were gradually filled, and money again was made available to hire some outside lawyers to help out. That will keep the backlog from growing, but whittling it down will be an overlong process.

To get caught up more quickly, the Legislature should make additional money available to shorten the backlog, either by hiring extra appellate lawyers or increasing the funding for outside help. When a new director takes over the office next year, trimming the backlog should be a priority.

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