As I have started my career as a wrongful conviction/innocence attorney, I have been struck by how many limitations there are on individuals in Illinois who are even given the opportunity to prove their innocence. A few weeks ago, I wrote in this space about how courts have held that the Post-Conviction Hearing Act (the primary vehicle for asserting claims of actual innocence not based on DNA evidence) cannot be utilized by individuals adjudicated delinquent in juvenile court. Another unfortunate limitation has come clear to me recently: the "imprisoned in the penitentiary" clause of the Act.
The first sentence of the PC Act limits its application to those "imprisoned in the penitentiary." Case law has interpreted this clause broadly to include those on parole/msr, probation, or appeal bond). But, as I see it, this broad interpretation is not enough. I've come across several people recently who have either completed their sentences (including their subsequent parole), or who are very close to doing so, yet have no desire to stop fighting for their innocence. They want their names cleared, and they don't care if they are no longer in the custody of the State. They also have a right to be compensated for their wrongful conviction no matter how long it takes. Having any crime on your record, let alone a serious felony, will continue to haunt you the rest of your life.
The post-conviction DNA statute has no such time limitation. But we know that DNA is available only in a small minority of cases. Innocent individuals who are not so lucky to have DNA available should nonetheless be allowed to prove their innocence whenever they are able to garner the evidence to prove it.