GateHouse Media
January 11, 2019
A pardon is and executive act of mercy. American presidents
are empowered by Article II, Section 2 of the U.S. Constitution, “to grant
reprieves and pardons for offenses against the United States.”
Governors are bound by a litany of state constitutional
limitations with regard to how pardons are evaluated and the manner in which
they are approved or denied.
California has a unique set of restrictions on the
Governor’s power to pardon. Although the state Constitution provides in Article
V, Section 8 that the governor’s “power to grant clemency on whatever grounds
he or she deems appropriate” is unlimited, an applicant for a pardon with two
felony convictions must be reviewed by the California Supreme Court.
Outgoing Gov. Jerry Brown had 10 pardon cases rejected by
the Supreme Court in his final year as governor, without comment or explanation
by the court.
In January 2011, Kansas Governor Sam Brownback issued an
Executive Order replacing the parole board with a “prisoner review board.”
Pardon power in Kansas is vested in the governor pursuant to
the state Constitution Article I, Section 7. That power is subject to
established legal regulations and restrictions. The governor is required to
seek the advice of the Kansas Prisoner Review Board before acting, though he or
she is not bound to follow the board’s recommendation.
Pardons, which do not erase a person’s conviction but merely
release a person from prison or parole obligations, are not common in Kansas.
Former Gov. Kathleen Sebelius, a Democrat, issued only one pardon during her
six years as governor. Her replacement, Gov. Mark Parkinson, issued four
pardons during his less than two years in office.
Governor Brownback issued one pardon and the current
governor Jeff Colyer has yet to grant a pardon.
In Pennsylvania, the governor’s pardon authority derived by
Article IV, Section 9 is limited by the Board of Pardons. The board is
comprised of the Lt. Governor, Attorney General and three members appointed by
the governor.
If a majority of the Board votes in favor of an application,
the Board recommends favorable action to the Governor. If less than a majority
of the Board vote in favor, the result is a denial by the Board and the
application is not forwarded to the Governor.
Life or death sentences require a unanimous vote by the
Board to recommend a pardon to the Governor. This changed in 1996 with the
election of Gov. Tom Ridge. During the campaign Ridge attacked his opponent Lt.
Gov. Mark Singel for recommending a pardon to Reginald McFadden who committed
another murder after his release.
The Governor in Pennsylvania, at his discretion, may approve
or disapprove any favorable recommendation submitted by the Board of Pardons.
The chances of receiving a pardon for a life sentence are rare. Current Gov.
Tom Wolf, a Democrat, has pardoned two lifers; Gov. Ed Rendell, also a
Democrat, pardoned five and three Republican governors, Ridge, Tom Corbett and
Mark Schweiker, collectively pardoned one lifer in 14 years.
The president’s pardon power is exceedingly broad, and just
how broad may soon be tested. There are limitations - for instance, the
president’s authority only applies to actions that have already occurred, not
those that are ongoing.
According to Sam Berger at Just Security.com, the Supreme
Court has ruled the president “shall have power to grant reprieves and pardons
for offences against the United States.” While the Court recognizes that the
pardon power is broad, it explicitly states that pardons only apply to an
offense “after its commission.”
Conspiracy is an ongoing crime. As Berger notes, an
obstructive pardon for actions related to a conspiracy involving the president
would not eliminate legal liability.
There are two reasons a pardon granted in the midst of a
conspiracy investigation may be unlawful. First, a pardon would be a
continuation of the crime, and thus the pardon itself would be an invalid
attempt to pardon actions that were ongoing. Second, the pardon would be a new
conspiracy and thus a new crime.
In either case, there are limitations on the president’s
ability to grant a pardon, just as there are limits on the manner in which individual
governors can extend mercy to those convicted of a crime.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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