Saturday, January 12, 2019

GateHouse: Pardons are not without limitations

Matthew T. Mangino
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, 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 and follow him on Twitter @MatthewTMangino.
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