What was the governor’s policy on pardons before 2011?
• Eligibility: According to the Governor’s Office, informal policy requires applicants to wait seven years after completion of sentence. Federal and out-of-state offenders are not eligible for a state pardon.
It also states the publication requirement and then describes the frequency of grants:
• Process: All pardon applicants must post notice in newspaper in county of conviction 30 days prior to making application to Governor, setting forth the reasons why pardon should be granted. Miss. Const. art. 5, § 124. Facially meritorious cases sent to Parole Board for investigation. Generally requires letters of recommendation from community and family, and statement of unusual circumstances.
• Frequency of Grants: Usually 10-20 Governor’s pardons issued at end of term. According to the Mississippi Attorney General’s office, there are several dozen legislative pardons granted pursuant to Bills of Suffrage each year. Recently there has been increased legislative activity, and 36 bills of suffrage passed in 2004. Source: Mississippi Attorney General’s Office.
What are the origins of the publication requirement?
There were no publication provisions in Mississippi’s first three constitutions. The pardon provisions in the 1832 and 1868 constitutions were essentially the same. The 1817 constitution‘s provision about remitting fines or forfeitures was somewhat different; otherwise, the pardon provisions were about the same in 1832, and even in the same section of the constitution. The 1890 constitution began with language very closely based on its predecessors:
In all criminal and penal cases, excepting those of treason and impeachment, the governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the legislature;
This was followed by new language that imposed requirements that there had to be a conviction before there could be a pardon, and that there had to be newspaper publication prior to a pardon:
but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.
This language was entirely new in the 1890 constitution.
Folks in commenets have suggested that the publication requirement only applies to treason. I don’t think so. The new language that starts after the semicolon begins by saying “no pardon” can occur prior to conviction (if that were in the US Constitution, it would have prohibited the Caspar Weinberger pardon). That obviously is not a reference to treason only. There follows this language “and in cases of felony” (if this language were limited to treason, then that phrase is completely unneeded) “after conviction no pardon shall be granted” until there has been publication. In other words, I think this very clearly imposes a publication requirement for all felony pardons.
That, of course, does not answer the question (much discussed in comments) of whether there can be judicial review of a pardon that allegedly was granted without publication.