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A 2008 statement of the Governor’s policy on Pardons, and some history of the publication requirement

What was the governor’s policy on pardons before 2011?

A really interesting document on the site of the Sentencing Project surveyed the policy and law in Mississippi on pardons as of 2008.  It states the policy at that time for parole eligibility:

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.

8 comments to A 2008 statement of the Governor’s policy on Pardons, and some history of the publication requirement

  • Anderson

    Yes, it is poorly drafted but the intent is clear that it is not confined to treason.

    ( how does one commit treason vs Mississippi? Declaring an aversion to catfish?)

  • Being against the flag.

  • P.B. Pike

    CRS, you must be joking.

  • Anderson

    PB, his is a more plausible guess than mine – if you were polling the citizenry.

  • P.B. Pike

    Yeah, I recall that poll of the citizenry a little over a decade ago. And I’ve been accused of being a traitor to my native state, in which my family’s lived since before it was a state, more than a few times by some of that citizenry for all sorts of imagined disloyalty, including once or twice on this blog. It’s better to know if I’m debating with that mindset, I’ve found. CRS and I have found common ground here and there, so I’m hoping it’s a joke.

  • My poll of the citizenry is that we are managed pretty well by the media and the political elites. If we had the liberty of mind of the yankees, we would have assembled ourselves into a constitutional convention and have a brand new one. It likes horror in the hearts of our political leaders that the citizenry would demand a constitutional convention. It ironically was a Republican named, Gil Carmichael of Meridian, that last proposed a new constitution for Mississippi. Currently we are trusting our leaders and in no mood for revolution or new organic law.

  • Our new leaders could tackle our prison problem as a whole instead of through ‘executive order’. Nicole Porter’s “Incarceration trends in Miss. 1988-2008″ concludes that we have the 2nd highest rate of incarceration in the nation and a lopsided group of non-violent or drug offenders. Why so many drug offenders here? Its 36% compared to the national average of 20%? Are drugs more plentiful here? If yes, then why so? The new Governor & legislature should pop the hood on this problem and give the people (including offenders) a better system. We need metrics on parole policy and more transparency for starters.

  • BlackBear

    Dragging over the prior thread, there are two (primary) things that bother me with this.

    First, I understand that this is a check against the judiciary. However, I disagree that it is a requirement that can be disregarded. As an analogy look to impeachment power, the “ultimate” Constitutional check given to the Legislative branch. The MS constitution says: “The house of representatives shall have the sole power of impeachment; but two-thirds of all the members present must concur therein. All impeachments shall be tried by the senate, and, when sitting for that purpose, the senators shall be sworn to do justice according to law and the evidence.” Under the logic that this 30-day requirement is only for form’s sake, and able to be basically disregarded by the Governor, the requirement that 2/3s must impeach in the house and the senate must be sworn could likewise be disregarded as procedural rather than substantive. I don’t think you can label these requirements as substantive or procedural, instead they are Constitutional limitations on power. In my view, a Constitutional limit on power cannot be, constructively or otherwise, disregarded.

    There was also an earlier argument that some powers are absolute – the Courts’ ability to establish procedural rules was an example. However, I would counter that that power is also limited by the Constitution; rules must abide by and provide for Due Process for starters. The only absolute power is with the citizenry, who grant these powers through the Constitution and who likewise limit it through the Constitution. As you said NMC, the Legislature cannot tinker with the right to pardon; precisely my point-only the citizenry can. As such, I would argue that you cannot render the power of the citizenry to limit the powers of any branch of government, through measures such as the 30-day requirement, superfluous by allowing blatant disregard of a plain rule.

    If a branch of government oversteps its bounds, if it attempts to exercise a power that it has not been granted, I would agree that review of those actions is a sticky subject and one that doesn’t fit well into our current state of “standing” jurisprudence. But to dismiss it outright as impervious judicial review underestimates the nature of the powers, and the arguments, involved.

    Lastly, there is this quote from Haley which may clear this all up. Apparently, the pardon power is not based on our system of check sand balances, rather it is “based on our Christian belief in repentance, forgiveness and redemption — a second chance for those who are rehabilitated and who redeem themselves.”

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