Inaction of Mercy

INACTION OF MERCY: MINNESOTA’S PARDON PROBLEM

By: Devin Driscoll, Volume 101 Staff Member

The pardon power of the President[1]—called the “benign prerogative” by Hamilton[2]—has long attracted scholarly attention.[3] The granting of executive commutations and pardons at the federal level had been in steep decline: President Carter granted 563 in his single term; the senior President Bush granted seventy-seven in his. President Reagan granted 406 over eight years; President Clinton’s 457 was a slight increase over the same period; and the younger President Bush granted just 200 in his two terms.[4] In September of 2015, with a little more than a year left in his second term, President Obama had granted only 153.[5] However, that number exploded over the following eighteen months, with President Obama granting 148 pardons and 1626 commutations,[6] mostly to nonviolent drug offenders.[7] It remains to be seen what President Trump’s view of the pardon process will be.

While President Obama’s robust use of the benign prerogative revived interest in the pardon process at the federal level, relatively little attention has been paid to state-level pardon processes. As with its federal analogue, state pardons are in a steep decline.[8] While some of this decline can be explained by politics,[9] some of the phenomenon is likely explained by structural issues in state-level pardon processes.

I. STATE PARDON STRUCTURES

Margaret Colgate Love served as the U.S. Pardon Attorney from 1990–97.[10] Since leaving government service, she has built a practice focused on “executive clemency and restoration of rights, and sentencing and corrections policy.”[11] Her 2012 paper, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, is one of the few comprehensive studies of state-level pardon processes.[12] She identifies three “basic administrative models that govern pardoning” in the states: the independent board model, the shared power model, and the “optional consultation model.”[13] In the independent board model—used by six states[14]—the Governor appoints a pardon board, but plays no role in the process.[15] The shared power model is utilized by half the states in which the governor plays a more formal role in the granting of pardons.[16] Within the shared power model, there are three subcategories: (i) ten states require an “affirmative recommendation from a body of elected or appointed officials;”[17] (ii) seven states require the governor to request a non-binding recommendation from an appointed board;[18] and (iii) four states—including Minnesota—require the consent of “other high officials sitting with the governor as a board of pardon.”[19] The final model is closest to the federal example, with state constitutions “impos[ing] no prior restrictions on the governor’s pardon power,”[20] and is used by twenty-three states.[21]

II. MINNESOTA’S UNUSUAL PARDON STRUCTURE

As noted above, Minnesota is one of only four states employing the board of pardon model. In the North Star State, the Board of Pardons is made up of the Governor, the Attorney General, and the Chief Justice of the state’s Supreme Court.[22] The Board is authorized by statute to grant two different forms of reprieve: (i) the absolute pardon, and (ii) the pardon extraordinary.[23] The former is essentially a commutation.[24] The latter “set[s] aside and nullif[ies] the conviction and . . . purg[es] the person of it, and the person shall never after that be required to disclose the conviction at any time or place other than in a judicial proceeding or as part of the licensing process for peace officers.”[25] Offenders become eligible to apply for a pardon extraordinary (i) five years after the termination of their sentence for nonviolent crimes, or (ii) 10 years after the termination of a sentence for a violent crime.[26] When reviewing applications for pardons extraordinary, the Board notifies the sentencing judge, the county attorney’s office that prosecuted the crime, and any victim that can be located, and invites them to the hearing for comment.[27] Both absolute and extraordinary pardons require a unanimous vote of the Board.[28]

From 1940 to 1989, the Board denied only six percent of applications, “even routinely granting pardons for crimes like murder, robbery and sexual abuse.”[29] Since then, the number of pardons extraordinary granted by the board has cratered. Between 1990 and 2012, the Board denied thirty-seven percent of applications for pardons extraordinary.[30] Minnesota has not granted an absolute pardon since 1990.[31] The legislature, in response to “a critical news report on pardoned Minnesotans who reoffended,” added the five- and ten-year waiting periods and unsealed pardon records in 1992.[32] A vetting process was also added, overseen by the State Board of Corrections, which Margaret Chase Love says is unique: “You have to apply to apply, in a sense. I don’t know any other state that does that.”[33]

III. TIME TO REVISIT MINNESOTA’S PARDON PROCESS?

Chief Justice Gildea “describes being a member of the board as something akin to serving as a juror.”[34] That metaphor is a better fit for this process than an appellate court, but still inapt. The unanimity requirement—particularly in the absence of private deliberation after the hearing[35]—the pre-application vetting, and the political anxiety around pardons generally, create an institution that rarely fulfills its function. As Hamilton noted in 1788, “[a]s the sense of responsibility is always strongest . . . undivided, it may be inferred that a single [individual] would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law.”[36] The Framers believed that “one [person] appears to be a more eligible dispenser of the mercy of government,” and gave that benign prerogative to the President.[37] Minnesota should consider whether the Governor alone could more ably dispense that mercy on our behalf.

  1. U.S. Const. art II, sec. 2 (indicating the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”).
  2. The Federalist No. 74 (Alexander Hamilton). For a modern examination of the Framers and the executive pardon, see Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology, 593, 595–603 (2012).
  3. See, e.g., Obie S. Ware, The Pardon Power, 13 Ky. L.J. 261 (1925); W.H. Humbert, The Pardon Power of the President (1941).
  4. Leon Neyfakh, The Pardon Process is Broken, Slate (Sept. 4, 2015), http://www.slate.com/articles/news_and_politics/crime/2015/09/presidential_pardons_presidents_are_using_their_clemency_power_far_less.html (citing Clemency Statistics, U.S. Dep’t of Justice (updated Mar. 3, 2017), https://www.justice.gov/pardon/clemency-statistics).
  5. Id.
  6. Clemency Statistics, U.S. Dep’t of Justice (updated Mar. 3, 2017), https://www.justice.gov/pardon/clemency-statistics.
  7. Sari Horwitz, Obama Commutes Sentences of 330 Nonviolent Offenders, Wash. Post, Jan. 20, 2017 at A2. In total, President Obama granted commutations to “more people than the past 12 presidents combined, including 568 inmates with life sentences.” Id.
  8. Maggie Clark, Governors’ Pardons Are Becoming a Rarity, Governing: Stateline (Feb. 8, 2013), http://www.governing.com/news/state/sl-governors-balance-politics-with-pardons.html.
  9. Id. (“By and large, the reason for the drop in the number of governors’ pardons since the 1960s is political.”).
  10. Biography, Law Office of Margaret Love, http://pardonlaw.com/biography (last visited Apr. 4, 2017).
  11. Id.
  12. Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 U. Saint Thomas L.J. 730 (2012).
  13. Id. at 744.
  14. Id. at 744 n.62 (noting the statutory language of Alabama, Connecticut Georgia, Idaho, South Carolina, and Utah).
  15. Id. at 745.
  16. Id.
  17. Id. at 745 n.65 (noting the authorizing language for Arizona, Delaware, Louisiana, Massachusetts, Montana, New Hampshire, Oklahoma, Pennsylvania, and Texas). Rhode Island requires a vote of the State Senate. Id. at 745 n.66.
  18. Id. at 745 n.67. (noting the authorizing language for Alaska, Arkansas, Kansas, Michigan, Missouri, and Ohio). California imposes this requirement “only if the person seeking clemency has more than one conviction,” at which point the governor must seek a recommendation from the state parole board and “approval from a majority of the justices of the state supreme court.” Id. at 745 n.68.
  19. Id. at 745 n.64 (noting the authorizing language for Florida, Minnesota, Nebraska, and Nevada).
  20. Id. at 747.
  21. Id.
  22. Minn. Const. art. V, § 7.
  23. Minn. Stat. § 638.02 (2016).
  24. Id. § 638.02(1).
  25. Id. § 638.02(2)(2).
  26. Id. § 638.02(2)(1)–(2).
  27. Minn. Stat. § 638.06 (2016).
  28. Minn. Stat. § 638.02(1), (2) (2016).
  29. Briana Bierschbach & Andy Mannix, Far From Grace: How Minnesota Radically Changed the Way it Forgives Criminals, MinnPost (July 30, 2015), https://www.minnpost.com/politics-policy/2015/07/far-grace-how-minnesota-radically-changed-way-it-forgives-criminals.
  30. Id.
  31. Id. This is largely a function of determinative sentencing, and Minnesota’s role as the first state to adopt sentencing guidelines. Id.
  32. Id.
  33. Id.
  34. Id.
  35. Id. (noting the Board “rule[s] on a petition on the spot”).
  36. The Federalist No. 74 (Alexander Hamilton).
  37. Id.
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