The news this past week has been all about clemency. For those of you who remain unsure what clemency means, it refers to the broad executive power to pardon (invalidate guilt and punishment of a convicted individual), reprieve (postpone execution), or commute a sentence (reduce the severity of punishment). At the end of his term, former Governor Barbour pardoned a significant number of individuals who had been convicted of heinous crimes (a number of whom murdered their wives) — hence the “hue and cry”. (It should be noted that previously during his terms in office he had used his executive pardon power quite infrequently.)
At this point, Attorney General Jim Hood has obtained a temporary restraining order and injunctive relief from Circuit Court Judge Tomie Green based on his ability to demonstrate that “there is a substantial likelihood of success on his claim that the subject pardons violated Section 124 of the Mississippi Constitution….[that] there is a sufficient threat of irreparable injury should the subject individuals be released based upon the purported gubernatorial pardons….[and] that the threat of injury sufficiently outweighs any potential threat posed to the defendants by granting the request for injunctive relief.” Jim Hood v. Christopher Epps, et al, Hinds County Circuit Court, First Judicial District #251-12-00033(w). Several District Attorneys have also indicated their desire to effect injunctive relief. Governor Bryant has indicated that he would support legislation or a constitutional amendment to limit executive clemency powers, and among others, Representative David Baria, District 122, a Democrat from Hancock County, has filed a bill to limit executive clemency.
While the clamor will not subside for quite some time, actions to limit executive clemency power should not be considered in such an emotionally charged environment. While these particular pardons may appear as excesses, it is perhaps worth noting that executive clemency has a long history both in our democracy and English common law, as well as other democracies that derived their parliamentary law from the British colonial model, all somewhat derivative from the Greek model. The fact that “it has always been done that way” does not make it right, but it does give us a panoply of history and tradition to consider. While the ancient Greeks gave the power to pardon to the Ecclesia (assembly, legislature), allowing it to annul verdicts of the Discasteries (courts) [Executive Clemency in Capital Cases, 39 NYUL Rev. 136 (1964)], essentially this same power was given in England to the King in order for him to ameliorate injustice or grant mercy.
The three historical rationales which establish justification for clemency are these: 1 – unrestrained mercy, needing no pretense of fairness; 2 – a quasi-judicial rationale suggesting that those given authority and power over clemency may consider factors that were not presented or considered by trial judges, juries or appellate courts; and 3 – a retributive concept, intending that only the most deserving among murders are executed. An authority no less important than the U.S. Supreme Court, in speaking to the issue, noted: “Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera v. Collins, 113 SCt 853, 866 (1993).
While it may be argued that there was no miscarriage of justice to be remedied in former Governor’s acts of clemency, amendment or limitation of executive clemency power is a decision that should be based on rational consideration and not the tide of emotion.
