Legislative pardon

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A legislative pardon has been recognized for centuries, and is mentioned in more than 100 reported decisions in the United States beginning as early as 1838.

A legislative pardon has various types:

  • legislation that abolishes a crime for which a defendant was charged, thereby having the effect of pardoning him;
  • legislation that generally pardons a large group of unnamed persons; and
  • legislation that explicitly pardons someone by name.

U.S. Supreme Court Justice William O. Douglas, in a dissent, explained a famous instance of an offer of a legislative pardon as follows:

Dorr, who had been the governor under the "people's" constitution, was tried and convicted of treason against the State in early 1844. In January he was offered a legislative pardon if he would take an oath affirming support for the government in power. He refused since he believed the "people's" constitution was still binding. In June 1845, he was unconditionally pardoned under a new governor. Finally, in February 1854, the legislature reversed and annulled Dorr's conviction. For a history of the Dorr Rebellion, see A. Mowry, The Dorr War (1970).

Massachusetts v. Laird, 400 U.S. 886, 895 n.4, 91 S. Ct. 128, 133 (1970) (Douglas, J., dissenting).

Repeal of a Statute as a Pardon

The common law rule was that on the repeal of an act without any reservation of its penalties, all criminal proceedings taken under it fell. United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480. See, also, United States v. Borke, D.C., 5 F.Supp. 429; United States v. Gibson, D.C., 5 F.Supp. 153; United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763, 89 A.L.R. 1510; Hutchens v. United States, 5 Cir., 68 F.2d 1006; Cornerz v. United States, 5 Cir., 69 F.2d 1002; Cossiboin v. United States, 5 Cir., 69 F.2d 1002; Goldberg v. United States, 5 Cir., 69 F.2d 1005; Martino v. United States, 5 Cir., 69 F.2d 1010; Miller v. United States, 5 Cir., 69 F.2d 1011; Landen v. United States, 6 Cir., 299 F. 75; Vincenti v. United States, 4 Cir., 272 F. 114. The basis of this rule was a presumption that the repeal was intended as a legislative pardon for past acts. 22 C.J.S., Criminal Law, § 27b (4). To avoid the application of this rule Congress passed 1 U.S.C.A. § 29, which reads as follows: "The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."

The effect of this statute is to prescribe a rule of construction different from the common law rule that is binding upon the courts in all cases covered by it, but it refers only to "repeal of any statute", and does not refer to regulations or orders thereunder. Since this prescription is in derogation of the common law rights of persons accused of crime it is to be strictly construed and is limited to the repeal of statutes.

United States v. Hark, 49 F. Supp. 95, 97 (D. Mass. 1943).

Exclusivity in Executive Branch?

United States

No Supreme Court ruling limits the power of Congress, or the House or Senate within Congress, to issue pardons.

A dissent by a Democrat-appointed Justice (Byron White) expressed this view:

In United States v. Klein, 13 Wall. 128 (1872), an Act of Congress was struck for encroaching upon judicial power, but the Court found that the Act also impinged upon the Executive's exclusive pardon power. Art. II, § 2.

Ins v. Chadha, 462 U.S. 919, 999, 103 S. Ct. 2764, 2809 (1983) (White, J., dissenting).

But the Klein case merely invalidated a congressional attempt to restrict the power of the president to issue a pardon:

[T]he President's power of pardon "is not subject to legislation;" that "Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders." It is not important, therefore, to refer to this repealing act further than to say that it is impossible to believe, while the repealed provision was in full force, and the faith of the legislature as well as the Executive was engaged to the restoration of the rights of property promised by the latter, that the proceeds of property of persons pardoned, which had been paid into the treasury, were to be withheld from them.

United States v. Klein, 80 U.S. (13 Wall.) 128, 141-42 (1871) (footnote omitted).

Ohio

The Ohio Supreme Court upheld the legislative pardon, and reversed a lower court ruling that held the power was exclusive in the governor after all appeals have been exhausted.

The Ohio Supreme Court held:

A careful reading of Section 11 of Article III of the Ohio Constitution indicates that the grant of the pardoning power to the Governor is not a limitation on the General Assembly's power to pardon.

State v. Morris, 55 Ohio St. 2d 101, 108-09, 378 N.E.2d 708, 713 (1978) (reversing State v. Morris, C.A. No. L-76-142, 1977 Ohio App. LEXIS 9785, at *8 (Ct. App. Mar. 25, 1977)).

The Ohio Supreme Court also noted that there is some disagreement about this among the various states, but that several other jurisdictions have held likewise in allowing a legislative pardon:

However, another view holds that the pardoning power, at least with respect to the power to grant amnesties or general pardons, is not exclusively in the hands of the executive branch, regardless of the fact that the executive branch has been granted the power to pardon. See In re Briggs (1904), 135 N. C. 118, 124, 47 S. E. 403; Sutley, supra, 790-800 dissenting opinion; Rubin, Law of Criminal Correction, supra, at 675; Bishop, on Criminal Law supra, at 645; 3 Attorney General's Survey of Release Procedures, Pardon (1939), 102-113, 226, 310-312. Under this view, the power to pardon has been traditionally vested in the legislative branch, and the grant of such power to the executive branch, rather than an implied limitation precluding exercise of the power by the legislative branch, is a special grant of authority to a coordinate branch of government to grant pardons in certain instances. As noted in Bishop on Criminal Law, supra, at 645:

"It is the common style of our written constitutions to confer on the Governor specific executive powers, and on the legislature general legislative ones; the result whereof would seem to be that a Governor has only the pardoning power expressly given, and a legislature all not expressly withheld. * * * Ordinarily, as the function is both executive and legislative in the country whence we derive our unwritten laws, the vesting of the power in the Governor would appear not to make it exclusive in him."

State v. Morris, 55 Ohio St. 2d 101, 108, 378 N.E.2d 708, 713 (1978).

California

California courts have rejected an argument that pardons are within the exclusive authority of the governor:

The District Attorney argues that Senate Bill 1437 also violates the separation of powers doctrine by "usurp[ing]" the Governor's "exclusive pardon power" by "legally eras[ing] the conviction without the limits placed on the [G]overnor such as the need for a Supreme Court recommendation for pardons to twice-convicted felons." This argument too is without merit. Senate Bill 1437 has no effect on the Governor's ability to grant clemency and does not constitute an illicit legislative attempt to exercise the executive's clemency power. Rather, Senate Bill 1437 is an exercise of the core legislative power to define crimes, which includes the power to retroactively redefine crimes so long as the offender is not disadvantaged. (People v. Castellanos (1999) 21 Cal.4th 785, 791, 88 Cal. Rptr. 2d 346, 982 P.2d 211 ["'the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them'"].)

People v. Hill, No. E072935, 2020 Cal. App. Unpub. LEXIS 4310, at *28 (July 9, 2020).

Florida

A minority view expressed in some states is that the pardon power is held exclusively in the executive branch. See, e.g., Sullivan v. Askew, 348 So.2d 312 (Fla. 1977), cert. denied, 434 U.S. 878, 98 S. Ct. 232, 54 L. Ed. 2d 159 (pardon power in Florida is thought by some to be exclusively vested in the executive branch by the constitution and cannot be exercised by another arm of government) (cited without following it by Davis v. State, Dep't of Corr., 460 So. 2d 452, 460 (Fla. Dist. Ct. App. 1984)).

CO, NC, NJ, SD, and ME

Most of these states addressed and rejected the possibility of a judicial pardon in addition to a constitutionally authorized power by the state governor to pardon.

Colorado, North Carolina, and New Jersey seem to be against allowing a judicial (and perhaps a legislative) pardon:

See People v. Mankowsky, 529 P. 2d 314 (Colo. Sup. Ct. 1974).

Other jurisdictions have noted the same doctrine. That the pardon power is the exclusive province of the Governor, thereby depriving a court of jurisdiction once it adjourns, was early recognized in North Carolina. See State v. Lewis, 226 N.C. 249, 37 S.E. 2d 691, 693 (Sup. Ct. 1946).

State v. Robinson, 140 N.J. Super. 459, 471, 356 A.2d 449, 456 (Super. Ct. 1976).

A South Dakota court has rejected an argument for a judicial pardon, based on viewing the constitutional executive pardon power as precluding courts from exercising it. See State ex rel. Horner v. Taylor, 47 S.D. 124, 196 N.W. 494 (1923).

A Maine court cast doubt on a judicial pardon, based on assuming that the governor had that exclusive right under its state constitution:

[A]uthorizing a court so to act might be authorizing judicial exercise of the "pardon" power given exclusively to the Governor by Article V, Part First, Section 11 of the Constitution of Maine.

State v. O'Brikis, 426 A.2d 893, 894 (Me. 1981). See also State v. Gagne, 2019 ME 7, ¶ 14, 199 A.3d 1179, 1184 ("See Comm. Amend. A to L.D. 882, Summary, No. S-305 (118th Legis. 1997) ('The option [in the bill] of allowing the court to revoke the unpaid portion of the restitution in whole or in part has been removed as an apparent unconstitutional intrusion into the Governor's exclusive postconviction pardon power.'); see also State v. Hunter, 447 A.2d 797, 799-803 (Me. 1982).").