Thursday, March 08, 2012

Barbour pardons upheld

Opinion here.

6-3. Waller, Randolph, & Pierce dissent. Six separate ops.

... Essentially, the holding is as predicted. Yes, the Governor is constitutionally required to obey the notice requirement of section 124; no, the judiciary cannot sit in judgment of whether or not the Governor complied with that requirement.

... Dickinson writes for the Court, in a holding that seems a bit broader than had even been requested at oral argument:
The attorney general and the justices in dissent correctly argue that Section 124 places three limitations on the pardon power: (1) the Senate must consent to a pardon for treason; (2) no pardon shall be granted before conviction; and (3) a felon requesting a pardon must publish a petition for thirty days before the pardon shall be granted. While we agree that Section 124 places these limitations on the governor’s pardon power, we find these requirements no more compelling than the requirement in Wren: Legislative acts presented to the governor for signature must be passed by both legislative houses first.
So even a pardon for treason that wasn't approved by the Senate, or a pardon granted before conviction, would be valid, as opposed to Tom Fortner's argument (IIRC) that those would be "substantive" and not merely "procedural" like the notice requirement?

... The other ops, in nuce:

Carlson: Look, y'all, this should be unanimous, and get your story straight on whether governors "interpret" the constitution or not.

Chandler: Ruling for the AG would subject every pardon ever to judicial review.

Waller: All constitutional violations reviewable. No explanation of whether he would overrule the cases to the contrary.

Randolph: "Today’s decision is a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State."

Pierce: Cites a Kansas case the Court had distinguished decades ago, and urges a Southwick reading of Tuck v. Blackmon as overruling the prior case law.

... Kingfish posts today's order vacating Judge Green's TRO.


  1. How do you pardon a conviction before conviction? Can you pardon for a conviction that does not occur until after you've been out of office for X years? Can you pardon the conviction before the crime is committed?

  2. "How do you pardon a conviction before conviction?"

    That's what Ford did for Nixon, I believe.

  3. But it is explicitly disallowed under the Mississippi provision. And that could come up in this sequence-- indictment-pardon-motion to dismiss indictment. I would think a court could hear that one and say "can't have a pardon preindictment."

  4. Makes sense to me, NMC, which is why I find that paragraph a bit unnecessary.

  5. I think the limitation is to prevent "preemptive" or "immunizing" pardons. "I hereby pardon Joe for all past crimes and offenses, discovered or undiscovered, within the scope of the pardon power." You've just immunized Joe for everything done up to that time. By requiring a conviction, you have a public record of the offense, and one hopes, the people involved.

    Now, what would that do to the privilege against self-incrimination? Could someone so pardoned be compelled to testify against another, even though his testimony is also self-incriminating?

  6. Agreed, and probably a good thing, tho one could debate the Nixon pardon.

    But yeah, a preemptive pardon would presumably force the subject to testify.

    ... Wikipedia of course has the text of the Nixon pardon.