Friday, March 23, 2012

Hood to MSSC: Think again! - UPDATED

Hood files a motion for rehearing in the pardons case. (Even if the cover pages call it a "motion for reconsideration.")

It's better-argued than the state's merits briefs, but I'm not sure there is much here that Justice Randolph didn't say at least as well in his dissent.

(Nor do I buy the notion that the Legislature's statutory interpretation of a constitutional "victims' rights" provision can prove that the constitutional provision applies to pardons. I don't think gubernatorial pardons are part of the "criminal justice process.")

Is there anything here that will flip 6-3 into 5-4 the other way? Hard to believe.

... NMC finds the "victims' rights" bit more interesting than I do, so I've pasted below my comment at the linked post:

Here's my problem with their newly-discovered right. They rely on 26(A)(1):

Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process.

First, I am not buying that "fairness, dignity and respect" equal a requirement that the Gov comply with the Section 124 notice requirement. I don't see that the MSSC has interpreted it to mean anything, and those sound awfully non-substantive.

Second, the AG argues that MCA 99-43-43, which provides for notice "when parole or pardon is considered," shows that pardon is part of what 26(A)(1) includes. That is backwards thinking. I do not buy that the meaning of the constitution is ascertained from Legislative statutes.

Further, the stated purpose of the statutory chapter in question is "is to ensure the fair and compassionate treatment of victims of crime, to increase the effectiveness of the criminal justice system by affording rights and considerations to the victims of crime, and to preserve and protect victims' rights to justice and fairness in the criminal justice system." 99-43-1.

I am not buying that Section 124 pardons are part of "the criminal justice system." They are, pretty much by definition, foreign to the criminal justice system and issued in disregard thereof.

Similarly, 26A itself refers to "the criminal justice process":

Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process; and to be informed, to be present and to be heard, when authorized by law, during public hearings.

I don't believe that gubernatorial pardons are part of any "criminal justice process."

Section 99-43-43 can be taken to bind the Parole Board in its formulation of pardon recommendations, but I can't buy that it binds the Governor. "Parole or pardon" as formulated gives me the strong impression that it's aimed at the Parole Board, as paroles and pardons otherwise have nothing to do with each other.


  1. Just when I thought that this was over with! I was committed non-violent crime back in 1991 when I was 18 years old. Never been able to vote until now when Gov. Barbour gives me a pardon. I was released in 97 and went to school, have a family and have been employed ever since. Trouble Free! Now this guy wants to take those rights away from me. I could see if I was still in jail or a murderer or a rapist but I'm not. I made bad descisions as a teen but now I'm almost 40 years of age with a family. It's almost like being punished all over again. Seems a bit cruel seeing that some of us who received pardons have turned our lives completely around.

  2. Thanks for sharing, Anon. That's jut the kind of case that the pardon power was made for.

    Hood doesn't impress me, but I'm afraid part of your distress is due to Barbour's cavalier handling of the pardons process. He could've followed the rules, dotted some i's, crossed some t's, and there would've been no legal issue whatsoever. It's still a mystery to me why he didn't do that.

    Regardless, best wishes -- I will be very surprised if Hood's motion can flip two justices' votes, which is what it would take for them to reverse themselves.