Thursday, March 08, 2012

How to amend Section 124?

Now that Barbour's pardons have been upheld, the issue now becomes, how can Section 124 be amended to put a curb on the Governor?

Perhaps a clause could be added: "and any pardon issued without prior satisfaction of this notice requirement shall be void and of no effect."

Or you might provide more expressly for judicial review: "the attorney general, or the district attorney of the county wherein the offense to be pardoned was committed, shall be empowered to bring a cause of action for any void pardon to be declared as such in such-and-such court."

Really, though, for reasons noted elsewhere, the notice requirement is a bit of a jumble. TBA thinks it makes more sense to put the burden of the publication on the Governor, and to require a short and plain statement of the person who's proposed to be be pardoned, the offense in question, and an address for people to submit comments.

That, in tandem with the changes suggested above, might put some teeth in the notice requirement, and make it impossible for an outgoing Governor to issue surprise pardons.

... So here is a first draft:
In all criminal and penal cases, excepting those of treason and impeachment, the governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the legislature; but. no Any pardon shall be granted before conviction shall be void and of no effect;. and iIn cases of felony, after conviction no pardon shall be granted until thirty days after the applicant therefor Governor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, notice of his petition for intention to pardon, setting forth therein the name of the person to be pardoned, the nature and date of the person's conviction, and an address to which members of the public may send their comments; and any pardon granted without such prior notice having been so published shall be void and of no effect. Where a pardon is granted which under this section is void and of no effect, the attorney general, or the district attorney of the county in which the felon was convicted, shall have authority to file suit to have said pardon declared void and of no effect, in the court wherein the conviction was rendered, and naming the Governor who issued the pardon and the person pardoned as defendants. The court shall rule on said suit within 30 days, and appeal from its judgment may be had in accordance with law; but the appellate court shall give expedited treatment to said appeal.
(1) Giving both the AG and the DA power to file suit helps avoid situations where the AG is a crony of the Governor; in any event, local interests dictate letting the DA have this authority.

(2) I've tried to iron out the 30-day bit to make clear that publication once, 30 days prior, suffices.

(3) Local interests again dictate that suit be brought in the relevant county. This avoids judge-shopping, and there is no good reason why Hinds County judges should have any special authority here.

(4) Since a void pardon may result in someone's going back to jail, it makes sense that the court should have to rule quickly, and that any appeal should be expedited.

20 comments:

  1. Sadly, Mary Sue Shields' name was not on that pardon list.

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  2. Women who kill men may be a graver problem in Barbour's eyes than vice-versa.

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  3. Much better draft than an insurance agent could have written. In fact, I really like it.

    Terminator

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  4. Your assuming that the masses and the warmongering Baptists have "repentence, rehabilitation, redemption and forgiveness" in their hearts.

    Vance Justice's only comment over at NMC seemed to have merit. You were the only that responded, but never really answered the "valid publication" question regarding the granting of a pardon to someone who hasn't requested one.

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  5. I see that you have addressed it here, though.

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  6. But in putting the ball in court of the local DAs, please keep in mind that there are lots of Forrest Allgood and Judge Jim Kitchen types running on "get tough on crime" election platforms.

    Call me crazy, but I think that the Kennedys should show forgiveness and petition for the release and deportation of Sirhan back to his native Trans-Jordan.

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  7. Yes, the "applicant" ambiguity is tough. Restraints should be read narrowly, but Randolph and Hood may have a point that we thus read the rule out altogether.

    Crusading DAs notwithstanding, the local interest seems compelling. If we iron out the statute, the pub issue should be black-and-white, no grandstanding: did the Gov publish 30 days out or not?

    I see the point re Sirhan, but alas, forgiveness is easier to prescribe than to swallow.

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  8. I'm inclined to agree with what I understood the majority opinion about the reason for the publication clause being; primarily for the Governor's benefit in making the decision, and not so much for the public's "right" to have knowledge or opportunity to comment. Is there really any doubt what the victim's families or the public might think of any pardon? And that being the case, what real purpose does notification accomplish?

    I don't care for most of the pardons in this in instance or how they were handled, but it appears the tenor of the reactions are but one more instance of knee-jerk wegottafixit in the increasingly blood-thirsty mindset of revenge in society. For this to be a Christian country we sure appear to be wanting a Taliban-like tribunal system allowing for retribution and revenge and most assuredly not justice tempered with mercy.

    Razor

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  9. So, the traditional pardoning of the prison trustees by the Governor lies in the dustbin of history and now made moot by the hiring of contractors?

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  10. Razor, I agree the dissents were unpersuasive on the purpose of the notice provision. I've rewritten it to do what Hood and Randolph think it says now.

    In practice, I think applicants didn't publish until told they were approved, so in practice a notice did indicate assent by the Gov. But better to spell that out.

    I value the pardon power but see no reason for the Gov to be a sneak about it.

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  11. Pugnacious, I correct you... A letter from Special Assistant Attorney General of MDOC David Scott, dated Feb. 28, 2012, claims David Gatlin was never placed in a "trusty" status. The media (and obviously fellow attorneys) erroneously refer to any inmate housed in the governor's mansion as a trusty. Inmate Gatlin was placed at the governor's mansion at the recommendation of a committee who evaluated numerous inmates based on their records and personal interviews.
    I'm curious, did he just "remember" this happening two to three years ago or did he look into Gatlin's missing mansion files? or Did some Taliban-like tribunal system send all these letters impersonating MDOC that refer to Gatlin as Trusty Gatlin?

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  12. It's "Trusty," thanks for the correction.

    I would expect, now that he is freed, we will hear the rest of the story of the Brandon trailer park murder and why Barbour saw that Gatlin deserved forgiveness.

    I spoke with the son of the owner of the Brandon trailer park where the murder of the adulterous wife and the shooting of her lover occurred. It was the general consensus there that Gatlin is/was not the ogre portrayed by the press. Gatlin could've fought for a "crime of passion" defense, which, in Mississipi, would've not been a "life" sentence.

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  13. Last comment(s): We either have three co-equal branches of government, or not. Why allow one branch (the judiciary) one more bite at the apple?

    I'm trying to follow the logic of the limitation on the Governor's powers and rights. In theory and practical application, the MSSC and Legislature should have the same (nothing we don't agree with in the last 30 days) provision allowing one of more of the other branches to intervene before actual implementation. This would also prevent the MSSC/Legislature from making rulings/laws at the end of a session and the public getting a "surprise" by their actions walking out the door ("sneak?"). Think good for the goose...

    And another thought; the very idea of tweaking laws to suit populists or perpetual candidates for public office, in this instance, Hood and Randolph, makes no sense to me.

    Final thought; I beleive the MSSC's majority opinion on their ability to intervene if an individual property or personal right is at stake then they can intervene is entirely appropriate and adequate. The ability they outlined seems to accomplish the purpose of a review upon a truly egregious or questionable pardon, would it not?

    Razor

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  14. Pugnacious
    Here's your "rest" of the story...
    They had not spoken for +/- 10 months prior to killing her. She left him in GA less than two months after becoming pregnant. She heard no response the first or second time divorce papers were sent. The third time, her attorney pushed a little harder. He told his girlfriend he was going to kill her and one week later he left to do so. You somewhat know the rest of the story.
    Need any more info? Just ask instead of assume or believe someone that has no clue. In your research, your trailor parker owner should have told you he had just moved there. He had not even moved his furniture in. She had just gotten there. It was 10:30 a.m. Maybe you should ask the police or investigators that worked the case. Instead, you let stupidity prevail.

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  15. So, how does her lover come into the picture? I also was told that there was some question as to whether Gatlin was the biological father of the child.

    What do you know?

    I admittedly heard a third person account.

    I would think that Barbour's staff would have thoroughly investigated Gatlin's background if he was to be working in the mansion?

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  16. Inmate Gatlin was placed at the governor's mansion at the recommendation of a committee who evaluated numerous inmates based on their records and personal interviews.

    What's this blind-siding the Taliban all about?

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  17. You have named yourself correctly Pugnacious. Praying your not an attorney (I had a brief moment of hope for them) nor an investigator. If so, this world is in far more critical condition than I care to believe.
    They were not lovers nor had she ever had a lover. They grew up in church together. Period.
    As for your comment, I would think that Barbour's staff would have thoroughly investigated Gatlin's background if he was to be working in the mansion? Are you serious? The Bostick pardon should answer that question.
    GG

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  18. Here's a novel idea... I challenge ANY of you to prove ANY of my statements false.
    GG

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  19. Goodness, what a scrap.

    Whatever the truth about Gatlin's wife - and it is by no means extraordinary for bitterly estranged spouses, seeking divorce, to take up consolation elsewhere - I think we can all agree that blowing her head off was an excessive response that any decent person could have avoided.

    The "crime of passion" defense strikes me as sexist at its core, not far removed from the "honor killings" in Arab and Latino cultures.

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