Shortly before leaving office, the outgoing governor of Mississippi, Haley Barbour, issued several pardons of convicted criminals, including four convicted murderers who, as part of a prison work-release program, had worked at the governor’s mansion. The vast majority of states allow their governors to pardon convicted criminals, just like the U.S. Constitution allows the President to pardon people who are convicted of federal crimes (but the President cannot pardon people convicted in state courts of state crimes, where the vast majority of criminal prosecutions take place).
The U.S. Constitution says that the President can pardon anyone convicted of a federal crime. This power exists to give convicted criminals one final avenue of appeal when they have exhausted all the remedies afforded to them by the court system. Because the President does not need to give any reason for his decision to grant or deny a pardon, this theoretically allows the president to act based on his sense of fairness and justice, acting independently of the legal and factual findings of the courts.
Most states follow a similar model. This means that the state governor can pardon any convicted criminal, for any reason whatsoever, or for no reason at all.
Mississippi’s constitution gives its governor this authority, though there are a few minor procedural hurdles that a convict must jump through when submitting a request for a presidential pardon. But the attorney general of Mississippi decided to challenge these pardons in court. And the Mississippi Supreme Court has just upheld the former governor’s pardons.
The attorney general argued that the former governor had not followed a provision in the state constitution which requires any convict applying for a pardon to have a notice published in the county in which their crime took place, at least 30 days before the pardon is effective.
However, the Supreme Court ruled, citing the basic doctrine of separation of powers, that because the power to grant pardons rests entirely with the governor, it is also up to the governor to decide whether or not this constitutional requirement had been satisfied.
In its opinion (PDF), the court’s 6-3 majority took pains to note that they were not ruling on the wisdom or tactfulness of the governor’s decision. Nor were they deciding whether or not the governor is above the law, taking it as a given that he is not.
The court was essentially ruling on its own authority: the question was whether or not it the state’s judicial branch has the authority to intervene in an area that the constitution explicitly assigns to the governor.
I’ll be the first to admit that the former governor’s judgment in issuing some of these pardons was questionable, at best. However, without being an expert on Mississippi state constitutional law, I think I can still say with some confidence that the court made the right decision in this case. Our government is divided into three distinct branches, each of which performs functions essential for governing a free society. By dividing power among three branches of government, no single one can become too powerful, and each acts as a check on the power of the other two. This court in this case found that it did not have the authority to intervene in a matter that’s exclusively reserved to the executive branch of the state government.
Some people are certain to be angered by the court’s decision, and that is perfectly understandable. I can’t imagine the pain that the loved ones of a murder victim must go through. And this controversy almost certainly re-opened those old wounds. Despite the fact that I think the court made the right legal decision, I am not in any way trying to disparage their objections to the actions of the governor, or the anger they must be feeling over the court’s decision.
However, I hope that pundits avoid engaging in knee-jerk accusations of “judicial activism.” Because this is, in fact, the exact opposite of judicial activism – the court declined too intervene in a matter reserved to another branch of government. This court’s decision was actually a textbook example of judicial restraint.
While the criticisms of the governor’s actions may be perfectly valid, and we have every right to express them, I’m glad that the court followed the state constitution in this case. And if the voters and state legislature in Mississippi decide to ensure that this never happens again, they can amend the state constitution to limit the governor’s pardon power.
That’s the beauty of our constitutional system: if enough people are dissatisfied enough with the actions of one branch of government, chances are good that they can fix it.
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