Friday, February 18, 2011

Grits on Graves

We think this post, at Grits for Breakfast, strengthens our intuition on the matter of Anthony Graves and adds some impressive layers to our unlawyerly argument. Grits browsed opinions of the Attorney General of the State of Texas and learned that "pardons can't be granted in deferred adjudication cases because the defendant was never 'convicted.'" This appears to plainly follow from the plain wording of the limitations on the governor's power in the State Constitution (Article IV, Section 11).

However, Grits notes, "it's also clear the purpose of pardons is to mitigate the effects of over-harsh punishment, including collateral consequences, which is in line with the purpose requested by Mr. Graves."  A 1944 opinion takes this position, and adds this highly relevant language: "well established rule that the discretion of those lodged with the pardoning power is not a matter which may be controlled or reviewed by the courts." As we noted, in a previous post:
It is fantastic that, upon review, the judicial branch has exercised its own brand of clemency, but we do not read the Texas Constitution to mean that the Governor and the State's Board of Pardons and Paroles cannot also now use their own powers. The clause in the text says "after conviction." It does not say "any time after conviction, unless an alteration occurs in the decision making of the judicial or legislative branch, state or federal."

It is perfectly clear, Constitutionally, that the eligibility point - from the standpoint of the exercise of the governor's power - is the empirical fact of conviction, not what happens in the minds of some other branch of government.
This long-standing position on executive clemency, of course, echoes the U.S. Supreme Court in Ex Parte Garland:
The Constitution provides that the President "shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.
Grits also located an 1881 court ruling which states: "The effect of a full pardon is to absolve the party from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided." Says Grits:
Mr. Graves may have been absolved of his crime, but he has decidedly NOT been absolved from the "consequences ... of his conviction."
See full Grits for Breakfast post here.

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