State law provides persons like Graves $80,000 per year for each year of wrongful imprisonment. But the Comptroller's office has decided Graves cannot benefit in this manner because the court order dismissing the capital murder charges did not contain the words "actual innocence."
To add insult to injury, the Governor's office says Rick Perry cannot pardon Graves because "a federal appeals court had thrown out the original conviction, and a governor could only pardon a convicted criminal." See story here.
To be sure, we are not expert on Texas law. But the Governor's take on clemency certainly does not square with our understanding of the federal model. The U.S. Supreme Court has long ruled that the president can grant a pardon at any time, before, during or after conviction. Amnesties, or general pardons, typically involve many persons being freed from even the mere threat of conviction. And, of course, Richard Nixon was never convicted. Ford pardoned him for crimes he "may" have committed. While the legislative and judicial branches may also exercise leniency formally, their efforts may not (and cannot) in any way limit the president's own powers.
On the other hand, Article IV, Section 11 of the Texas State Constitution reads:
BOARD OF PARDONS AND PAROLES; PAROLE LAWS; REPRIEVES, COMMUTATIONS, AND PARDONS; REMISSION OF FINES AND FORFEITURES. (a) The Legislature shall by law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions. The Legislature shall have authority to enact parole laws and laws that require or permit courts to inform juries about the effect of good conduct time and eligibility for parole or mandatory supervision on the period of incarceration served by a defendant convicted of a criminal offense.While the phrase "after conviction" may, on its face, appear to limit the power of the Board and the Governor in this matter, that conclusion does not exactly leap out at us in full bloom. First, Mr. Graves was convicted (in 1994). Had there not been a conviction, he never would have seen prison.
(b) In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons; and under such rules as the Legislature may prescribe, and upon the written recommendation and advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfeitures. The Governor shall have the power to grant one reprieve in any capital case for a period not to exceed thirty (30) days; and he shall have power to revoke conditional pardons. With the advice and consent of the Legislature, he may grant reprieves, commutations of punishment and pardons in cases of treason. (Amended Nov. 3, 1936, Nov. 8, 1983, and Nov. 7, 1989.)
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.
Indeed, would anyone have doubted the power of the Board and Perry to commute Mr. Graves' sentence 6 years ago? Of course not. Has the decision making of the federal judiciary now limited the ability of the State's Board and the Governor to exercise the pardon power on behalf of Graves? We think not. That limitation is simply not to be found in the text of the State's Constitution.