Saturday, February 19, 2011

Texas: Perry Messes with State Constitution

Article IV, Section 11 of the Texas State Constitution gives the Governor power to grant pardons "in all criminal cases, except treason and impeachment." The Governor's power is, however, clearly limited in that he can exercise it only 1) after conviction and 2) with a written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof. No other limitations are provided in, or implied by, the text.

However, in a move that seems to defy all reasonable interpretation of the clear meaning of the State's Constitution - as well as common sense and basic standards of fairness and decency - Governor Rick Perry is taking the position that, somehow, he is unable, or without legal authority, to grant a pardon to one Anthony Graves. Mr. Graves was convicted of the murder of a mother, daughter and four grandchildren and spent 18 years in prison (12 of them on "death row") before the 5th U.S. Circuit Court of Appeals threw out the conviction (based on prosecutorial conduct) and ordered a new trial. The district attorney has announced that a "fair" trial is not now possible, but has also declared Graves "innocent."

State law (or, more specifically, the Tim Cole Act, H.B. 1736) provides persons "wrongfully imprisoned" - 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 capital murder charges against him did not contain the words "actual innocence." The Act says a person is an appropriate recipient if "granted relief" on the basis of "actual innocence" (like maybe a district attorney publicly declaring one innocent and dropping all charges?) or they have received a "full pardon on the basis of innocence."

Enter Governor Perry with the quirky position that he cannot grant a pardon because "a federal appeals court had thrown out the original conviction, and a Texas governor can only pardon a convicted criminal."

To this we say 1) Mr. Graves was clearly convicted - that is exactly why Texas had him in prison for 18 years. The federal court did not "throw out" nothing. It threw out a conviction. How hard is this? Indeed, we wonder (but not too much) if, at any time in 18 years, Graves would have been allowed to escape from captivity under the premise that he had never actually been convicted? 2) The current jurisprudential pondering as to the legal "existence" of Graves' conviction (following reversal) is wildly entertaining stuff, but wholly irrelevant. The Texas Constitution does not require pardon recipients to stand convicted. It only requires that recipients have been convicted. And that category of persons most certainly includes Mr. Graves - review the first point, if necessary 3) Absolutely nothing in the State Constitution suggests that the decision making of legislatures or the judiciary can, in any way, limit the executive's clemency power. The sensible conclusion (which would also be consistent with the federal model) is that they (the other branches of government) can grant their own forms of clemency, if they like, but they cannot limit the executive's power. Here in America, and perhaps even in Texas, this notion derives from a basic principle called "separation of powers." It is really cool stuff, if you look into it!

In sum, Governor Perry's position in this matter is clearly both odd and very very far from being anything like the only possible interpretation of State law and the Texas Constitution. So, the only remaining question is: why on earth is he insisting on maintaining this position?

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