Executive Clemency, First-Offender Pardons; Automatic Restoration Of Rights

• Author: Helen Ginger Berrigan
• Position: U.S. District Court Judge, Eastern District of Louisiana

Executive clemency in Louisiana encompasses reprieves, commutations of sentence, pardons and remittance of fines and forfeitures. This article deals exclusively with commutations of sentence and pardons.

U.S. District Court Judge, Eastern District of Louisiana.

The 1974 Louisiana Constitution embodied the legislature's hope that criminal offenders had potential to change and to live productive lives. The Constitution provided that full rights of citizenship would be restored automatically once a felon completed his sentence. All first-time felony offenders received automatic pardons upon completion of their sentences. A Pardon Board was created for the first time, allowing for the full-time processing of requests for commutations of sentence and pardons for repeat offenders.

In Louisiana and across the nation, the public has grown more concerned over crime and has lost faith in the concept of rehabilitation. These trends have led to increasing emphasis on punishment and shrinking of opportunities for offenders to rehabilitate themselves.¹

I The 1973 Constitutional Convention

Under the 1921 Constitution, the governor had authority to grant pardons and commutations of sentence upon the recommendations of the Lieutenant Governor, the Attorney General, and the judge who presided over the conviction.² A 1968 amendment added an automatic pardon for first offenders.

The 1973 Constitutional Convention entirely revamped the pardon process. The proposal from the Committee on the Executive Department gave the governor the complete and sole discretion to grant pardons and commutations of sentence.³ As soon as the proposal was introduced on the Convention floor, an amendment was offered which would have swung the pendulum in the opposite direction. It would have provided that the proposed gubernatorial power to grant clemency "may [have been] restricted or limited "⁴ by the legislature. Supporters of the amendment complained of past gubernatorial abuses of the clemency process.⁵ According to the debate, the proposed amendment would allow the legislature to prevent the governor from granting clemency in certain categories of cases; of particular concern were life sentences. Nevertheless, the amendment was defeated, albeit by a narrow 45-52 margin.⁶ The next amendment proposed the creation of a Pardon Board consisting of five persons appointed by the governor but confirmed by the Senate. The governor could grant pardons and commutations of sentence only upon the recommendation of this newly created Pardon Board. The amendment also included the automatic pardon for first offenders, a provision carried over from the prior constitution. The amendment passed 102-1.⁷ Another proposed amendment would have allowed the legislature to restrict the governor's power to commute or pardon offenses punishable by life imprisonment. That amendment was defeated by a relatively narrow 46-63 margin.⁸

The provision ultimately adopted by the Convention as Article IV, Section 5(E) of the Constitution read as follows:

(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

(2) The Board of Pardons shall consist of five electors appointed by the governor, subject to confirmation by the Senate. Each member of the board shall serve a term concurrent with that of the governor appointing him.

In addition to the pardon provisions, the Constitutional Convention enacted a "second chance" opportunity for criminal offenders. The Declaration of Rights, Article 1, Section 20 declares: "Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense." During the debate regarding this article, opponents voiced concerns that the "rights" would be too broadly interpreted. Proponents maintained that the provision was intended to restore only rights such as the right to vote and to hold public office.⁹

II Judicial Interpretations Of The 1974 Constitutional Provisions

A Gubernatorial Pardon

Even prior to the 1973 Convention, Louisiana courts consistently held that a gubernatorial pardon restored the person to a "status of innocence of crime."¹⁰ This status means, among other things, that the conviction cannot be used later to enhance punishment if the person is convicted of a new crime. The Louisiana Supreme Court has held, however, that the conviction may still be used to impeach a witness in court, although the pardon is also admissible for the jury's evaluation.¹¹ The Louisiana Code of Evidence, enacted in 1989, precludes use of a conviction for impeachment purposes if it was nullified, by a pardon or otherwise, "explicitly based on a finding of innocence."¹²

B First-Offender Pardon

The 1974 Constitution does not distinguish between the effects of a first-offender pardon and a gubernatorial pardon, and there were no debates at the convention regarding the potential differences. However, the two are treated differently by the Louisiana Supreme Court. In State v. Adams,¹³ the supreme court concluded that the automatic pardon does not restore a person to the status of innocence, as does a full pardon. The court reasoned that a "full pardon granted by the governor has presumably been given the careful consideration of several persons who have taken into account the circumstances surrounding the offense, and particular facts relating to the individual."¹⁴ The first-offender pardon, on the other hand, is granted without Pardon Board review or explicit consideration by the governor. As a result, the high court held that the automatic first- offender pardon does not prevent the conviction from being used later to adjudicate the person a multiple offender. Similarly, an automatically pardoned first offender is still subject to laws prohibiting former felons from possessing firearms.¹⁵ A first- offender pardon likewise does not preclude the conviction from being used as a disqualification for occupational licensing.¹⁶ Nor does it prevent restrictions on a person's driving license privileges.¹⁷Finally, a person is entitled to only one first-offender pardon.¹⁸ The Constitution's equal treatment of the first-offender and gubernatorial pardons notwithstanding, the courts have restricted the benefits of the first-offender pardon because it is not based on the innocence of the offender.

C Restoration Of Rights

Article 1, Section 20 of the 1974 Constitution provided in part, "[f]ull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense." In interpreting the intent of this provision, the Louisiana...