JUDICIAL AUTONOMY V. EXECUTIVE AUTHORITY: WHICH PREVAILS IN THE CASE OF A POSTCOMMUTATION COLLATERAL ATTACK?

• Author: Marrazzo, Vincent A.

It is emphatically the province and duty of the judicial department to say what the law is. --Chief Justice John Marshall (1) INTRODUCTION

The judicial and executive branches have struggled to define the limits of their power--with the Executive often overstepping its authority and the Judiciary attempting to reign in the Executive--since the Founding of the United States. (2) Perhaps the most famous--and earliest--example of the judicial and executive branches attempting to determine where one branch's power ended and the other's began occurred on February 24, 1803, when Chief Justice John Marshall announced that the federal courts not only have the power to declare legislative and executive acts unconstitutional, but that it is the Court's duty to do so. (3) Notwithstanding a federal court's duty to "say what the law is," (4) the Executive necessarily retains the authority to take some action that the courts cannot question. However, the line where executive authority ends and judicial scrutiny begins can often be blurry. Despite the seemingly clear language in the Constitution regarding executive clemency, (5) the President's authority to commute an inmate's sentence in a way that forecloses further judicial proceedings is one of the most recent issues in the case of judicial autonomy v. executive authority.

The authority of an executive to commute a criminal sentence existed long before the formation of the United States, and it endures under the Constitution today. (6) For example, the July 2020 commutation of President Trump's longtime friend and campaign advisor Roger Stone (7) thrust acts of executive clemency back into the limelight after being unnoticeably absent for over a year since the last time President Trump made headlines for an act of clemency. (8) Donald Trump is by no means the only President to make headlines for his commutations. The Fair Sentencing Act (FSA), signed into law by President Obama, resulted in more acts of clemency in a single day than occurred under the previous seven Presidents combined. (9) These commutations generated a maelstrom of media attention in which Obama was dubbed the "Commuter in Chief." (10) Additionally, similar to President Trump's obviously political commutation of Roger Stone's sentence," President Bill Clinton waited until the end of his second term to provide clemency for Marc Rich, whose "primary qualification for [clemency] appeared to be that his wife had donated large sums of money to Democratic Party causes." (12) While some of these clemency acts are more overtly political than others, it is clear that political considerations play an increasing role in determining who receives clemency and the specifics of the clemency act. (13)

Executive clemency is not often the topic of political discussion in America. In fact, outside the walls of the Justice Department, it may be discussed rarely, if at all. (14) That is, until there is an act of clemency. Then, the public, the media, and politicians discuss, debate, and disagree about clemency for weeks. (15) Although clemency is not at the forefront of the minds of the American people most of the time, it is a topic about which many people care deeply. Accordingly, Presidents have long considered public perception before making any clemency decisions. Furthermore, even though some of the aforementioned examples of clemency are not directly related to the issues discussed in this Note, they provide necessary context regarding the relevance of discussing clemency in legal discourse and help to contextualize the changing nature of presidential commutations by highlighting the increased politicization of clemency in the United States. (16) Understanding this context is vitally important when discussing the roles played by the Executive and the Judiciary when an inmate who receives a commutation attempts to seek further redress in the courts.

An inmate with a commuted sentence will sometimes collaterally attack his already commuted sentence. (17) This raises the question: Does an act of executive clemency divest the courts of authority to hear the collateral attack? In other words, does clemency moot the issues involved in the collateral attack? While multiple circuit courts have weighed in on this question, the Fourth and Sixth Circuits have developed the most robust discussions, disagreeing about whether federal courts may hear these cases. (18) The Fourth Circuit has held that a collateral attack postcommutation is moot as the "President's commutation order simply closes the judicial door." (19) In contrast, the Sixth Circuit has held that a commutation does not moot a collateral attack. (20)

This Note argues that the Sixth Circuit reached the correct result but has erred in focusing primarily on mootness. Specifically, this Note argues that separation of powers considerations, not mootness, should determine this issue. Part I provides an overview of the split between the Fourth and Sixth Circuits. Part II provides an overview of the justifications for, and development of, presidential commutations. It discusses how the justifications for commutations--and clemency more generally--have shifted from executive mercy to a political gamble. Part III provides an overview of the mootness doctrine and how it is relevant to this issue. Part III also explains the separation of powers and issues involving judicial autonomy and executive authority in the clemency context. Part IV argues that although a collateral attack postcommutation is almost never moot, the federal courts should focus their analysis of whether commutations foreclose judicial review on other separation of powers considerations, including preserving the sanctity of their role in reviewing unconstitutional convictions. Finally, Part IV also argues that the politicization of the pardon power in the modern era necessitates the court's involvement in postcommutation collateral attacks in order to (1) effectuate the ideals of mercy and justice and (2) protect the power of judicial review.

1. THE CIRCUIT SPLIT

   The Fourth and Sixth Circuits disagree on the following question: Does a presidential commutation effectively divest the federal courts of authority over a criminal sentence? More specifically, does a commutation moot an inmate's collateral attack on his sentence?

   In United States v. Surratt, the Fourth Circuit determined in a short opinion that the "President's commutation order simply closes the judicial door." (21) Raymond Surratt, Jr., was convicted in 2005 of numerous crack cocaine offenses, which resulted in a sentence of life in prison. (22) In 2010, Congress passed the FSA, which retroactively reduced the mandatory minimum sentence from life imprisonment to ten years. (23) Under the FSA, Surratt was entitled to have his sentence reconsidered. However, in 2017, President Obama commuted Surratt's sentence to a 200-month (just under seventeen-year) term of imprisonment (24) while Surratt was simultaneously collaterally attacking his underlying conviction. (25)

   The Fourth Circuit held that the President's commutation mooted Surratt's collateral attack. (26) Although the opinion itself provides no reasoning for the court's decision, Judge Wilkinson attempted to explain its reasoning in a concurrence. (27) He claimed that the Judiciary is "simply without power" to "readjust or rescind" the commutation absent some constitutional infirmity. (28) Surratt, Judge Wilkinson reasoned, is "no longer serving a judicially imposed sentence, but a presidentially commuted one." (29) He thus believed that by hearing the case, the court would be injecting itself "into the lawful act of a coordinate branch of government," thus interfering with the President's power to commute a sentence. (30) He explained that "[i]t would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought." (31) In 2018, the Fourth Circuit reaffirmed Surratt in Blount v. Clarke, again holding that a presidential commutation moots a collateral attack. (32)

   In dissent, Judge Wynn argued that holding Surratt's case moot was "if not an outright injustice, at least an abandonment of fairness." (33) He rejected the argument that Surratt is no longer serving a judicially imposed but rather an executive sentence because, in his view, neither the Constitution nor caselaw contemplates the existence of an executive sentence. (34) "[T]he part of the sentence that remains after commutation is part of a judicial sentence, not a newly created executive sentence." (35) Since Surratt's sentence would be shorter as a result of a successful collateral attack, his case could not be moot. (36) The dissent further argued that the President cannot wield his commutation authority in such a way that offends separation of powers principles. (37) Finally, Judge Wynn explained that Surratt's case could not be moot as he still had an interest in the outcome; there would be collateral consequences to his conviction even with the commutation. (38) Accordingly, he concluded that the case could not be moot.

   In 2019, the Sixth Circuit reached the opposite conclusion in Dennis v. Term. In Dennis, the Sixth Circuit held that a commutation does not prevent an inmate from collaterally attacking an unconstitutional sentence. (39) The inmate in Dennis had received a commutation of his life sentence to a thirty-year sentence from President Obama on the condition that he enroll in a residential drug program. (40) After receiving his commutation, the inmate collaterally attacked his sentence, asserting that the underlying conviction was flawed and that he should only have been subjected to a twenty-year sentence in the first place. (41)

   Even though the court did not reach a decision on the merits, it did hold that the commutation did not render the case moot...