"the Governor's Court of Last Resort: an Introduction to Executive Clemency in Alaska

• Publication year: 2011

§ 28 Alaska L. Rev. 57. "THE GOVERNOR'S COURT OF LAST RESORT: AN INTRODUCTION TO EXECUTIVE CLEMENCY IN ALASKA

Alaska Law Review
Volume 28, No. 1, June 2011
Cited: 28 Alaska L. Rev. 57

"THE GOVERNOR'S COURT OF LAST RESORT:" AN INTRODUCTION TO EXECUTIVE CLEMENCY IN ALASKA

RONALD S. EVERETT and DEBORAH PERIMAN ^{[*] [**]}

ABSTRACT

This Article details the history of clemency and examines its use inAlaska. It begins by broadly describing the various forms of clemency and traces their evolution from ancient times to the present. After tracing the development of clemency in the United States and the Alaska Territory, the Article shifts its focus to clemency's use during Alaska's statehood. During most of this period, the clemency process has been exclusively within the governor's discretionary powers and has taken place largely behind closed doors. However, in the aftermath of a controversial pardon by Governor Murkowski, Alaska's historical model of clemency has been transformed into a process that makes the exercise of gubernatorial clemency power much morevisible. The Article explains these policy changes, now embodied in section33.20.80 of the Alaska Statutes. Finally, it concludes that while the new procedures correct some of the problems associated with the earlier clemency process, they leave unresolved one of the most critical issues for those seeking pardons - relief from the ongoing stigma resulting from a criminal conviction - and recommends that Alaska policy makers examine additional measures to afford former offenders a better chance for successful reentry into society.

INTRODUCTION

Clemency, the act of mitigating the consequences of a criminal conviction, has been a fundamental feature of criminal justice systems throughout recorded history. The Code of Hammurabi specifically references clemency, ^[1] as does the Old Testament. ^[2]

The term refers to a broad range of post-conviction remedies including full or conditional pardons, remissions of fines, reprieves, and commutations of sentences. ^[3] A full pardon allows the offender to walk away from his or her sentence; a partial pardon relieves the offender of some, but not all of the consequences of conviction. A conditional pardon hinges on the performance or nonperformance of specified acts. ^[4] Pardons may be individual (issued to a specific person) or general (issued to a class of persons). Although pardons are typically sought after conviction and sentencing, a pardon may be issued at any time, even before arrest and prosecution. ^[5] In contrast to the pardon, a reprieve will not allow an offender to escape punishment; it merely postpones it. Commutation of sentence reduces the severity of a sentence; in death penalty states, commutation is typically used to substitute a life sentence for a death sentence. ^[6]

In the Alaska Territory, the history of clemency is the history of frontier development, replete with the kinds of storied characters that have long captured the imagination of armchair travelers. With statehood, executive clemency was written into the Alaska Constitution. Over the ensuing fifty years, clemency developed into an institutionalized, though largely unnoted, part of Alaska's criminal justice system, with each of Alaska's first ten governors awarding grants of clemency. Five years ago that changed dramatically. A controversial pardon by an unpopular governor triggered legislative changes to Alaska's clemency process designed to transform clemency from a private act of executive mercy, largely concealed from public view, into an open government process subject to media and public scrutiny, requiring notice to certain crime victims, and incorporating mandatory investigation of all clemency applications by the state Board of Parole. ^[7] No grant of clemency has been awarded in Alaska since. An informal moratorium on clemency has existed for the last five years as the executive branch seeks to formalize revised procedures that will accord with the statutory changes.

This Article begins with an overview of the history of clemency and how its development and use in Alaska compares to national developments in criminal justice. It then examines the process by which clemency in Alaska has been granted historically and the recent statutory and administrative changes to that process. Finally, it concludes by briefly highlighting a critical question not resolved by Alaska's new legislation-the employability and reintegration of former offenders. ^[8]

I. Overview of Clemency Use and Policy in the United States

A. Foundations of Early American Clemency Law

"Clemency is deeply rooted in our Anglo-American tradition of law" as "the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." ^[9] The oldest recorded code of laws in existence, ^[10] the Babylonian Code of Hammurabi, makes specific reference to principles of clemency, forgiveness, and pardon. Section 129, for example, provided, "If a man's wife be surprised (in flagrante delicto) with another man, both shall be tied and thrown into the water, but the husband may pardon his wife and the king his slaves." ^[11] So, too, does the Old Testament speak of lifting the penalties imposed on a transgressor and welcoming him back into society. Thus, the Book of Jeremiah tells of the King of Babylon releasing the King of Judah from prison and speaking kindly to him, whereupon the King of Judah "put off his prison garments. And every day of his life he dined regularly at the King's table." ^[12]

In English law, the practice of pardon dates back at least as far as the reign of Edmund ii in the tenth century, a period in which there is evidence of grants of royal pardon in "substantial numbers." ^[13] By the Middle Ages, well-defined rules of procedure controlled the clemency process. ^[14] The statutes of 1390 and 1404, for example, outlined distinct administrative stages in the pardon process:

The petition for pardon, having been acceded to by the king and the name of any interceder [surety] endorsed on it by the chamberlain, was sent normally to the keeper of the privy seal whose warrant took it to the chancery where, if it was an individual pardon, it was engrossed by one of the two crown clerks there. . . . on occasion the king gave instructions for the drafting of a pardon to the chancellor by word of mouth. The grantee paid a standard fee into the hanaper [treasury], pleaded the pardon before the justices and gave the clerk of the court a pair of gloves or the value thereof as payment for its enrolment in the record. The pardon was then proclaimed. ^[15]

The early English law also recognized benefit of clergy, a means of avoiding execution of sentence not dependent on exercise of the king's prerogative. ^[16] In general terms, benefit of clergy relieved an offender of the consequences of conviction when he or she was able to recite a particular passage of the Bible calling upon God's mercy. ^[17] Originally available only to clerics, ^[18] the practice over time was extended to offenders sufficiently literate to read the verse (at the time an elite and limited class of offenders) and gradually to any offender able to memorize and recite it. ^[19] The standard text was Psalm 51, which begins "Have mercy on me, O God." ^[20] Eventually, this became known as the "neck verse," in that it could be used to avoid hanging. ^[21] The offenses for which benefit of clergy could be claimed varied over time but at common law generally excluded high treason, petit larceny, and misdemeanors. Non-clerics were allowed benefit of clergy only once. Accordingly, these offenders, once admitted to the benefit of clergy, were typically branded on the left thumb "with a hot iron" in order to prevent a subsequent claim of the privilege. ^[22]

By the time Blackstone wrote his great Commentaries on the Laws of England, ^[23] English clemency practices had devolved into the distinct categories recognized today-chapter thirty-one of the Commentaries described the distinction between reprieve and pardon and detailed the grounds for each. ^[24] Then, as now, a reprieve was a way of avoiding execution of a judgment temporarily; the pardon was permanent. ^[25]

In Blackstone's day, reprieve was available in a variety of circumstances. These circumstances included when an offender became non compo (incompetent or insane) between conviction and execution of the judgment, or in the case of a woman sentenced to death, pregnant. ^[26] A reprieve may be "ex necessitate legis: as where a woman is capitally convicted and pleads her pregnancy: though this is no cause to stay the judgment, yet it is to respite the execution till she be delivered." ^[27]

The pardon was within the discretion of the king; such grants were "the most amiable prerogative of the crown." ^[28] By statute, however, Parliament removed certain offenses from the king's power to pardon. offenses in the nature of private injuries rather than public wrongs were outside the king's pardon power, as the suits were deemed "not of the [K]ing but of the party injured." ^[29] Nor could the king pardon a common nuisance so long as the nuisance remained "unredressed." ^[30]

The pardon procedure and the legal effect of a pardon were similarly well-established by this period. A complete pardon had legal effect only if granted under the "great seal." ^[31] Any falsehood or suppression of truth made in the petition voided the charter of pardon. Certain crimes...