The Municipal Pardon Power.

• Author: Watanabe, Hayato

At the state and federal levels, the pardon power can be used to restore the dignity and legal rights lost by a criminal conviction. Unfortunately, those facing similar consequences from municipal convictions may not have access to a pardon. Although clemency is exceedingly rare at any level of government, municipal defendants face a unique structural problem that deprives them of the possibility of a pardon. Specifically, many cities have simply failed to create a local clemency power. This Note argues that the authority to grant pardons for municipal offenses is part of the toolbox of powers provided to cities through the doctrine of home rule. Accordingly, cities do not have to wait for the permission of their parent states to create a local clemency power. By failing to advocate for a local interpretation of clemency, cities are missing a valuable opportunity to help municipal defendants overcome the stigma and collateral consequences that accompany municipal convictions. While existing scholarship largely ignores the application of clemency to municipal law, this Note offers a legal framework for reimagining the next frontier of clemency.

TABLE OF CONTENTS INTRODUCTION I. THE INTERSECTION OF MUNICIPAL LAW, CRIMINAL JUSTICE, AND MERCY A. The Contours of Municipal Law B. Municipal Criminal Law and Its Consequences The Importance of Pardons to the Constitutional Order II. EFFECTUATING THE MUNICIPAL PARDON POWER A. The "Municipal Clemency Bind" B. Locating the Pardon Power Within the Doctrine of Home Rule III. THE ADMINISTRATION OF THE MUNICIPAL PARDON POWER A. The Social Imperative to Institute a Municipal Pardon Process B. Municipal Authorities Can Be Trusted with a Pardon Power C. The Responsible Administration of the Municipal Pardon Power CONCLUSION INTRODUCTION

In 2013, a group of reporters descended on San Antonio City Hall eager to document the inauguration of a momentous new tradition in city politics. Mayor Julian Castro looked effusive as he faced reporters and proudly announced the Thanksgiving pardon of a turkey named Drumstick. (1) Yet what feels out of place about Mayor Castro's display of Thanksgiving-spirited clemency is not the absurdity of a mayor pardoning a turkey, but the very thought of a mayor pardoning at all. While the pardon power has become ubiquitous with modern American presidents and governors, the clemency (2) potential of local government has largely gone ignored. (3) This blind spot in the clemency scholarship is detrimental because cities, like the states and the federal government, have the power to foist significant financial and legal consequences on municipal defendants.

In recent years, a public reckoning has exposed how local governments have weaponized broad criminal justice regimes to exploit vulnerable communities. For example, the Department of Justice's (DOJ) report on the Ferguson Police Department revealed that the city's courts and police force operationalized municipal fines to fund the city at the expense of its residents. (4) The DOJ noted that in 2013 alone, over 9,000 warrants were issued in Ferguson for cases involving minor violations like parking tickets and housing code violations. (5) The DOJ also emphasized the personal tolls that this system inflicted on individual residents. One African American woman who was interviewed for the investigation stated that she was forced to endure an Odyssey of court dates, arrests, jail time, and additional fines all stemming from her inability to pay a single parking ticket. (6) Over seven years later, she is still making payments on a fine that has now more than tripled. (7) Similarly, in Chicago, poor residents have struggled with debt accumulated from unpaid parking, traffic, and vehicle compliance tickets. (8) The debt has become so crushing that many residents have turned to bankruptcy for relief. (9) Adding to the dire financial consequences of this situation, Chicago restricts access to municipal jobs and licenses for those with ticket debt. (10)

Recognizing the great weight of municipal offenses, some mayors and mayoral hopefuls have taken decisive steps toward embracing their authority to grant pardons. (11) In May 2018, the Omaha City Council granted Mayor Jean Stothert's request to expand her mayoral pardon power. (12) The City Council's action granted Mayor Stothert the authority to pardon individuals for virtually every criminal offense prosecutable under the Omaha City Code, from failing to restrain a dog to prostitution. (13) Similarly, in March 2019, Kansas City mayoral candidate Quinton Lucas pledged to use the pardon power to "extinguish all stand-alone convictions for minor municipal marijuana violations." (14)

Despite the potential benefits of a pardon process, few cities have created a local clemency mechanism. (15) This means that while practically all state and federal crimes can be pardoned, the prospect of a municipal pardon may be a structural impossibility. In cities where a local pardon power has not been created and where the state is unable to grant relief at the local level, municipal defendants may not have any avenue to relief that is as effective or complete as receiving a pardon. (16) Defendants stuck within this lacuna of state and local law are trapped inside what this Note calls the "municipal clemency bind." Municipal defendants facing the threat of incarceration, fines, and collateral consequences should have the same access to clemency as state and federal defendants.

This Note argues for an interpretation of the clemency power that is grounded in the doctrine of home rule and local police powers. Understanding the pardon power as compatible with home rule will enable and encourage more localities to embrace values of mercy and forgiveness. Part I provides a primer on the organization of local government and the structure of state-municipal sovereignty. Specifically, this Part examines the power that cities have to criminalize offenses, the consequences that these expansive penal powers have for municipal defendants, and the importance of pardons to our criminal justice system. Part II introduces the "municipal clemency bind" and describes the state and local mechanisms that deny defendants access to a pardon process. Part II then provides a solution to this problem by arguing that the municipal pardon power is justified under the doctrine of home rule. Finally, Part III analyzes the administrability of the municipal pardon power and identifies areas where clemency can be used as an instrument to remedy broader social problems.

1. THE INTERSECTION OF MUNICIPAL LAW, CRIMINAL JUSTICE, AND MERCY

   Municipal power has expanded significantly over the last century, becoming an omnipresent force that affects the lives of many residents. The rise of municipal power reflects the shifting dynamics between state and local control. (17) As cities have accumulated power, municipal officials have embarked on ambitious social initiatives that have occasionally challenged the interests and powers guarded by their parent state. (18) Section I.A describes the organization of municipal government and examines how these structures empower or disempower local actors. This Section also explains how cities exercise local control through two different doctrines of statemunicipal sovereignty: Dillon's Rule and home rule. Section I.B catalogs the range of offenses and collateral consequences that stem from municipal criminal law. Section I.C provides a brief overview of the pardon power's importance to our constitutional order.

   1. The Contours of Municipal Law (19)

      Depending on the state constitutional and statutory framework, a multiplicity of local government structures can exist within a single state. The council-manager and mayor-council systems remain the most common structural forms. (20) The council-manager form lodges virtually all power with the city council, which is empowered to pass laws and provide oversight for the general administration of the city through the appointment of a professional manager. (21) In contrast, the mayor-council form divides power between the mayor who is independently accountable to the electorate, and the city council. (22) Mayoral power in these two systems is generally characterized as "strong" or "weak" depending on the authority a city's form vests in the mayor. (23) For example, in mayor-council cities, the mayor may have veto, appointment, and removal powers. (24) In council-manager cities, the mayor is often a de facto councilmember with no independent executive authority. (25)

      Municipal government does not provide a clean analogue to the traditional separation-of-powers doctrine that animates politics at the state and federal level because the functions of various city officials are often intermingled. (26) Nevertheless, some courts have shown a willingness to invalidate mayoral action that appears to encroach on the power of a coordinate "branch." (27) Other courts, however, have questioned the wisdom of mapping traditional separation-of-powers doctrine onto municipal governance. (28) The differences in the structure and division of power within local government affect how intergovernment conflict, corruption, and the general administrability of the municipal pardon power are understood. (29)

      A locality's ability to pursue policies like clemency is also affected by the basic structural relationship between a city and its parent state. "Dillon's Rule" and "home rule" are the two primary models of municipal self-governance that loosely define the level of control afforded to a city. (30) Dillon's Rule, named after Judge John Forrest Dillon, who published one of the preeminent treatises on municipal law, (31) provides cities with only those powers that are "granted in express words," "necessarily or fairly implied in or incident to the powers expressly granted," or truly "essential to the accomplishment of the declared objects and purposes of...