Vol. 4, No. 3, Pg. 18. Pardon Me, Please: A Review of Executive Clemency in South Carolina.

• Author: By Richard P. Stroker

South Carolina Lawyer

1992.

Vol. 4, No. 3, Pg. 18.

Pardon Me, Please: A Review of Executive Clemency in South Carolina

18Pardon Me, Please: A Review of Executive Clemency in South CarolinaBy Richard P. StrokerGenerally, a pardon is an action of the executive branch of government that may operate in two ways. First, it relieves an individual from the punishment that has been inflicted on him or her as a result of a particular criminal act. Second, it restores civil rights that the individual may have lost as a result of conviction. 67A ca, Pardon and Parole § 3; see also 1954-55 Op. Att'y Gen. 220.

The granting of a pardon is not a matter of right but is, as the South Carolina Supreme Court has stated, "a matter of grace bestowed by the government through its duly authorized officers or departments." Bearden v. State, 223 S.C. 211 at 215; 74 S.E.2d 912 at 915 (1953).

This article will review South Carolina law on pardons and other forms of executive clemency, consider the effect that the granting of a pardon has in this state, and discuss current methods and practices in this area of the law.

Executive Clemency Concepts

Clemency is the authority of the sovereign to exercise mercy towards one convicted and sentenced for the commission of a criminal offense. Executive clemency refers to a power exercised by the executive branch of government and conferred by the people through constitutional provisions.

A pardon is a form of clemency, but clemency also includes reprieves, commutations and parole. A reprieve (in some jurisdictions called a reprise) is the postponement to a later date or suspension of the execution of a sentence. In South Carolina only the governor may grant a reprieve (Constitution of South Carolina, 1895, as amended, Article IV, § 14), and reprieves are limited to death penalty cases. 1981 Op. Att'y Gen. No. 81-86, at 111. See also State v. Harrison, 122 S.C. 523; 115 S.E. 746 (1923). The South Carolina Supreme Court has indicated that courts should not question the reasons for a reprieve, which is entirely within the executive's perogative. State v. Harrison.

A commutation of sentence is a form of executive clemency that involves the change of a punishment to a less severe punishment. Under South Carolina law, the governor can commute a sentence of death to a sentence of life imprisonment. However, Eder S.C. Code Ann. § 16-3-20, amended in 1985, the commuted eath sentence is a life imprisonment without possibility of parole.

Section 24-21-910 allows but does not require the governor to refer petitions for reprieve or commutation of sentence to the Probation, Parole and Pardon Board of South Carolina (the Board). If these matters are referred to the Board and the governor elects not to act in accordance with the Board's recommendations, the governor must submit his or her reasons for not doing so to the General Assembly.

Parole is a conditional release from imprisonment that allows an offender to complete the incarceration portion of...