Ruminations
| Publication year | 2019 |
| Pages | 12 |
The Pardon
Paul S. Gillies, Esq.
Section 20 of the Vermont Constitution endows the Governor with “the power to grant pardons and remit fines in all cases whatsoever, except in treason in which he shall have power to grant reprieves, but not to pardon, until after the end of the next session of the General Assembly; and except in cases of impeachment, in which he shall not grant reprieve or pardon, and there shall be no remission, or mitigation of punishment, but by act of legislation.”
A pardon, like grace, is unearned mercy.[1] A criminal conviction, like sin, is a mark not easily erased. People seek pardons to remove the stigma of the conviction. Some religions believe grace is available to everyone. Pardons are not. More are denied than granted. Universalist preacher Hosea Ballou treated justice and mercy as opposites, in his Treatise on Atonement (1812).[2] Atonement suffices with Rev. Ballou; atonement is insufficient alone to justify a pardon.
The history of pardons in Vermont invites the question, what justifies a pardon? The Constitution leaves this decision up to the Governor, without standard or direction. History provides some answers, but the record is often limited to little more than that a petition was fled and subsequently granted or denied, without explanation. The Supreme Court has described Article 20 as providing “latitude for humane considerations.”[3] But humane considerations are not always enough.
There are full pardons and conditional pardons. Full pardons today are usually granted solely to those who have completed the terms of their punishment, been released from their incarceration, paid their fines. Conditional pardons may be granted while the person is still in a correctional facility. Parole and probation are forms of conditional pardons.[4]
Judge Stephen Royce once stated that guilt of a crime “should only be expiated by punishment or pardon.”[5] But does a pardon expiate? There are many unanswered questions.
Punishment
Justice must be expedient. Before Vermont built its state prison, opened in 1807, there were county and town jails, but no facilities for long term confinement, thus, the medieval practices of corporal punishment—ear removals, brandings on foreheads with letters, the sting of the whip, fines, or banishment. Once the state prison was built, life there guaranteed a perfect misery for the inhabitants.[6] Although rarely mentioned, the nature of the punishment must have served as a factor in the decision to grant a pardon, as pardons in the nineteenth century were granted before the sentence was completed, particularly when the health of the convict was in jeopardy. Those are called compassion pardons.
But the most essential criterion was penitence. Penitence means admitting guilt and regretting the offense to the state, and it must be sincere.
Philosophy
Vermont’s own Nathaniel Chipman wrote that “The world is more indebted to the Marquis Beccaria, for his little treatise on Crimes and Punishments, than to all other writers on the subject.”[7] Beccaria was an eighteenth-century Italian criminologist and writer who wrote of pardons,
It is indeed one of the noblest prerogatives of the throne, but, at the same time, a tacit disapprobation of the laws. Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue that ought to shine in the code, and not in private judgment. To shew mankind that crimes are sometimes pardoned, and that punishment is not the necessary consequence, is to nourish the fattering hope of humanity, and is the cause of their considering every punishment inflicted as an act of injustice and oppression. The prince in pardoning gives up the public security in favour of an individual, and, by his ill-judged benevolence, proclaims a public act of impunity. Let, then, the executors of the laws be inexorable, but let the legislator be tender, indulgent, and humane.”[8]
Even though the constitution gave the pardoning power exclusively to the executive branch, the Vermont legislature granted pardons in the early years.
Chipman believed, with Beccaria, that proportionality between the crime and its punishment was essential. In his 1833 Principles of Government, Chipman wrote, “The punishment ought never to exceed, but to rather fall short of the demerit of the crime in the sentiments of the people. Where this is the case, humanity is engaged on the side of the law, and the punishment has a much more powerful effect than severity in the prevention of crimes.” Punishment is not vengeance; it is corrective; “the sole end of punishment is, or ought to be, the prevention of crimes.”
It is universally true, that certainty of punishment has a much more powerful effect than severity in the prevention of crimes. Indeed, the resentment and contempt of mankind, which always pursue the perpetrator of a crime, if not converted into compassion by the severity of the law, constitute a punishment of no inconsiderable efficacy.[9]
Chipman quoted a British politician who said, “What men know they must endure, they fear; what they think they may escape they despise. The multiplicity of our hanging laws, has produced these two things; frequency of executions and frequent pardons. As hope is the first and greatest spring of action, if it was so, that out of twenty convicts one only was to be pardoned, the thief would say, ‘why may not I be that one?’ But since, as our laws are actually administered, not one in twenty is executed, the thief acts on a chance of twenty to one in his favor; he acts on a fair and reasonable presumption of indemnity; and I verily believe, that in the hope of indemnity is the cause of nineteen in twenty robberies that are committed.”
Too harsh punishment and justice is undermined. Too many pardons and justice is destroyed. So there must be grounds and limits. There must be balance and restraint.
Magic Words
Former State Archivist Gregory Sanford studied Vermont’s experience with pardons, based on a review of over 200 petitions for pardons from the nineteenth century. He was looking for patterns, to see what worked and what didn’t. He found only five pardons granted to convicts who claimed they were innocent. Acknowledgment of guilt was a necessary prerequisite. Claiming wrongful conviction also worked against the request, but having the support of officials or relatives whose petitions included certain “talismanic” words, such as “honest and industrious,” in describing the convict’s character, were common in successful petitions.
Sanford quoted a letter from the state prison warden from 1841 who explained “the Gov. wished to know what their conduct was before they came, whether there were any mitigating circumstances in regard to their crimes, what was the probability that they would be useful or rather not dangerous in [the] community, if set at liberty.”[10] That would have been Governor Charles Paine, the first to leave a record of how he reached a decision to grant a pardon.
Converting Traitors to Patriots
The first Vermont pardon was issued by Governor Thomas Chittenden on June 3, 1779. This proclamation relieved all persons who had previously aligned themselves with New York and openly opposed the nascent State of Vermont from all public offenses, crimes, and misdemeanors committed since January 15, 1777, the date of the state’s Declaration of Independence. The Governor did not act alone. Executive powers under the first constitution were shared with a Council of twelve members elected at large, who approved the proclamation, designed to knit the various factions of the state together. The Governor blamed New York for assuming a “Pretence of Power” that was “never derived from God or Nature,” imposed on the “credulous, whereby a Number have been traduced to follow their pernicious Ways.”[11]
Chittenden’s proclamation was echoed by a law adopted in New York in 1782 granting pardons for all treasons and conspiracies by residents of what New York called the “northeastern part of this state,” including capital crimes, but not treason or murder, saying those who sought to create an independent Vermont “were seduced and misled, by artful and designing men, from their duty and allegiance to this state.” The law explained that the pardons were granted because the New York legislature was “disposed to extend mercy.”[12]
These early pardons had a larger social purpose than the prevention of crime or the rehabilitation of the individual. They served as essential repairs to the fabric of the community, a knitting together of a state of its disparate populations. The Oath of Allegiance had a trans formative impact.
Legislative Assumption of the Pardon
Beginning in 1782, pardons were issued by the legislature, and approved by the Governor and Council, as legislative acts. The General Assembly had no express constitutional power to grant pardons, but for the first 50 years the legislature frequently acted as if it did. But then it took two generations before the legislature stopped acting as if it enjoyed the powers of all three branches. It even “adopted” the Vermont Constitution by acts of legislation in 1778 and 1786 following each of the first two constitutional conventions.[13] In those 50 years, each of the branches came to realize the extent (and in the case of the legislature the limit) of their authority under the constitution. The judiciary exercised judicial review. It voided legislation that intruded into the judicial function, such as laws ordering new trials, suspending civil process, and ordering evidence to be admitted in court.[14] The executive function grew, as there were more laws to enforce, more criminal laws, more punishments, and more petitions for pardons.
There were individual acts of pardon. In 1782, an act discharged Seth Smith from an...
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