Feb 8 (Reuters) - The legal battle over former
Mississippi Gov. Haley Barbour's last-minute raft of pardons
will take center stage Thursday morning, when the state's
Supreme Court will be asked to block a wave of pardons issued
during his final days in office last month.
The Mississippi attorney general, Jim Hood, has filed a lawsuit claiming that many of the approximately 200 pardons are
invalid because not enough public notice was given to the
communities where the crimes were committed.
Lawyers for each side will present oral arguments early
Thursday in a dispute that raises complex legal questions about
the principle of separation of powers -- and about the limits of
executive and judicial authority.
Legal questions aside, a fierce public debate over clemency
broke out almost immediately after Barbour pardoned the
convicts, including five men serving life sentences, four of
them for murder, who worked at the governor's mansion on prison
work release doing domestic duties.
Barbour, a conservative Republican who considered running
for the White House last year, has defended the pardons, saying
the people receiving them had redeemed themselves, and he
accused Hood of trying to score political points.
Barbour's attorneys, along with defense lawyers for several
of the pardoned felons, have made a more technical argument. In
court papers, they say the governor's power to grant pardons
cannot be reviewed by the legislature or the judiciary.
Therefore, they say, the court has no authority to reject
Barbour's pardons, whether or not the constitutional provision
was met requiring notice of pardons to be published in a
newspaper for 30 days beforehand.
"This appeal implicates nothing less than the fundamental
structure of our Constitutional Government," wrote Thomas
Fortner, a lawyer representing four pardoned defendants, three
of them for murder convictions.
But according to Hood, the question is simple: Did Barbour's
pardons meet explicit constitutional requirements? The
governor's power to decide whether to pardon someone on the
merits may be absolute, Hood argues, but he can only put that
authority into practice in compliance with the state
"This court has repeatedly, and for good reason, held that
the Governor is not above the law and his acts are reviewable,"
Hood's brief asserted.
Like many states, Mississippi allows its governor to issue
pardons with virtual impunity. The state constitution imposes
only a few limits: no pardons may be granted before conviction
or for impeached officials; any pardons for treason or any
remittances of forfeitures in criminal cases require approval by
the Senate; and all pardons must be preceded by 30 days of
In his brief for the pardoned defendants, Fortner argued
that the state constitution's framers could have included an
explicit system of review to enforce the 30-day notice
provision, as they did by designating the Senate to review
pardons for treason and forfeitures.
Fortner also contended that the notice provision is a
procedural requirement, and that failing to follow it amounts to
"harmless constitutional error."
But Hood relied in part on 19th-century newspaper accounts
to argue that the notice provision was intended to protect
against executive abuse, and that the court is within its rights
to enforce it.
"The framers considered the provision so significant that
they waged two floor fights over it at the 1890 Convention,"
Hood's brief argued. "The Governor's self-interested questioning
of the wisdom of the requirement is irrelevant. The Constitution
is the Constitution, the law is the law, and a rule is a rule."
Hood pointed out that the constitution also provides no
specific review for a pre-conviction pardon, creating the
possibility that a governor could pardon a murder defendant
during trial without any review by the courts.
"The general rule is clear: the wisdom of a pardon is not
reviewable, but the Governor's compliance with the
constitutional limitations on his pardon power is," Hood's
'51 SYSTEMS OF CLEMENCY'
Some legal observers say Mississippi's pardon dispute can be
traced to vagueness in the state constitution itself.
"This whole issue forces an examination of what is in the
constitution and its lack of clarity," said Michele Alexandre, a
law professor at the University of Mississippi. "The failing
here starts with the constitution."
For example, the parties are arguing over whether publishing
notice in a weekly paper for four consecutive weeks counts as
Historically, federal and state courts have been exceedingly
reluctant to impose any limits on executive pardon power, said
Dan Kobil, a law professor at Capital Law School in Ohio who has
The closest comparison to the current lawsuit is when
Richard Celeste, a Republican governor of Ohio, issued several
commutations and pardons just before leaving office in 1994. A
Democratic attorney general, Lee Fisher, challenged the move in
court, saying Celeste failed to follow a state constitutional
provision that required him to seek the advice of a parole
board, even though he was not bound to follow it.
Celeste's attorneys argued that the provision was merely
procedural, but the Ohio Supreme Court invalidated one of the
pardons based on the constitutional requirement.
Of course, there are "51 systems of clemency" in the United
States, Kobil said, and only the Mississippi constitution is
"If (the court's ruling) hinges on the express language of
the constitution, I think the attorney general has the better of
it," Kobil said.
(Reporting by Joseph Ax)
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