Mississippi Supreme Court Upholds Barbour Pardons

Today's New York Times reports, "Highest Court in Mississippi Upholds 9 Pardons," written by Campbell Robertson.

Bringing a definitive close to the legal controversy that has swarmed since former Gov. Haley Barbour of Mississippi gave pardons to nearly 200 felons in his last days in office, the Mississippi Supreme Court ruled on Thursday that the judicial branch did not have the power to void those pardons.

The court, in a 6-to-3 decision, found that pardon procedures lay outside its constitutional authority, and that to interfere even in cases where those procedures were flouted would violate separation of powers.

While the pardons, which went overwhelmingly to people who had already finished their prison terms, were met with widespread bewilderment and even anger when they were issued in January, the governor’s motives were never legally challenged. But the state attorney general, Jim Hood, began a push to have them thrown out.

At the heart of the debate was Section 124 of Mississippi’s Constitution, which gives pardon power exclusively to the governor, but also requires applicants to have their petitions for pardon “published for 30 days, in some newspaper in the county where the crime was committed.”

Mr. Hood said all but 22 of those pardoned had failed to meet this requirement, rendering their pardons invalid. He challenged them in circuit court, but the State Supreme Court quickly took up the issue.

Lawyers for nine of those pardoned — four who had been working as trusties at the Governor’s Mansion and five who are the only ones still in prison — argued that the courts did not have the authority to determine whether procedures were followed correctly. The Constitution not only gave the governor the power to pardon, they said, but also left it solely to the governor to determine whether they were issued properly.

The court’s majority agreed.

The Mississippi Supreme Court ruling, In Re: Hooker, et al, is available in Adobe .pdf format.

"Mississippi Governor's Pardons Are Upheld," by Timothy W. Martin for the Wall Street Journal.

Mississippi's Supreme Court on Thursday upheld the more than 200 pardons granted by Haley Barbour as he left the governor's office in January, sparking a spirited debate over clemency powers.

The justices ruled 6-to-3 that the 215 pardons and other forms of clemency issued by Mr. Barbour, a two-term Republican, were valid, stating the clemency decisions "may not be set aside or voided by the judicial branch."

The pardons—a corrective against overly harsh sentencing granted to governors and the president—were decisions that "fell to the governor alone to decide whether the Constitution's publication requirement was met," according to the opinion.

The decision follows the death Tuesday of several bills aimed at curbing clemency powers, as measures failed to reach a vote in either the Mississippi House or Senate. Gov. Phil Bryant, who won office in November, has said he wouldn't grant pardons except when there are clear-cut examples of injustice.

"Mississippi high court upholds Barbour pardons," by Rich Phillips at CNN.  There is video at the link.

In a 77-page, 6-3 ruling Thursday afternoon, the court found the pardons "may not be set aside or voided by the judicial branch." Attorney General Jim Hood had argued that no proper notice had been posted in newspapers, but the court found the final decision rested "solely with the governor."

"We are mindful that the victims and their families are entitled to be interested in the subject matter of this case, and they are undoubtedly -- and understandably -- concerned with its outcome," Justice Jess Dickinson wrote for the majority. But in the cases before them, "It fell to the governor alone to decide whether the Constitution's publication requirement was met."

And:

But in a dissenting opinion, Justice Michael Randolph called the decision "a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our state."

Hood argued that the state Constitution required that for a pardon to be valid, notices be filed, each day, for 30 days in newspapers where their crimes were committed. But during a February Supreme Court hearing, Barbour's lawyers argued that previous state court rulings had found the 30-day notice rule was "an unconstitutional encroachment" on the governor's power.

Thursday's ruling is the final word on the case, but Hood said he would seek to get the notice requirement restored to the state charter.

"Barbour on Thursday's pardon ruling," is the full text of a statement issued by the former governor, via WLOX-TV.

"I'm grateful for the decision issued today by the Supreme Court of Mississippi upholding the Governor's constitutional authority to exercise clemency.

In this decision, the Supreme Court has reaffirmed more than a century of settled law in our state. But this was not only about the power of the pardon or even the power of the office, but about the ability of a governor to grant mercy.

As I've stated from the beginning, I recognize and respect the natural feelings of victims and their families and I know this has been difficult for many of them. That is why pardons are always subject to a lot of criticism and are generally unpopular.

Nevertheless, these were decisions based on repentance, rehabilitation, and redemption, leading to forgiveness and the right defined and given by the state constitution to the governor to offer such people a second chance."

"AG says pardon reforms needed," is the Jackson Clarion-Ledger report by Jessica Bakeman.

After Thursday's state Supreme Court ruling that former Republican Gov. Haley Barbour's pardons would stand, Attorney General Jim Hood said he wants to let voters decide whether the judiciary should be able to overturn a governor's pardon.

 Hood challenged the 203 pardons Barbour granted during his last week in office, arguing that they did not comply with a constitutional provision that requires clemency applicants to publish a newspaper notice for 30 days. 

 "I intend to seek an initiative to amend Section 124 of our Constitution to make it very clear that the judicial branch is responsible for enforcing the 30-day notification period in the future," Hood said. "I am calling on all our victims' groups, law enforcement and other volunteers to help me obtain the necessary signatures to place the measure on the ballot." 

After hearing oral arguments Feb. 9, the Supreme Court on Thursday ruled 6-3 in reversing a lower court's decision that had granted Hood a temporary restraining order.

"We are compelled to hold that - in each of the cases before us - it fell to the governor alone to decide whether the Constitution's publication requirement was met," said the majority opinion, written by Justice Jess Dickinson.

The court's ruling not only confirmed the validity of the pardons but also will allow for the release of five pardoned prisoners still being held.

Earlier coverage of the Mississippi clemency controversy begins at the link.  Related posts are in the clemency index.