Amnesties Are Good–Usually. Then There’s Kentucky…

OK. Imagine a place where the ruler and key staff members are suspected of some crimes relating to the administration of government. Rather than face the music, the ruler just pardons everyone in danger of being indicted.

Even Richard Nixon rejected the pardon-everyone strategy. Even Ronald Reagan waited until after they were convicted to pardon constitution-subverters Oliver North and Admiral Poindexter.

But in Kentucky it seems they are either more stupid, more desperate, or more arrogant: via TPM we learn Gov. Ernie Fletcher (R) is going to pardon all his aides who are suspected of patronage hiring in violation of state law.

Gov. Fletcher did not, however, pardon himself. Due to appear before a grand jury tomorrow, Gov. Fletcher said he wouldn’t testify, although he didn’t say whether he’d take the Fifth or simply be in contempt (full text of speech). And there’s talk, although it’s hard to know how serious, of impeachment.

This incident shows how the power of pre-conviction, and especially pre-indictment, amnesty can work harm (here, by removing a way for the public to get at the truth of the accusations). Nevertheless, I remain persuaded that on balance giving the executive branch the power to declare amnesties is a good and necessary thing, a power perhaps not used enough in our over-criminalized society.

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7 Responses to Amnesties Are Good–Usually. Then There’s Kentucky…

  1. Mojo says:

    I wonder how the thousands of people who lost out on jobs to less qualified (but politically connected) candidates or failed to get the promotions they earned or were fired for political reasons feel about their situation being compared to fishing out of season. And how stupid must Dan Druen feel after committing 22 felonies just to cover up a little harmless “noodling”?

  2. Brian Boru says:

    Isn’t it settled law that pardons (or amnesties) are valid only after conviction?

  3. michael says:

    Each state may have different rules for its pardon/amnesty power (if any) residing in the governor. But at the federal level, I don’t think so, as I recall Jimmy Carter amnestied all non-violent Vietnam era draft resisters, including those never prosecuted.

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  5. E-mart says:

    As remarked at BlueGrassReport, the Kentucky Supreme Court, in a 2003 opinion, adopted an interpretation of the Governor’s pardon power that would appear to characterize it as a post-conviction restoration of rights. That seems consistent with the language of Section 77 of the Ky. Constitution, which confers upon the Governor the “power to remit fines and forfeitures, commute sentences, grant reprieves and pardons, except in case of impeachment…”

    Then again, Ford pardoned Nixon pre-indictment. As the court reasoned in Murphy v. Ford (W.D. Mich. 1975):

    The fact that Mr. Nixon had been neither indicted nor convicted of an offense against the United States does not affect the validity of the pardon. Ex parte Garland, 4 Wall. (71 U.S.) 333, 18 L.Ed. 366 (1867). In that case the Supreme Court considered the nature of the President’s Pardoning Power, and the effect of a Presidential pardon. Mr. Justice Field, speaking for the court, said that the Pardoning Power is “unlimited,” except in cases of impeachment. “[The Power] extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. * * * The benign prerogative of mercy reposed in [the President] cannot be fettered by any legislative restrictions.
    “Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punish-ment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots Out of existence the guilt. * * * If granted before conviction, it prevents any of the penalties and disabilities consequent from conviction from attaching.

  6. Michael says:

    They could both be right: there’s no reason why KY’s pardon clause should necessarily have the same extent as the federal one.

  7. E-mart says:

    True, though _Anderson_ discusses its reasoning in parallel to federal precedent:

    In the case of Schick v. Reed, 419 U .S . 256, 95 S . Ct . 379, 42 L . Ed . 2d 430 (1974), the U.S. Supreme Court looked to the common law of England to determine the extent and nature of the President’s pardoning power contained in Article II, § 2, cl. 1 of the United States Constitution…. Likewise, this Court looks to the common law to determine the extent of the Governor’s pardoning power contained in Section 77 of the Kentucky Constitution.

    The argument is there, at least.


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