Last week the Oregon Court of Appeals ruled that Governor Kate Brown had the legal authority to grant clemency to more than 1,000 people convicted of crimes in her state. Brown issued her mass clemency in 2020 and 2021 to inmates who had been temporarily released for medical reasons during the early COVID-19 outbreak or enlisted to fight Oregon’s horrific wildfires in Fall 2020.
Oregon Public Broadcasting reports that the beneficiaries the governor’s action also included “73 people convicted of crimes such as murder, assault, rape and manslaughter while they were younger than 18.”
The suit against Brown was brought by two district attorneys and several crime victims who alleged that the governor had exceeded her authority and not given prior notification to them as required by state law. The suit also claimed that Brown abused her authority by failing to make individual determinations about the merits of each clemency case and ignoring procedural steps in the clemency process.
The Oregon court rejected those contentions and the efforts to limit the clemency power. Its decision recognized, in sweeping terms, the breadth of the governor’s power to issue pardons and commutations.
In doing so, it joined a long line of judicial decisions that affirm the authority of governors and the President of the United States to grant clemency for “good reason, bad reason or no reason at all.”
The court conceded that Governor Brown’s clemency had stirred up what it called “a palpable emotion” from people who “feel that they have been denied justice,” but assigned responsibility for controlling its exercise to the democratic process.
The Oregon Court of Appeals also held that the “broad power of clemency” is only subject to “such restrictions and limitations as the Governor thinks proper.” That is why “The power to pardon, sitting within a singular executive…has,” as the court put it, “always been controversial, seemingly at odds with legislative determination and judicial decision-making.”
The court reviewed clemency’s history dating back to English practices that antedated the American Constitution. It noted that “Oregon’s constitutional clemency power…cannot be understood outside this larger historical context” and traced the breadth of the governor’s clemency power to the “centuries old understanding that ‘the king may extend his mercy on what terms he pleases.’”
That power clearly included granting mass clemencies of the kind Governor Brown issued. The court offered numerous examples dating back to President George Washington’s mass pardon in 1795 of participants in the Whiskey Rebellion.
The Oregon court rejected the plaintiffs’ contention that the governor could not issue mass commutations without specific legislative authorization to do so. It stated that in Oregon’s history “there has never been an attempt to substantively regulate the Governor’s pardon power.”
This conception of clemency is continuous with a line of cases going back to the first United States Supreme Court case on clemency in 1833.
That case, United States v. Wilson, brought to the Court President Andrew Jackson’s pardon of a robber who had been sentenced to death and the question of what happened when Wilson, for breathtakingly inexplicable reasons, “did not wish in any manner to avail himself, in order to avoid the sentence in this particular case, of the pardon referred to.”
Chief Justice John Marshall found little in America’s own nascent legal tradition to help resolve the issue and made recourse to the “principles” and “rules” of English law. He described a pardon of the kind rendered by Jackson as “an act of grace, proceeding from the power entrusted with the execution of the laws….”
This grace is, Marshall wrote, freely given or withheld, finding its only home, as William Blackstone once put it, in “a court of equity in …[the President’s] own breast.“
Yet, using the offer and acceptance idiom of modern contract law, he said that when a pardon is rejected by the person to whom it is “tendered” it cannot be valid: “We have discovered no power in a court to force it on him.”
Just over twenty years after Wilson, the Supreme Court called the President’s power to grant pardons or reprieves an “attribute of Deity whose judgments are always tempered with mercy.”
In 1866, the Supreme Court again took up the President’s power to pardon, this time upholding President Andrew Johnson’s grant of clemency to a confederate legislator. Johnson pardoned him “for all offences…committed, arising from participation, direct or implied, in the said Rebellion.”
The issue before the Court in that case was whether Johnson’s clemency exempted its recipient from being subject to an act of Congress requiring persons wanting to practice law to swear that they had “not yielded a voluntary support to any pretended government, authority, power, or constitution, within the United States, hostile or inimical thereto.”
Referring to the President’s pardon power, Justice Stephen Field said, “The power thus conferred is unlimited, with the exception [in cases of impeachment]. It extends to every offence 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. This power of the President is not subject to legislative control.”
Lest one think that the Oregon court’s expansive conception of the clemency power is merely a relic of a bygone era, this view was reaffirmed by the Supreme Court in 1998.
In Ohio Adult Parole Authority v. Woodard the Court heard a challenge to the longstanding view that clemency could not be subject to due process standards applicable to other executive and administrative acts.
Chief Justice William Rehnquist, echoing John Marshall, found that “The process respondent seeks would be inconsistent with the heart of executive clemency, which is a grant of clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehensible by earlier judicial proceedings and sentencing determinations.”
Rehnquist wrote that “the executive’s authority would cease to be a matter of grace committed to the executive authority if it were constrained by the sort of procedural requirements that respondent urges.”
Following in this tradition, the Oregon Court of Appeals said last week that the clemency power is a “plenary” power and “As such it is ‘not within judicial competency to control, interfere with, or even to advise the Governor when exercising his power to grant reprieves, commutations and pardons.’”
The court rightly recognized the limits of its own authority in matters of clemency and that the authority over clemency rests with the people.
It is the people’s responsibility to ensure that the clemency power does not fall into what Supreme Court Justice Robert Jackson once called “irresponsible and unscrupulous hands.” As the Oregon Court of Appeals put it, “Ultimately, it is the voters, not the courts, who hold the power to limit gubernatorial clemency actions.”