To say I was surprised when I read the Governor’s email message (I am on the Governor’s email list not because he knows me but I signed up to get the messages. I get a lot of propaganda but some useful information and this is one example.) about the mass restoration of civil rights (except firearm rights) to 206,000 felons who have completed their sentences and any probation/parole and paid fines and costs is an understatement.
In fact, my first thought was: Can McAuliffe do that? So I looked at the state constitution (after reading some of the early criticism of the executive order from Republicans) to see what it says. Let’s ask the question: WWSD: What Would Scalia Do? The future patron saint of judges would look to the text of the constitution first.
Here is Article V, Section 12 of the Virginia Constitution:
Article V. Executive
Section 12. Executive clemency
The Governor shall have power to remit fines and penalties under such rules and regulations as may be prescribed by law; to grant reprieves and pardons after conviction except when the prosecution has been carried on by the House of Delegates; to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution; and to commute capital punishment.
He shall communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same.
I do not see any requirement of a request first nor does it prohibit the use of executive clemency for a class of cases.
I actually called for a class of gay felons to receive a pardon because it was inherently unfair that soliciting straight sex is a misdemeanor (because consensual sex between adults is a misdemeanor and soliciting for a misdemeanor is a misdemeanor) but soliciting gay sex is a felony because of the old sodomy law was a felony and soliciting for a felony is – you guessed it – a felony! (If I find the link I’ll link to it but it might have been at the now defunct blog Conflicted Libertarian!) There is no question in my mind a governor could pardon a entire class of convicted persons for whatever reason he or she wants to (except maybe a bribe perhaps) as long as he notifies the next session of the General Assembly.
Could Governor McAuliffe clear death row if he chose? Well, yes he can. I could find no statute saying the governor cannot do so. From Article II, Section 1, paragraph 1 (concerning the right to vote):
No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.
It does not say how the governor can act. And there is no statute limiting the executive clemency power (and such a law would stand on dubious ground as a violation of the separation of powers or the exclusive power of the executive to issue clemency) to only those cases where a request is made.
Not this statute (Code Section 53.1-231) either:
§ 53.1-231. Investigation of cases for executive clemency by Parole Board.
The Virginia Parole Board shall, at the request of the Governor, investigate and report to the Governor on cases in which executive clemency is sought. In any other case in which it believes action on the part of the Governor is proper or in the best interest of the Commonwealth, the Board may investigate and report to the Governor with its recommendations.
The Parole Board is not required to act before the Governor can issue executive clemency neither does this statute require a request. Nor did I find limits in Title 53 of the Virginia Code on the Governor’s power.
Now I am also on Senator Obenshain’s email list (I might be on another list after this blog post but that is another story) and the senator cites a letter that the counsel for Governor Kaine with a constitutional objection. Here is the letter in its entirety.
But the letter does not say what it is cited to say (from the Obenshain statement):
“It is clear that the Governor has overstepped his statutory and constitutional authority by signing this executive action, which automatically restores civil rights to over 200,000 convicted felons. Democrat and Republican Governors dating back more than 30 years have researched this issue and all have concluded that they do not have the sweeping executive authority the Governor has sought to exercise today. Even Governor Kaine reached this conclusion, which his counsel explained in a detailed letter sent to the ACLU on January 15, 2010. As Governor Kaine’s counsel explained, absent an amendment to the Virginia Constitution, a Governor cannot do what this Governor did today. This is the kind of unconstitutional executive overreach that we have seen all too often in Washington. We deserve better from a Governor of Virginia.
“While I do support a streamlined process to restore civil rights, the Governor has gone too far. I cannot endorse the Governor’s sweeping and unconstitutional action today. The Governor restored rights without any regard to the seriousness or violent nature of the crimes committed, whether these individuals have paid their court costs in full, whether they have stayed out of trouble since their release, or most importantly, whether they have paid restitution to the victims. The action today by the Governor fails to respect victims of crime, the rule of law and is clearly unconstitutional.”
But no provision nor case is cited in this statement. The letter actually says this:
“First, while the wording of the constitutional provision granting the powers of clemency and restoration of rights might be read to support the blanket use of these powers to benefit unnamed individuals, we think the better argument is that these powers are meant to apply to named individuals for whom a specific grant of executive clemency is sought. A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers. And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.
Now I agree this order is troubling. How does a felon determine if he or she can legally vote? Where would such a conscientious person go to determine that? What about a registrar of voters seeking to determine if a person before him or her can legally register to vote? It would seem to me that the better idea would be to say: Clemency is available and if you ask for it and meet the criteria, apply and it will be granted automatically.
But that is a political not a constitutional argument. If we accept that the clemency power of a governor is plenary and I suggest it is exactly that than we must accept the legal validity of the order. This order does not solve the constitutional provision permanently removing the right to vote for felons in the future.
I suggest that the Supreme Court of Virginia has held the governor’s powers are plenary. See Wilborn v. Saunders, 170 Va. 153, 195 S.E.723 (1938):
“By the Constitution of Virginia, the governor is empowered to grant reprieves and pardons after conviction, except when the prosecution has been carried on by the house of delegates, and to remit fines and penalties in such cases and under such rules and regulations as may be prescribed by law. He is also empowered to remove political disabilities consequent upon conviction for offences, and to commute capital punishment. Const., Art. IV, sec. 5.
“It will thus be seen that certain restrictions are here imposed upon the exercise of the pardoning power which are not found in the laws of England or of the United States. But subject to these restrictions, the effect of the governor’s pardon must be determined by the same rules which apply to a pardon by the British crown or by the president of the United States.” Edwards Commonwealth, supra.
And what did our Supreme Court say about the Crown’s pardoning power? It was plenary and at first the Governor’s power in the Commonwealth was not plenary but was gradually increased in subsequent state constitutions:
Prior to the independence of the thirteen former British American colonies, the power to exercise executive clemency lay within the prerogative of the crown. 5 William Blackstone, Commentaries *395–96. After the American Revolution, as part of a general reaction against the unfettered exercise of executive power, Virginia and seven other newly-independent states restricted the exercise of that power to the Governor with the concurrence of an advisory board or council of some kind. The original 1776 Constitution of Virginia granted the Governor the “power of granting reprieves or pardons” but only “with the advice of the Council of State.” The Governor was not given the power to act alone in granting reprieves and pardons until adoption of the Constitution of 1851. In the constitutional revision of 1870, the Governor was given the additional power to “remove political disabilities consequent to conviction of offenses.” 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia, 641–42 (1974).
Gallagher v. Commonwealth, 732 S.E.2d 22 (Va. 2012)
Now force the issue of the details and embrace it. Discuss how Governor McDonnell started the process of liberalizing clemency and restoration of rights. There is an excellent article at Bearing Drift by J. R. Hoeft on the McDonnell clemency legacy (Hoeft disagrees with me on the Governor’s action however).
Suggest that the governor limit his order and streamline the requests to ensure a proper voting roll for each election. And say to those felons newly enfranchised: Here’s why we hope you will vote for our candidates. But let’s not offend them at the getgo.
Article written by: Elwood "Sandy" Sanders