Pardons Experience

Mr. Martin was the pardon attorney for Governor Mike Foster during the governor's second term. He reviewed hundreds of pardon recommendations to assist Governor Foster in deciding what pardons to grant. He also worked closely with the Pardon Board and the Department of Corrections with all aspects of the pardon and parole process and worked with the legislature on pardon-related legislation.

He prepared the following paper to summarize pardon law. This paper is provided for informational purposes only, and is not intended to serve as legal advice; you should consult an attorney to answer any specific legal questions you may have.

You can read the .html version below, which has links to all cited statutes, both state and federal.

Pardon Me!

By signing an executive pardon, the governor can, with the stroke of a pen, let a convict out of jail, cut his sentence in half, or free him from onerous restrictions on his rights as a citizen. This presentation will survey the historical and legal authority of an executive to grant clemency, the rights that are restored by clemency, and the process by which clemency can be sought and obtained in Louisiana.

The author is a former assistant district attorney and currently serves as the assistant executive counsel to the governor. As such, he is responsible for reviewing and making final recommendations to Governor Foster on pardon applications coming before the governor. However, the opinions represented herein are those of the author and do not necessarily reflect the views, positions, or opinions of the State of Louisiana, the Board of Pardons, or Governor M.J. “Mike” Foster, Jr. This presentation was originally made to the Louisiana District Attorneys Association Fall Conference in November, 2001.

This paper is NOT A SUBSTITUTE for legal advice. Although every effort has been made to assure its accuracy as of November 2001, you should consult an attorney to determine how the various pardon laws apply to your particular situation. Also, the paper has not been updated since it was presented in November 2001, and any changes to the law since that time will not be reflected herein. The author makes no warranty about the accuracy or completeness of the information contained herein.

Outline

  1. Definitions (from Black’s Law Dictionary, 7th ed. 1999)
  2. Louisiana Pardon Power - Overview
  3. Executive Pardons
  4. First Offender Pardons
  5. Pardon Board Procedures

1. Definitions (Black's Law Dictionary, 7th ed. 1999)

1.1. Clemency: Mercy or leniency; esp., the power of the President or a governor to pardon a criminal or commute a criminal sentence.

1.2. Commutation: The executive's substitution in a particular case of a less severe punishment for a more severe one that has already been judicially imposed on the defendant.

1.3. Pardon: The act or an instance of officially nullifying punishment or other legal consequences of a crime. * A pardon is usu. granted by the chief executive of a government…

1.4. Reprieve: Temporary postponement of the execution of a criminal sentence, esp. a death sentence.

2. Louisiana Pardon Power - Overview

2.1. History: The governor's pardon power derives from the Common Law of England. "The pardoning power has always been construed in this State in the same manner as in England. 'The term being derived from the Common Law of England, must have the same import in our Constitution and laws which belongs to it in England.'" State v. Lee, 132 So. 219 (La. 1931), quoting McDowell v. Crouch, 6 La. Ann. 365.

2.2. Executive Pardon: "The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses." La. Const. Art. 4, § 5(E)(1).

2.3. First Offender Pardon: "However, a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, … never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor." La. Const. Art. 4, § 5(E)(1).

2.4. Board of Pardons: "[The Board] shall consist of five electors appointed by the governor, subject to confirmation by the Senate. Each member of the board shall serve a term concurrent with that of the governor appointing him." La. Const. Art. 4, §5(E)(2).

2.5. Appeals: "No person shall have a right of appeal from a decision of the board of pardons or the governor regarding clemency." LSA-RS 15:572.6. In the absence of a statute mandating criteria for commutations, the decision of a board of pardons to deny an inmate's application is not reviewable by the courts; applicant has no constitutional right to obtain a statement of reasons for the denial. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981).

3. Executive Pardons

3.1 Fundamental Effect: The fundamental effect of a full pardon, issued by the Governor upon recommendation of the Board of Pardons, is to wipe away every effect of the convictions pardoned and to restore the pardoned man to a state of innocence. "'A pardon is supposed to be granted to one who has been improperly convicted, or who has sufficiently expiated his offense. … [A] pardon gives to the person in whose favor it is granted a new character and makes of him a new man. When extended to him in prison, it relieves him and removes his disabilities; when given to him after his term of imprisonment has expired, it removes all that is left of the consequences of conviction.'" State v. Lee, 171 So. 219 (La. 1931), quoting State v. Baptiste, 26 La. Ann. 134. "'[W]hen the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense.'" State v. Adams, 355 So.2d 917 (La. 1978), quoting Ex Parte Garland, 71 U.S. 333, 380, 18 L.Ed. 366 (1866).

Delmar Saved from O Brother Where Art Thou

Pete: "The preacher said [our baptism] absolved us."
Everett: "For him, not for the law."
Delmar: "But there was witnesses seen us redeemed."
Everett: "That's not the issue, Delmar. Even if it did put you square with the Lord, the state of Mississippi is a little more hard-nosed."
O Brother Where Art Thou?
A film by The Coen Brothers
© 2000 by Touchstone Pictures

3.2 Commutation power is absolute: The governor has unrestricted authority to reduce any aspect of a sentence. "Once [the pardon board's recommendation] is received, the Governor has unlimited discretionary power to commute an applicant's sentence." Gaillard v. Cronvich, 269 So.2d 231 (La. 1972) (holding in a habeas corpus proceeding that governor had authority to change a consecutive sentence to a concurrent one). Any criminal statute attempting to prohibit commutation of sentence is unconstitutional. State v. Chase, 329 So.2d 434 (La. 1976), and cases cited therein. The governor can even pardon someone convicted of contempt of court. State of Louisiana ex rel. W. Van Orden v. C.S. Sauvinet, Civil Sheriff, 24 La.Ann. 119, 1872 WL 7251 (La. 1872).

3.3 Disclosure of conviction: A common question posed by pardoned persons is how they should answer the question: "have you ever been convicted of a felony?" Lamentably, there is no easy answer, and it may well depend upon the context in which the question is asked. Despite its several powerful cases declaring the absolute power of the pardon, the Louisiana Supreme Court has, at least in one case, stepped back from such sweeping pronouncements when it comes to disclosure. There have been no cases dealing explicitly with these issues on a general basis.

3.3.1 On the witness stand: In State v. Boudreaux, 61 So.2d 878 (La. 1952), defendant took the stand and was asked by the prosecutor whether he had ever been convicted of a crime. Objection was made on the grounds that the defendant had received a full pardon for his prior offenses. Despite the pardon, the court ruled that then-LSA-RS 15:495 allowed a defendant taking the stand to be questioned about prior offenses. "The defendant was not prevented from showing that he had received a full pardon from the prior conviction." Id., at 1081. The new code of evidence appears to apply this rule, but prohibits admission of a prior conviction if it has been pardoned "explicitly based on a finding of innocence." LSA-C.E. Art. 609 & 609.1.

3.3.2 On employment, license and permit applications: Part of the public records law, LSA-RS 44:9, provides for expungement of records of arrest and conviction. It allows for the expungement of felony arrests where charges have been dismissed or the defendant has been acquitted. RS 44:9.B(1)(A). While the statute does not specifically refer to arrests and convictions where the offender has been pardoned, it would seem to follow from the cases shown above (although no case has explicitly dealt with this issue) that the offender, having been returned to a state of innocence, is entitled to have his record expunged just as if he had been acquitted. The statute does give explicit guidance about disclosing information from an expunged record. "Except [for applications in a number of health care fields], no person whose record of arrest and conviction has been expunged pursuant to the provisions of this Section shall be required to disclose that he was arrested or convicted for the subject offense or that the record of the arrest and conviction has been expunged, unless otherwise provided in this Section." R.S. 44:9.I.

3.3.3 In private business affairs: "The pardon has no effect on the contract of these parties." Verneco, Inc. v. Fidelity & Casualty Company of New York, 219 So.2d 508 (La. 1969) (holding that employer who knowingly hired a pardoned thief was not covered by insurance policy on the basis of the policy's exclusion from coverage of acts committed by known thieves hired by employer).

3.4 Authority of the governor to pardon federal felonies: There is debate over the authority of the governor to issue such "pardons". As an act of sovereignty, it would seem that an offense could be pardoned only by the sovereign against whom the offense was committed. Thus, the governor would have no authority to pardon a federal convict. As the Louisiana Supreme Court stated: "Only the President of the United States has power under the Federal Constitution to grant pardons for offenses against the United States. … The power of the Governor of Louisiana to pardon is limited to offenses against the State." State v. Baxter, 357 So.2d 271 (La. 1978). This case is not definitive on the issue, however, because the convict in question had not received either a presidential or a gubernatorial pardon, rendering its language mere dicta. (Justice Dixon in fact pointed this out in a concurring opinion.) Others have taken the position that the governor can issue "pardons" or "restorations of rights" to persons convicted of federal offenses. The argument is that the laws of Louisiana impose significant consequences on persons convicted of any felony, whether federal or state. The governor, by pardoning a federal convict, extends the grace of Louisiana on that person to restore those rights that were taken away by Louisiana law as a consequence of the federal felony. Looked at another way, the governor commutes the portion of a federal sentence that is imposed solely by virtue of Louisiana law. See AG-OP No. 79-787. Even if this argument is accepted, it is clear that such a restoration of rights would have effect only within the territory of Louisiana, and only for rights restricted by Louisiana law. Every other state, as well as the federal government, would consider such a person to remain a convicted felon. This has practical consequences for the pardon recipient. If he were to unwittingly rely on the Louisiana pardon to restore his right to carry a gun, for example, while federal law prohibited him from doing so, he could get himself into significant trouble with federal authorities.

3.5 Gun Rights: The right of a person convicted of a crime to possess firearms is governed by both federal and state law. State law prohibits a person convicted of certain felonies from carrying a gun for a period of 10 years after the full completion of their sentence. LSA-RS 14:95.1. The sheriff of the parish in which the convict resides has the authority to issue a permit to such person prior to the expiration of the 10 year period. Id. Federal law prohibits any person from possessing a gun "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C.A. 922 (g)(1). What constitutes conviction of such a crime "shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C.A. 921 (20). In short, convicted felons cannot carry a gun under federal law unless they receive some type of pardon from the jurisdiction in which they were convicted. While there is a provision in federal law for the Secretary of the Treasury (over the Bureau of Alcohol, Tobacco, and Firearms) to waive such prohibition (see 18 U.S.C.A. 925(c)), Congress has, since 1992, attached riders to appropriations bills prohibiting ATF from spending any money to act upon requests for such waivers, so no federal waivers can be issued. A person convicted of a federal crime has no way to restore his federal firearms rights except by obtaining a federal pardon from the President.

4. First Offender Pardons

4.1 Concept of First Offender Pardon: The first offender pardon was introduced in a 1968 amendment to the Louisiana Constitution of 1921. At that time, the Pardon Board consisted of the Lt. Governor, the Attorney General, and the sentencing judge of the convict pardon seeker. Two of those three were required to recommend a pardon in order for the governor to issue the pardon. The 1968 amendment provided that no such recommendation was necessary in order for the governor to sign a pardon for a first offender. Although it is difficult to research past gubernatorial practices, it appears that there was some debate at the time whether the governor's signature on such a first offender pardon was a discretionary power or a mere ministerial act. Dicta in Davis v. Louisiana State Bd. Of Nursing, 96 0805 (La.App. 1 Cir. 2/14/97), 691 So.2d 170 at 176, suggested that the governor had no discretion and was obligated to sign such a first offender pardon.

4.2 Constitution of 1974: Perhaps because of this view, the 1974 constitution provided for an automatic first offender pardon, without any need for action by the either the pardon board or the governor. La. Const. Art. 4 § 5(E)(1).

4.3 Curtailing Effect of First Offender Pardon: Although there is no textual distinction between the effect of a full pardon signed by the governor and the first offender pardon, over time the Louisiana courts have created such a distinction and curtailed the significance and utility of the latter. Most crucially, the Louisiana Supreme Court has declared that: "[the defendant's] automatic pardon did not erase his status as a convicted felon." State v. Wiggins, 432 So.2d 234 (La. May 23, 1983) (No. 82-KA-0474).

4.3.1 First offender pardon does not restore the status of innocence to the convict. State v. Adams, 355 So.2d 917, 922 (La. Mar 06, 1978) (No. 60651). While the court at one point acknowledged the distinction between the first offender pardon and La. Const. Art. 1, § 20 , which restores "full rights of citizenship" upon completion of sentence, the court seems to have explicitly linked its interpretation of the two sections when it stated that the "effect [the first offender pardon section] would have on multiple offender law is reflected by the [1974 convention] delegates' discussion on adoption of Art. 1, §20." Id., at 922, fn 4.

4.3.2 First offender pardon does not prevent use of the pardoned offense as a predicate for a subsequent habitual offender charge. State v. Adams, supra.

4.3.3 First offender pardon does not restore right to carry a gun. State v. Wiggins, supra. The court stated: "Surely, the legislature has the authority under its police power to limit the 'rights of citizenship' restored by an automatic pardon." Id., at 237.

4.3.4 First offender pardon does not prohibit use of the pardoned offense as grounds for denying a gaming license. Catanese v. Louisiana Gaming Control Bd., 97-1426 (La.App. 1 Cir. 5/15/98), 712 So.2d 666. The first offender pardon does not erase the "historical fact" of a conviction.

4.3.5 First offender pardon does not restore right to serve on a jury. State v. Haynes, 19158-KA (La.App. 2 Cir. 10/28/87), 514 So.2d 1206.

4.3.6 First offender pardon issued under the 1968 constitutional amendment did not prohibit use of the pardoned offense to deny applicant her nursing license. Davis v. Louisiana State Board of Nursing, 96 0805 (La.App. 1 Cir. 2/14/97), 691 So.2d 170.

4.4 Scant textual support for distinction: As Chief Justice Dixon pointed out in Wiggins: "Article IV, Section 5(E) gives Wiggins an automatic pardon whether we like it or not. A pardon restores citizenship, and the right to bear arms is a right of citizenship, says the Constitution, whether we like it or not." State v. Wiggins, supra, Dixon, C.J., dissenting. As noted, the first offender pardon was born in a 1968 amendment which did nothing more than remove the requirement that a pardon for a first felony offender, before the governor could sign it, be recommended by 2 out of 3 members of the pardon board at the time. There is nothing in the text of the amendment to suggest that such a pardon would have a different legal effect than a pardon obtained with the recommendation of the pardon board. Similarly, the 1974 constitutional provision provides for first offenders to be "pardoned automatically". This provision is in the same paragraph that describes the governor's authority to pardon offenses. There is no language in that paragraph to suggest that the word "pardon" means one thing in the first sentence and a different thing in the second sentence. The court in State v. Adams, supra, relied on a policy distinction, noting that a full pardon by the governor "has presumably been given the careful consideration of several persons who have taken into account the circumstances surrounding the offense, and particular facts relating to the individual." Id., at 922. The court also relied on debate from the 1974 Constitutional Convention over the provisions of Art. 1, §20 which restores "full rights of citizenship" once an individual has completed his sentence. The court did not discuss the distinction between the first offender pardon, which is a one-shot opportunity for the offender, and section 20, which operates after every conviction a person might obtain. Even the worst habitual offender, after he has served all of his time, is restored "full rights of citizenship" under §20. However, the legislature and the citizenry seem unconcerned about this interpretation. The constitutional first offender pardon provision was amended in 1999 (well after this line of jurisprudence) to limit first offender pardons to (mostly) non-violent crimes. Acts 1999, No. 1398. Had the legislature desired to make clear the full effect of the first offender pardon, it certainly could have done so. It chose not to.

5. Pardon Board Procedures

5.1 Membership: 5 members appointed by the governor with the consent of the Senate. Current members are listed on the contacts page of this handout.

5.2 Rules: Under the authority of LSA-RS 15:572.1 et seq., the pardon board has adopted rules of procedure. They can be found in Title 22, Part 5 of the Louisiana Administrative Code.

O Brother Where Art Thou

"And I say, if their rambunctiousness and misdemeanoring is behind them… (it is, ain't it, boys?) … [then] by the power vested in me, these boys is hereby pardoned!"
-- Governor Menelaus "Pass the Biscuits" Pappy O'Daniel

O Brother, Where Art Thou?
A film by The Coen Brothers
© 2000 by Touchstone Pictures

5.3 Procedures

5.3.1 Applicant fills out an application and sends it in to the pardon board office. The application must include identifying information, details of the offenses for which a pardon is sought, past clemency applications, disciplinary reports from prison if any, reason for requesting clemency, the type of clemency requested, a narrative of the events surrounding the offense, and other information.

5.3.2 Board holds a "Rule 3" hearing. The board decides whether to grant the applicant a full hearing. At the end of pardon board meetings, the board goes through a lengthy list of current applicants and votes whether to grant a full hearing or not. This is a routine practice, and the board grants most applicants a full hearing. No testimony is taken, and the applicant is not present.

5.3.3 Applicant must, within 90 days of being notified of being granted a full hearing, advertise in the official journal of the parish where the offense occurred that he is seeking clemency, listing his name, date of birth, and parish of residence, the offense, the date it was committed, and the phone number of the pardon board.

5.3.4 The Probation and Parole office conducts a clemency investigation, which in form and substance is very similar to a pre-sentence investigation, updated to account for the applicant's life since the conviction.

5.3.5 The pardon board notifies all interested parties of the hearing date. Notice is sent to the applicant, law enforcement officials in the jurisdiction where the offense occurred, the victim or victim's family, the Crime Victims Services Bureau, and anyone else who asks to be notified. Currently, many crime victims organizations routinely receive notice.

5.3.6 The hearing is held. The board hears first from the applicant and his supporters (usually limited to 3 people), then from the victim, law enforcement, and any other interested parties. Where the DA or a victim is unable to attend in person, they are allowed to testify by telephone. LSA-RS 15:573.2. No one is sworn in, as the board has no power to issue oaths. One board member is designated before the hearing as the primary member for a particular case, and directs the detailed questioning of the applicant.

5.3.7 The board votes. Most of the time, they reach a decision immediately and announce their votes without even going into executive session to confer, although some cases are taken under advisement. If the vote is to deny, the applicant is also sent a written notice of denial, which starts the clock on when they can apply again.

5.3.8 If the board votes to recommend a pardon, the file is sent to the governor, where it is reviewed by the executive counsel's office prior to final consideration and decision by the governor.

5.4 Public meetings and public records: All actions taken by the pardon board must be done in public session. LSA-RS 15:573. Moreover, the law punishes as a misdemeanor making a non-written communication (outside of a public hearing) with any member of the pardon board urging clemency regarding any inmate. Additionally, all written communications, except by crime victims who are not public officials, with the board or any of its members are expressly made public records. LSA-R.S. 15:573.1.

5.5 Executive Counsel prohibited from representing pardon applicants: In an unusual provision of law, the governor's executive counsel, his executive secretary, and any member of his immediate staff, as well as any member of a law firm which has as a member any of those, is prohibited from representing any person, directly or indirectly, before the pardon board. Violation of this prohibition causes the staff member involved to forfeit his office. LSA-R.S. 15:572.7.