Can Governor Rick Perry pardon Anthony Graves?

Perhaps the Governor's office spoke too soon about their authority to pardon Anthony Graves. Over at Pardon Power, clemency expert PS Ruckman is "baffled" that "the Governor's office says Rick Perry cannot pardon [Anthony] Graves because 'a federal appeals court had thrown out the original conviction, and a governor could only pardon a convicted criminal.' See story here."

Ruckman notes that, at the federal level, "The U.S. Supreme Court has long ruled that the president can grant a pardon at any time, before, during or after conviction." In Texas, pardons can only be granted after conviction, but as Ruckman points out, "Mr. Graves was convicted (in 1994). Had there not been a conviction, he never would have seen prison." Further, he writes, "would anyone have doubted the power of the Board and Perry to commute Mr. Graves' sentence 6 years ago? Of course not. Has the decision making of the federal judiciary now limited the ability of the State's Board and the Governor to exercise the pardon power on behalf of Graves? We think not. That limitation is simply not to be found in the text of the State's Constitution."

Fascinated by this argument, I went to look at Attorney General opinions regarding gubernatorial pardons in Texas, and found they cut both directions. Perhaps most supportive of the Governor's stance are rulings that pardons can't be granted in deferred adjudication cases because the defendant was never "convicted." (See this example.)

However, it's also clear the purpose of pardons is to mitigate the effects of over-harsh punishment, including collateral consequences, which is in line with the purpose requested by Mr. Graves. A 1944 opinion affirmed that pardons may be issued in order to remedy collateral consequences of a conviction (in that case, driver license revocation resulting from a DWI), adding forcefully that "well established rule that the discretion of those lodged with the pardoning power is not a matter which may be controlled or reviewed by the courts."

Going back even further, from an 1881 court ruling (quoted in this 1975 opinion): "The effect of a full pardon is to absolve the party from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided." Mr. Graves may have been absolved of his crime, but he has decidedly NOT been absolved from the "consequences ... of his conviction."

From what I'm reading in these opinions (though, of course, IANAL), I'd agree with Ruckman the Governor quite arguably retains his pardon power as long as Mr. Graves continues to suffer negative consequences from his false conviction at the hands of Texas courts, even though federal courts eventually overturned the conviction many years after the fact. Certainly if Gov. Perry did grant a pardon to Anthony Graves (following a recommendation, of course, from the Board of Pardons and Paroles), I don't see how anyone would have grounds to contest it.