Friday, February 18, 2011

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.

20 comments:

Sandy said...

I'm confused. How is it that Rick Perry stays in office?

Charlie O said...

Sandy,

Answer: The sheer continued stupidity of the Texas electorate. (and that answer applies to those who vote and those who don't. If those who don't would get off their collective asses, Texas might not end up with the likes of Rick Perry.)

Don said...

Hair, Sandy. Hair,

Ryan Paige said...

Rick Perry is always finding ways to keep from pardoning people.

It's interesting that he does all sorts of other things (like funneling state grant money to his buddies) without regard for what the law specifically directs him to be able to do, but if it doesn't outright say "Hey, you can pardon dead people and people who's convictions were overturned", he flat out won't do it.

Anonymous said...

The conviction was reversed. There is no longer any conviction to pardon.

P.S. Ruckman, Jr. said...

Anon, What was reversed? Did you say a "conviction" was reversed? So, there WAS a "conviction?" Then, according to the Constitution of the State of Texas, that is really all that matters. The DA can brag about it. We can discuss it. The media can report on it. The Courts can reverse it. The legislature can bemoan it. And, guess what? The governor can pardon it!

Anonymous said...

To P. S. Ruckman:
"The governor can pardon it." But only if he wants to.

Charles in Tulia

sunray's wench said...

I wonder if Mr Graves were white, if Perry would be so slow to pardon him.

austex1151 said...

Amen, Charlie O-

To badly paraphrase Ben Franklin, we get the government we deserve. As long as Texans doggedly remain stupid and refuse to think before voting, we'll continue to confuse pandering and lying with leadership. And reap the rewards.

Anonymous said...

After a reversal, legally, the conviction no longer exists. Therefore, he can not be pardoned.

Applying your logic, a reversal of a conviction would be meaningless.

Gritsforbreakfast said...

10:05: It wouldn't be "meaningless." It'd mean Graves was eligible for compensation for his false conviction under the state's compensation law, which the Governor's office says he "deserves."

Anonymous said...

TRicky Ricky has proven it time and time again. HE CAN DO WHATEVER HE WANTS TO DO AND IF HE DOES NOT WANT TO DO IT, IT DOES NOT HAPPEN

Scott In South Austin said...

Charlie O:

Beautifully stated.

P.S. Ruckman, Jr. said...

Anon writes: "After a reversal, legally, the conviction no longer exists."

Fortunately, for Graves, the State Constitution does not demand that he stand convicted, or that, upon review, there is this or that view of conviction. It only requires that he has been convicted. And he most certainly was.

Anonymous said...

You people would argue over the density of lead. If it's not your way then it's wrong. Give it up. It's a moot argument.

Anonymous said...

Denying the pardon allows the state to with hold the compensations due to Mr. Graves for his wrongful conviction. The state is operating in a deficit. Mr. Graves will be lucky to see any of the money he is due.

Anonymous said...

Sandy said...
I'm confused. How is it that Rick Perry stays in office?

2/18/2011 11:04:00 AM

~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Look around Sandy. Scary, isn't it.

Anonymous said...

Anonymous said...
TRicky Ricky has proven it time and time again. HE CAN DO WHATEVER HE WANTS TO DO AND IF HE DOES NOT WANT TO DO IT, IT DOES NOT HAPPEN

2/19/2011 07:07:00 PM

AND OUR FELLOW TEXANS ARE ALL IN AGREEMENT IN HISTORIC NUMBERS! THE STATE LINE IS LOOKING BETTER ALL THE TIME.

Anonymous said...

"I wonder if Mr Graves were white, if Perry would be so slow to pardon him."

You might ask Kerry Max Cook that question.

Louie said...

Ha ha rofl!I'm not even going to touch this one. :)