Topic:
STATE BOARDS AND COMMISSIONS; CAPITAL PUNISHMENT; CONSTITUTIONAL LAW; PARDONS;
Location:
CAPITAL PUNISHMENT; PARDON;

OLR Research Report


December 6, 2004

 

2004-R-0877

PARDONS

By: Christopher Reinhart, Senior Attorney

You asked who has the authority to grant pardons and commutations in death penalty cases and whether 2004 legislation changed the process.

SUMMARY

In Connecticut, unlike most states, the legislature has the pardons power. The General Assembly exercised the pardons power until legislatively delegating it in 1883 to the newly created Board of Pardons. Legislation in 2004 combined the Board of Pardons and Board of Parole into the Board of Pardons and Paroles, which is now authorized to grant pardons for any crime and commutations from the death penalty.

The governor has the power to grant reprieves, in all cases except impeachment, until the end of the next session of the General Assembly (Ct. Constitution Art. IV 13). The 1818 constitution granted the governor this power. A committee draft originally gave the governor the pardon power but the provision was deleted during the debates in 1818 (Horton, Connecticut Constitution and Commentary).

In Palka v. Walker, the Connecticut Supreme Court stated that a reprieve is a stay of the execution of a sentence and is often used to give a prisoner an opportunity to seek a pardon, commutation, or further judicial review. The court stated that the makers of the constitution gave the governor the power to grant reprieves until the end of the General Assembly's session so that the legislature could have an opportunity to consider an inmate's case and decide whether to grant clemency. A reprieve granted during a legislative session can last until the end of the next session. The governor can grant multiple reprieves to the same person (124 Conn. 121 (1938)).

A 1992 attorney general's opinion considered whether the governor had any pardon power. Based on the powers conferred to the board and governor and the Connecticut Supreme Court's opinions, he concluded that the governor did not have any residual power. At least one commentator argued that the governor does have some pardoning power but other sources disagree.

Legislation in 2004 combined the Board of Pardons and Board of Parole into the Board of Pardons and Paroles (PA 04-234). It also set rules for the new board's membership and hearings, and made a number of changes. The act made the board part of the Department of Correction (DOC) for administrative purposes only and specified the board's independent decision-making authority to grant releases and commute punishments including the death penalty.

The act requires pardons panels to consist of three board members with the chairman sitting on the panel for hearings on commuting the death penalty. Pardons hearings must be held at least every three months. Among other things, the act also requires (1) the chairman to adopt policies for all areas of pardons including granting pardons, commutations, or releases, including commutations of the death penalty and (2) the chairman, in consultation with the executive director, to adopt regulations requiring board members in pardons hearing to issue written statements of the reasons for rejecting a pardons application.

CONNECTICUT PARDONS POWER

In Connecticut, unlike most states, the legislature has the pardons power (McLaughlin v. Bronson, 206 Conn. 267 (1988), citing Palka v. Walker, 124 Conn. 121 (1938)). Connecticut's colonial charter gave the General Court authority to grant clemency. Unlike most states, Connecticut did not confer the pardoning power in its constitution. The General Assembly exercised this power until creating the Board of Pardons in 1883. The Board of Pardons and Paroles is now statutorily authorized to grant pardons for any crime and commutations from the death penalty.

In a 1992 opinion to Governor Weicker, the attorney general considered whether the governor had any residual power to grant pardons or commutations in death penalty cases (Attorney General's Opinion 1992-020). The attorney general compared the authority of the Board of Pardons and the governor and considered the Supreme Court's discussion in Palka. He stated that only the Board of Pardons has the power to grant pardons and commutations and the governor has no residual powers. He also cited a Connecticut Supreme Court case that, citing to Palka, states “the pardoning power is vested in the legislature which has delegated its exercise to the Board of Pardons” (McLaughlin v. Bronson, 206 Conn. 267 (1988)).

At least one commentator argues that because the Connecticut Constitution does not give the power to any branch of government, the governor may have some clemency power. He argues that clemency is traditionally an executive power. Although there is no record of any pardons by the governor before creation of the Board of Pardons, he argues that this only proves that the power was not exercised and not that the governor does not have it as an inherent power of the executive office (William R. Ginsberg, Punishment of Capital Offenders, 27 Connecticut Bar Journal 273 (1953)).

Other sources suggest that under the American form of government, the clemency power is a power of the people and it does not inherently belong to any branch of government (59 Am. Jur. 2d, Pardons 12, Jensen, The Pardoning Power in the American States (1922)).

BOARD OF PARDONS AND PAROLES

The Board of Pardons and Paroles has the power to grant pardons, either absolute or conditional, for any crime, either before the sentence is served or after. The board also has the power to grant commutations from the death penalty (CGS 18-26 et seq. and PA 04-234).

The general statutes vest in the Board of Pardons and Paroles broad discretion in making its pardon and commutation decisions. To obtain a pardon the person seeking it must submit a petition. There are no statutory criteria for granting or denying a pardon—the board is authorized to grant pardons, absolute or conditional, for any offense at any time after a person is sentenced. Each case is looked at individually.

Under PA 04-234, the board chairman, in consultation with the executive director, must adopt regulations requiring board members in pardons hearing to issue written statements of the reasons for rejecting a pardons application.

Victim Testimony

The board must allow a victim, his legal representative, or a member of a deceased victim's immediate family to testify at a session where it will consider granting a pardon, commutation, or release. The victim, representative, or family member can make a statement regarding the pardon, commutation, or release. The statements may be presented orally or in writing and is part of the record.

If the board is prepared to grant a pardon, commutation, or release, the board must make a reasonable effort to notify victims of the offender's crimes if the crimes involved the use or attempted or threatened use of violence or resulted in injury or death.

2004 LEGISLATIVE CHANGES

PA 04-234 combined the Board of Pardons and Board of Parole into the Board of Pardons and Paroles, set rules for the new board's membership and hearings, and made a number of changes. The act made the board part of DOC for administrative purposes only and specified the board's independent decision-making authority to grant releases and commute punishments including the death penalty.

Under the act, the new board has 13 members appointed by the governor with the consent of either house of the General Assembly. The chairman assigns seven members exclusively to parole hearings and five to pardons hearings. The chairman can sit on both pardons and parole panels. Except for the chairman, no member assigned to one type of hearing can later be assigned to the other.

The act requires pardons panels to consist of three members. The chairman can be a member and he must be on the panel for hearings on commutation of the death penalty. The board must hold a pardons hearing at least every three months. The hearings must be in various geographic areas of the state and cannot be in or on correctional facility grounds unless solely for the benefit of applicants incarcerated at the time of the hearing.

The act requires the chairman to adopt policies for all areas of pardons including granting pardons, commutations, or releases, including commutations of the death penalty. The chairman, in consultation with the executive director, must adopt regulations requiring board members in pardons hearing to issue written statements of the reasons for rejecting a pardons application.

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