Former NC governor: I speak from experience. Don’t speed up the pardon process. | Opinion
Clemency advocates want North Carolina Gov. Roy Cooper to move faster to pardon those they feel are innocent.
Let me offer an insight from one of the few North Carolinians who’ve been there and done that. As governor from 1985 to 1993, I considered my share of clemency petitions, typically five to 10 per year. My perspective adds caution to recent demands that the governor be “more transparent and less political” on clemency.
The N.C. Constitution, like the U.S. Constitution, establishes a clear separation of powers between the executive, legislative and judicial branches of government. The “Duties of Governor” are spelled out in Article III, Section 5: “Clemency. The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses (except in cases of impeachment), upon such conditions as he may think proper, subject to regulations prescribed by law relative to the manner of applying for pardons. The terms reprieves, commutations, and pardons shall not include paroles.”
That’s all it says, but it says a lot. It places a unilateral burden upon the governor with minimal guidance. It imposes no limitation other than the exclusion of impeachments and that it be granted only after conviction, the sole exception from presidential pardons. It provides for legislation regulating the manner of applying for pardons, but not for granting pardons.
Almost all requests for pardon come to the governor after appellate courts have reviewed any new evidence and relevant arguments and decided not to reverse the trial court’s finding of guilt, letting the sentence stand. They have had their “day in court.”
In a sense, the governor’s power of pardon is like a court of last resort, a respected tradition that arose in antiquity.
This somewhat obscure practice goes back 2,425 years to when ancient Greeks formalized a practice of even more ancient Babylonians. More recent history tell us the practice first appears in English history in the seventh century as the “prerogative of mercy.” Alexander Hamilton carved it into the U.S. Constitution and the U.S. Supreme Court secured it.
Consequently, it allows one individual alone to take one final look at the facts and decide whether there’s justification for clemency of any kind. There are no rules about what evidence may be considered or how much credence is owed to the jury’s verdict or the judge’s sentence. The governor may listen to any pleading and review any evidence even if it was disallowed at trial.
My only commitment to petitioners was that I would consider any reasoning but primarily two factors: Does the punishment fit the crime? And, is there substantial evidence of innocence? In capital cases, my decision would come one week before the scheduled execution.
There is no provision for legislative interference. No former governor can tell a current governor how to approach pardons unless asked. The N.C. Constitution places this final judgment upon one specified person, with no obligation to explain or comment on anything.
This naturally disturbs those who seek from the governor what they cannot win from the judiciary. Their objectives may be honorable. They may believe whatever they want if they cannot convince their “last resort.” They may appeal to the public, urging removal of political influence, for example.
Let’s think about that. If this singular constitutional duty were to be changed to require open debate and transparency of all records and communications, will that make the process and decision less political? My 26 years of political experience tells me it will make it more subject to political influence, not less. That could likely make it more difficult, if not impossible, for clemency to be awarded to anyone.
To all who advocate for innocence or forgiveness, my earnest advice is: Do all you legally can for those you believe are innocent or too severely punished. Let’s not experiment with this rare curiosity that has survived 24 centuries of Western civilization.