"If men were angels, no government would be necessary."
The Federalist No. 51 (James Madison).
The pardon, commutation and reprieve power vested in the governor has a great potential for abuse. Sovereign bodies have consistently given the pardon power to the highest executive, with only minimal and sometimes ineffective political safeguards.
Many instances have demonstrated abuses of the pardon power by the highest-ranking executive and there is virtually no recourse for rectifying the improper decision. Illinois should learn from past abuses and develop a system that will protect the public from the unbridled discretion of the governor.
The governor of Illinois has the power to grant pardons, commutations and reprieves.1 The most recent controversy surrounding this power occurred when, during the final days of his term, Governor George Ryan issued his historic pardon of four death row inmates and the commutation of all other death sentences to life sentences without possibility of parole.2 Even though there are divergent feelings about the death penalty system in Illinois, everyone can agree that the actions by George Ryan send up a warning flag—how can a governor be prevented from misusing the clemency power in the midnight hours of his or her term? This question can best be analyzed by looking to the history and rationale behind the power as well as to the past attempts to limit the power when questionable clemency decisions were made by previous presidents and governors.
An analysis of many states’ clemency procedures also shows the concern those states have had with providing an unchecked power to their governors.
The Pardon Power in the Federal and State Systems
Why does the unchecked power of clemency reside in the highest-ranking executive? In a democratic system, it seems to be against the principle of checks and balances to give this power to one branch of government (let alone into the hands of one person) without an adequate safeguard. However, the Framers of the United States Constitution established the clemency power with knowledge that it is a power that goes above the ability to be checked.3 The power was based on the clemency power that was granted to the British Crown.4 The purpose for the grant of clemency power to the president was articulated to be because "one man appears to be a more eligible dispenser of the mercy of the government than a body of men."5
Even though the King of England was granted unlimited clemency power by Parliament, an abuse of the power by King Charles II led to the power being limited to non-impeachment cases.6 The treasurer of Great Britain sided with Charles II on the issue of neutrality toward France and attempted to get an agreement signed with France to stay impartial in return for compensation.7 Parliament then began impeachment hearings to thwart the treasurer’s plan.8 Charles II stepped in and pardoned the treasurer before he could be impeached, thus sparking the amendment to the clemency power disallowing clemency in cases of impeachment.9 That limitation still exists in the United Kingdom, and it was also incorporated into American law. This limitation and others, including the inability to grant clemency to a person convicted of treason10 and to three-time felons11 show that there has always been a fear that unlimited pardon power will be abused.12
Prior to the passage of the Constitution, drafters of the Articles of Confederation and both the New Jersey and Virginia plans for the Constitution withheld giving the pardon power to the president.13 Thereafter, the discussion at the Constitutional Convention revolved around the checks and balances problem that would arise if the president were granted the clemency power.14 One alternative declared at the convention was to allow the Senate to ratify any clemency decision made by the President.15 That option was discarded because, in the event of a national crisis, the need for swift action was a necessity and one person could make a pardon decision faster than many.16 In addition, many of the Framers feared that too much power had already been granted to the Senate, namely the treaty power, im-peachment power, and the power to deny ratification to judges nominated by the president.17 The timing concerns of the Framers have been solved by modern technology that now allows decisions by vast amounts of people to be made swiftly due to quick information distribution mechanisms. In addition, the concern over the power of the Senate has shifted to a concern that the executive branch now has an unequal amount of power in that the president is the leader of the largest military force in the world and also has control over the administrative agencies that "legislate and adjudicate under any but the broadest definition of ‘executing’ the laws."18
Most states have followed the federal pardon scheme by giving the clemency power to the governor. Even though Illinois and many other states have pardon boards that make recommendations to the governor, the decisions are non-binding, as is the case in the federal scheme.19 Several states have developed variations that better control the potential abuse of power. One example is the scheme in Connecticut—the state constitution in that state provides the governor with the power to reprieve an execution or other sentence, but vests the commutation and pardon power in a pardon board.20
Another scheme in place in several states utilizes a pardon board to make recommendations to the governor.21 Under this process, the governor cannot grant clemency without the board’s recommendation.22 Still another variation that has been enacted in a few states is one where the governor is one of the board members and the board collectively makes a clemency decision.23 Any policy that vests the clemency power in more than one individual provides the needed check that will prevent questionable decisions by the highest executive in the future.
Questionable Grants of Clemency Throughout Our Nation’s History
The most recent presidential clemency determinations that have come under scrutiny were several made by Bill Clinton in the final months of his second term. Several of those last-minute pardons were proven to have been granted due to influences to Clinton by people close to him. Clinton even granted a pardon to his brother, Roger Clinton, for his federal drug conviction. Even after those actions and other scandalous events that occurred during his term, Clinton was pardoned by George W. Bush.
Those events as well as the recent actions by George Ryan show it is just a matter of time before extraordinary abuses of the unchecked clemency power, as it exists today, are undertaken by an unscrupulous governor or president. Illinois can take the initiative to protect the state from an abuse of that type and change the system to provide a check on the governor’s power.
Correcting the potential for abuse must be accomplished by adding a check to the power of the executive. The only current check in place during the executive’s term is impeachment by the legislature. However, this check does not reverse any abusive grant of clemency; at most, it only prevents that executive from issuing more bad clemency grants. More importantly, although impeachment can result in the removal of the executive from office, it is an insufficient check in the midnight hours of that executive’s term because the executive is leaving office anyway. Therefore, any solution to the abuse of power problem needs to go beyond using impeachment as a check against such abuses.
After the pardon of Richard Nixon by Gerald Ford, Minnesota Senator Walter Mondale proposed a constitutional amendment (similar to the one proposed at the Constitutional Convention) that would have provided a stronger legislative check on the presidential clemency power.24 The proposed amendment provided the legislature with the ability to veto a clemency determination with a two-thirds vote in both Houses within 180 days of the grant of clemency.25 Mondale stated that the amendment would "fulfill the vision of the framers, provide a much-needed check to an unchecked power, and insure that the actions of the past several days not occur again."26
The proposed amendment was eventually struck down, mainly because of the difficulty surrounding ratification of constitutional amendments. However, an amendment of this type to the Illinois Constitution — providing the Illinois Legislature with veto power over any clemency determinations by the Governor — would not be as difficult to enact. An amendment to the United States Constitution requires a two-thirds vote of Congress as well as ratification by the legislatures of three-fourths of the states.27 By contrast, in Illinois, only a three-fifths vote by the Illinois Legislature and the vote of either a majority of the electors voting in the next election or three-fifths of the electors voting on the proposed amendment are needed to amend the state constitution.28
Another method of imposing a check on the clemency power of the governor would be to follow the lead of many other states that provide a pardon board with the power to make either the clemency decision itself or at least the recommendation needed by the governor in order to make the final clemency decision. A solution of this nature would not allow another branch of government to have a political check on the executive, but it would vest the power in more than one person, thus limiting the potential for abuse. Many states that vest the pardon board with binding power allow the legislature to either elect the board members or allow ratification of the particular board members recommended by the governor.29 This type of procedure vicariously places a check on the executive by allowing the legislature to decide the membership of the pardon board.
A combination both a legislature-approved clemency board with the power to make binding clemency determinations as well as an ultimate legislative veto power over the final decision would provide a superior method of checking the power of clemency. It would result in putting a check on the governor within the executive branch by distributing the power between several people who are subject to ratification by the legislature, and it would allow the legislature to strike down any appalling clemency decision made by either the board or the governor. In sum, any solution that vests a checked power in more than one individual and provides a check by another branch of government would serve the purpose the Framers intended—a government with sufficient checks and balances to stop any abuses of power.30
We must be ready for a scenario, however unexpected, where a future Illinois governor could let a family member, friend or a briber or blackmailer out of prison, undeservingly, and have that person cause harm to our community. During that time, many other deserving individuals could be overlooked for clemency. Our state can prevent a disaster like this before it begins by amending our constitution and statutes to ensure true checks and balances over every power of the governor. The recommendations described above can provide that much needed check.
1 Ill. Const. art. V, § 12.
2 See George Ryan, Text of Gov. George Ryan’s Speech Announcing his Commutation of All of Illinois’ Death Sentences, The Associated Press, available at http://www.sfgate.com/ryan (last visited March 25, 2003).
3 See The Federalist No. 74 (Alexander Hamilton) (identifying the importance of the ability for swift action by the president that could not be accomplished by convening the legislature).
4 See id.
6 See William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 487-95 (1977).
7 See id.
8 See id.
9 See id.
10 See e.g., Ark. Const. art. VI, § 18 ("In all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentence and pardons after conviction.") (emphasis added).
11 See Cal. Const. art. V, § 8 ("The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring.").
12 See The Federalist No. 51 (James Madison).
13 See id.
14 5 Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia, in 1787, at 480 (J. Elliot ed. 1845).
16 See The Federalist No. 74 (Alexander Hamilton).
18 See Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1728, 1821 (1996) ("[E]ven the most glancing survey indicates that the executive branch long ago supplanted its legislative counterpart as the most powerful—and therefore most dangerous—in the sense that the Founders meant.").
19 See e.g., 730 ilcs 5/3-3-2 (2000) ("[A] panel of at least 3 members decide all requests for pardon, reprieve or commutation, and make confidential recommendations to the Governor") (emphasis added).
20 Conn. Const. art. IV, § 13 ("The governor shall have power to grant reprieves after conviction, in all cases except those of impeachment, until the end of the next session of the general assembly, and no longer."); Conn. Gen. Stat. § 18-26 (2001) (providing the Board of Pardons exclusive pardon and commutation power). Georgia and Idaho also have a similar clemency procedure.
21 See e.g., Ariz. Rev. Stat. § 31-402 (2002) ([T]he board of executive clemency shall have exclusive power to pass upon and recommend reprieves, commutations, paroles and pardons. No reprieve, commutation or pardon may be granted by the governor unless it has first been recommended by the board.")
22 See id.
23 See e.g., Neb. Const. art IV, § 13 ("The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations.").
24 S.J. Res. 241, 93d Cong. (1974).
26 Id. (referring to the recent pardon of Nixon by Ford).
27 U.S. Const. art. V.
28 Ill. Const. 1970 art. XIV, §2; 5 ILCS 20/1, 20/7 (2000).
29 See e.g., Conn. Gen. Stat. § 18-24(a) (2001) (stating that board members are to be appointed by the governor with the advice and consent of either house of the general assembly).
30 If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
The Federalist No. 51 (James Madison).
Steven J. Greeley is a third year student at the Northern Illinois University College of Law. He is the 2003-2004 Editor-in-Chief of the Northern Illinois University Law Review, a Westlaw Student Representative, and a member of Phi Delta Phi, the honors law fraternity.