State ex rel. Maurer v. Sheward , 71 Ohio St. 3d 513 ( 1994 )

33
The State ex rel. Maurer et al., Appellants, v. Sheward, Judge,
Appellee.
Wilkinson, Dir., et al., Appellants, v. Maurer et al., Appellees.
[Cite as State ex rel. Maurer v. Sheward (1994), ___ Ohio St.3d
___.]
Constitutional law — Commutations of death sentences by Governor
not subject to application process outlined in R.C. 2967.07
— Section 11, Article III, Ohio Constitution, construed.
(Nos. 92-1350 and 93-1165 — Submitted September 20, 1994 —
Decided December 30, 1994.)
Appeals from the Court of Appeals for Franklin County, Nos.
91AP-1442, 92AP-674, 92AP-675, 92AP-677 and 92AP-678.
Case No. 93-1165
On January 10, 1991, two business days before the expiration
of his term in office, former Ohio Governor Richard F. Celeste
commuted the sentences of eight inmates and granted one full
pardon. Two additional inmates also were granted clemency, but
their appeals below were either withdrawn or properly found to be
moot.1
Donald Lee Maurer, Leonard Jenkins, Debra Brown, Willie Lee
Jester, Elizabeth Green, Lee Seiber and Rosalie Grant had been
convicted of aggravated murder and sentenced to death. With the
exception of Rosalie Grant, former Governor Celeste commuted the
death sentences to life imprisonment without eligibility for
parole. The Governor commuted Rosalie Grant’s death sentence to
life in prison with no restriction as to parole eligibility.
Ralph DeLeo had been convicted of murder and was serving a
sentence of fifteen years to life. Former Governor Celeste
commuted his sentence to time served. John Salim had been
convicted of felonious assault. He was serving a sentence of six
to twenty-one years when former Governor Celeste granted him a
full pardon.
When the former Governor granted the pardon and
commutations, the Ohio Adult Parole Authority (“APA”) had not
been asked to conduct investigations or formulate recommendations
for seven of the applicants who had been sentenced to death.
Instead, their applications for clemency were filed directly with
the former Governor. With respect to Ralph DeLeo and John Salim,
their applications were submitted to the APA between December 6
and December 17, 1990. By January 9, 1991, the APA had taken no
final action on the two applications. On that day, a
representative from former Governor Celeste’s office called the
APA to request that it expedite review of the two applications.
The APA responded that it could not complete the review process
in two business days.
On January 29, 1991, George Wilson, Director of the
Department of Rehabilitation and Correction, and John Shoemaker,
Chief of the APA,2 filed a complaint for declaratory judgment in
the Franklin County Court of Common Pleas seeking a determination
that former Governor Celeste’s actions were in contravention of
Section 11, Article III of the Ohio Constitution, and R.C.
Chapter 2967. The plaintiffs sought a declaration that the
pardon and commutations granted to the defendants by former
Governor Celeste were void. Current Governor George V. Voinovich
successfully petitioned the court for leave to intervene as a
plaintiff.
On March 6, 1991, the defendants moved to dismiss the
complaint for lack of jurisdiction, alleging that the matter was
nonjusticiable, because any judicial declaration as to the
validity of executive clemency would unconstitutionally infringe
upon the Governor’s clemency power. The trial court overruled
the motion on September 26, 1991. Following a bench trial, the
trial judge issued a decision and entry granting a declaratory
judgment to plaintiffs. The court explained that “full
compliance with the requirements of R.C. 2967.07 and R.C. 2967.12
is a condition precedent to the valid exercise of the clemency
power by the Governor * * *” and that the pardon and commutations
granted by former Governor Celeste were invalid.
The eleven defendants appealed in six separate notices of
appeal to the Tenth District Court of Appeals; their appeals were
consolidated for decision. The court of appeals reversed the
decision of the trial court. After considering the language of
Section 11, Article III, the court of appeals found that the
clause that subjects the Governor’s clemency power to “such
regulations, as to the manner of applying for pardons” applies
only to the Governor’s power to grant pardons. The court stated
that the constitutional provision does not provide the General
Assembly with authority to regulate the Governor’s power to grant
commutations. The court of appeals also determined that
regulations enacted by the General Assembly apply to individuals
applying for pardons but do not affect the ability of the
Governor to grant a pardon on his own initiative. Specifically,
the court of appeals held that nothing in Section 11, Article III
of the Ohio Constitution or R.C. Chapter 2967 could limit the
Governor’s power to grant clemency on his own initiative, even if
he chose to do so without first receiving a recommendation from
the APA.
This cause is now before this court upon the allowance of a
motion to certify the record.
Case No. 92-1350
The second cause submitted for review emerged from the
underlying declaratory judgment action discussed above. On
December 10, 1991, after the trial court denied the defendants’
motion to dismiss the action, but prior to trial, the defendants
sought a writ of prohibition in the Franklin County Court of
Appeals. Defendants urged the court of appeals to bar the trial
judge from exercising judicial power over the declaratory
judgment action, because the action did not present a justiciable
question. On January 28, 1992, a referee concluded that the
defendants’ arguments lacked merit and recommended that the court
of appeals dismiss the prohibition action on the basis of this
court’s decision in State ex rel. Ney v. Governor (1991), 58 Ohio
St.3d 602, 567 N.E.2d 986. The court of appeals adopted the
referee’s recommendation and dismissed the petition.
This cause is now before this court upon an appeal as of
right and has been consolidated with case No. 93-1165 for
purposes of final determination.
___________________
Ken Murray, for appellant Debra Brown in case No. 92-1350.
Barry W. Wilford and Dennis Pusateri, for Ralph DeLeo.
S. Adele Shank, for Rosalie Grant.
D. Shannon Smith and Timothy A. Smith, for Elizabeth Green.
Elizabeth A. McNellie, Joy Maciejewski and Sean M. McAvoy,
for appellant Leonard Jenkins in case No. 92-1350.
Shaw, Pittman, Potts & Trowbridge, Thomas C. Hill, Alvin
Dunn and Joseph Figini; Matan & Smith and Steven L. Smith, for
Willie L. Jester.
Sowash, Carson & Shostak and Herman A. Carson, for Donald
Maurer.
Richard B. Igo, for Freddie Moore and John Salim.
Gregory W. Meyers, for Lee Seiber.
Michael Miller, Franklin County Prosecuting Attorney, and
Bonnie L. Maxon, Assistant Prosecuting Attorney, for appellee in
case No. 92-1350.
Lee Fisher, Attorney General, John J. Gideon and Jack W.
Decker, Assistant Attorneys General, for appellants in case No.
93-1165 and urging affirmance for amici curiae, George Voinovich,
Reginald Wilkinson and Jill Goldhart in case No. 92-1350.
K. Ronald Bailey, for appellee Debra Brown in case No. 93-
1165.
Melanie S. Corcoran, James W. Brown III and Christopher P.
Thorman, for appellee Leonard Jenkins in case No. 93-1165.
Steven H. Steinglass, urging dismissal or affirmance for
amicus curiae, Law Professors’ Brief Amicus Curiae Committee in
case No. 93-1165.
Kevin Francis O’Neill, Peter Joy, Daniel T. Kobil and Paul
Moke; Moots, Cope & Stanton and Benson A. Wolman, urging
affirmance for amicus curiae, American Civil Liberties Union of
Ohio Foundation in case No. 93-1165.
Squire, Sanders & Dempsey and David J. Young, urging affirmance
for amicus curiae, Catholic Conference of Ohio in case No. 93-
1165.
Law Enforcement Legal Association, Inc., Paul L. Cox and
Walter T. Florence, urging reversal for amicus curiae, Fraternal
Order of Police of Ohio, Inc., in case No. 93-1165.
___________________
Per Curiam. Case No. 93-1165 requires this court to decide
three issues: (1) Does Section 11, Article III of the Ohio
Constitution authorize the General Assembly to prescribe
procedural prerequisites to the exercise of the Governor’s
clemency power?; (2) If so, does the General Assembly have the
authority to prescribe procedural prerequisites for commutations
as well as pardons?; and (3) Has the General Assembly in fact
imposed procedural prerequisites upon the Governor’s clemency
power?
We will address case No. 92-1350, which raises issues also
implicated by case No. 93-1165, in Part IV of this opinion.
I
Section 11, Article III of the Ohio Constitution provides
the authority for the Governor’s clemency power:
“He [the Governor] shall have power, after conviction, to
grant reprieves, commutations, and pardons, for all crimes and
offenses, except treason and cases of impeachment, upon such
conditions as he may think proper; subject, however, to such
regulations, as to the manner of applying for pardons, as may be
prescribed by law. Upon conviction for treason, he may suspend
the execution of the sentence, and report the case to the general
assembly, at its next meeting, when the general assembly shall
either pardon, commute the sentence, direct its execution, or
grant a further reprieve. He shall communicate to the general
assembly, at every regular session, each case of reprieve,
commutation, or pardon granted, stating the name and crime of the
convict, the sentence, its date, and the date of the commutation,
pardon, or reprieve, with his reasons therefor.”
Section 11, Article III was adopted as part of extensive
revisions to the Constitution made in 1851. Prior to 1851, the
Governor’s clemency power was set forth in Section 5, Article II
of the Ohio Constitution of 1802, which provided in its entirety:
“He [the Governor] shall have the power to grant reprieves and
pardons, after conviction, except in cases of impeachment.” This
section was modeled after Section 2, Article II of the United
States Constitution, which gives the President the “Power to
grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.”
Both the United States Constitution and the Ohio
Constitution of 1802 conferred broad powers of executive
clemency. The only limitations on the clemency power were that
it could be exercised only after conviction (Ohio Constitution)
and that clemency could not be granted in cases of impeachment
(both Ohio and United States Constitutions). Neither
Constitution authorized the enactment of laws to curtail the
executive’s clemency power. However, with the adoption of
Section 11, Article III, Ohio significantly altered its provision
on executive clemency.
Although the Ohio Constitution places the clemency power in
the hands of the Governor, that power clearly is not absolute.
The Governor’s clemency power is subject to whatever restrictions
are contained in Section 11, Article III. See State v. Morris
(1978), 55 Ohio St.2d 101, 111, 9 O.O.3d 92, 98, 378 N.E.2d 708,
714. These restrictions provide that clemency may be granted
only after conviction, may be granted only partially in cases of
treason, and not at all in cases of impeachment.
Though the Governor’s power to grant clemency is limited,
the only limits on the clemency power are those specifically
authorized by Section 11, Article III. Knapp v. Thomas (1883),
39 Ohio St. 377, 392. The General Assembly may not interfere
with the discretion of the Governor in exercising the clemency
power. Morris, 55 Ohio St.2d at 111, 9 O.O.3d at 98, 378 N.E.2d
at 714. Likewise, the Governor’s exercise of discretion in using
the clemency power is not subject to judicial review. See State
ex rel. Whiteman v. Chase (1856), 5 Ohio St. 528, 535; Knapp, 39
Ohio St. at 391.3
The specific limitation at issue in this case comes from the
“subject to” clause of Section 11, Article III:
“He [the Governor] shall have power, after conviction, to
grant reprieves, commutations, and pardons, for all crimes and
offenses, except treason and cases of impeachment, upon such
conditions as he may think proper; subject, however, to such
regulations, as to the manner of applying for pardons, as may be
prescribed by law.” (Emphasis added.)
It is apparent from the structure of the first sentence of
Section 11 that the “subject to” clause modifies the word
“power.” The first clause of the first sentence provides the
Governor the power to grant executive clemency. The presence of
the word “however” in the second clause indicates a limit on that
power. Thus, the Governor’s power to grant clemency is limited
by the “subject to” clause. However, the authority granted to
the General Assembly under the “subject to” clause is itself
limited to regulating the application process. Furthermore, as
we conclude below, the “subject to” clause only provides the
General Assembly with the authority to regulate “as to the manner
of applying for pardons.” (Emphasis added.) Consistent with
Knapp and Morris, the authority to issue regulations is further
limited in that those regulations may not interfere with the
Governor’s discretion to grant or deny pardons.
We believe that the authority to prescribe regulations “as
to the manner of applying for pardons” provides the General
Assembly with the authority to prescribe a regulatory scheme
governing the manner and procedure of applying for pardons.
Unlike the court of appeals, we do not believe that the General
Assembly has the authority to regulate only the applicants for
pardons. We interpret the language of the “subject to” clause as
providing the General Assembly with the authority to establish a
regulatory scheme that includes prerequisites to the exercise of
the Governor’s power to grant pardons.4 Our interpretation is
consistent with the purpose of the “subject to” clause, which was
to provide the General Assembly with the authority to establish
procedural safeguards against the granting of pardons. The
drafters of Section 11 were concerned that without such
safeguards, the Governor might grant pardons without thorough
consideration or might be too easily influenced by political
factors to grant or deny clemency for reasons other than the
merits of an inmate’s claim. See 1 Report of the Debates and
Proceedings of the Convention for the Revision of the
Constitution of the State of Ohio 1850-1851 (1851) 306-307.
Consistent with the language and purpose of Section 11, the
authority to regulate the application process must also include
the authority to establish prerequisites to the Governor’s
exercise of the power to grant pardons. To exempt the Governor
from the “subject to” clause would allow the Governor to
circumvent the procedural safeguards for which the clause was
adopted, rendering the clause meaningless.
For the foregoing reasons, we hold that the General Assembly
is authorized by Section 11, Article III of the Ohio Constitution
to prescribe procedural prerequisites to the application process
for executive pardons. In order to be valid, any grant of a
pardon must be based on an application that complies with the
procedural prerequisites. The General Assembly is not authorized
to prescribe substantive regulations concerning the Governor’s
discretion in the use of the clemency power, or in any way
intrude on the discretion of the Governor. For example, the
General Assembly could not, acting under the limited authority
provided by Section 11, Article III, enact a statute requiring
the Governor to accept the recommendation of the APA in the
exercise of his clemency power. Likewise, the General Assembly
could not enact a statute forbidding the Governor from exercising
the clemency power in any specific class of cases.
II
Having determined that Section 11, Article III authorizes
the General Assembly to prescribe procedural regulations as to
the application process for pardons, we next consider whether
that authority extends to any other types of clemency.
The language of Section 11 expressly provides the extent of
the General Assembly’s authority to regulate the application
process for executive clemency: “[The Governor] shall have power
* * * to grant reprieves, commutations, and pardons * * *;
subject, however, to such regulations, as to the manner of
applying for pardons, as may be prescribed by law.” (Emphasis
added.) The language of Section 11 clearly provides the General
Assembly with the authority to regulate the application process
for pardons. However, the “subject to” clause does not implicate
in any way the Governor’s powers with respect to commutations or
reprieves.5 The issue then becomes whether commutations, even
though they are not mentioned within the “subject to” clause, may
also be regulated.
Plaintiffs argue that the authority to regulate the
application process for “pardons” also includes the authority to
similarly regulate commutations. They reach that conclusion
based upon their perception that the word “pardons” may be
interpreted broadly to include all types of executive clemency.
In other words, the plaintiffs argue that commutations are a
subset of pardons, and by using the word “pardons” the drafters
intended that the General Assembly have the power to regulate
commutations as well as pardons.
We do not believe that commutations are a subset of pardons.
The first step in determining the meaning of a constitutional
provision is to look at the language of the provision itself.
Where the meaning of a provision is clear on its face, we will
not look beyond the provision in an attempt to divine what the
drafters intended it to mean. Slingluff v. Weaver (1902), 66
Ohio St. 621, 64 N.E. 574.
The meaning of Section 11 is obvious after a careful review
of that provision. The first sentence provides the Governor with
the power to grant three different types of clemency — reprieves,
commutations and pardons. The end of the first sentence is
equally clear in providing the General Assembly with the
authority to regulate the application process for only one type
of clemency — pardons. The language of Section 11 could not be
clearer in limiting the General Assembly’s authority to regulate
only pardons. Moreover, any argument that commutations are a
subset of pardons is, as shown below, simply unsupportable.
The canons of statutory interpretation, which guide our
interpretation of constitutional and statutory text, support the
conclusion that the word “pardons” in the “subject to” clause
does not include commutations. This court has consistently held
that words used more than once in the same provision have the
same meaning throughout the provision, unless there is clear
evidence to the contrary. State ex rel. Bohan v. Indus. Comm.
(1946), 146 Ohio St. 618, 33 O.O. 92, 67 N.E.2d 536, paragraph
one of the syllabus, overruled on other grounds, State ex rel.
Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O.3d 347,
390 N.E.2d 1190. The three types of clemency are each listed
together four different times in Section 11. In fact, the only
time one type of clemency is mentioned alone is when “pardons”
appears within the “subject to” clause. To define pardons to
include commutations when the two types of clemency are each
listed together so many times within the same small section would
be nonsensical. Additionally, interpreting “pardons” to include
commutations has the problem of rendering the presence of the
word “commutations” useless. Our prior cases require that we
reject that result, because if possible we must give meaning to
every word in a provision. Steele, Hopkins & Meredith Co. v.
Miller (1915), 92 Ohio St. 115, 110 N.E. 648.
The argument that commutations are a subset of pardons is
also contrary to our previous decisions where we have held that
commutations and pardons are two entirely different types of
clemency. In In re Victor (1877), 31 Ohio St. 206, 207, this
court defined a commutation as “a change of punishment from a
higher to a lower degree, in the scale of crimes and penalties
fixed by the law * * *.” In State ex rel. Atty. Gen. v. Peters
(1885), 43 Ohio St. 629, 650-651, 4 N.E. 81, 87-88, this court
defined pardons:
“A pardon discharges the individual designated from all or
some specified penal consequences of his crime. It may be full
or partial, absolute or conditional.
“A full and absolute pardon releases the offender from the
entire punishment prescribed for his offense, and from all the
disabilities consequent on his conviction.
“[A] commutation is ‘the change of a punishment to which a
person has been condemned into a less severe one.’
“It is not a conditional pardon, but the substitution of a
lower for a higher grade of punishment * * *.” (Citation omitted
and emphasis added.)
The Peters case conclusively established that pardons are
different from, and do not include, commutations. The
interpretation of Section 11 ends here, with the unmistakable
conclusion that the “subject to” clause does not provide the
authority to regulate commutations.
Instead of approaching Section 11 by considering its plain
language, the dissent attempts to justify its interpretation that
the word “pardons” in the “subject to” clause includes
commutations by wading into the morass of speeches made by the
drafters of Section 11. The dissent bases its interpretation on
the perception that because several drafters did not distinguish
between commutations and pardons in their speeches regarding the
reporting clause of Section 11, they intended that the word
pardon in the “subject to” clause include commutations. Such a
conclusion is simply incomprehensible. We do not agree that
imprecise speeches by individual drafters give courts carte
blanche to ignore the plain language of a constitutional
provision. Those drafters were precise when they wrote the
reporting provision. That provision, which is the last sentence
of Section 11, precisely distinguishes among the three different
types of clemency: “He shall communicate to the general
assembly, at every regular session, each case of reprieve,
commutation, or pardon granted, stating the name and crime of the
convict, the sentence, its date, and the date of the commutation,
pardon, or reprieve, with the reasons therefor.” (Emphasis
added.) Moreover, as we stated in Slingluff, we will not look to
the history of a provision where, as here, the language of the
provision is clear.
Given our tradition of interpreting statutory and
constitutional language, the only plausible interpretation of
Section 11 is the one we adopt today — the “subject to” clause
provides authority to the General Assembly to regulate the
application process for pardons and not commutations.
III
Because we have established that Section 11, Article III
authorizes the General Assembly to regulate the application
process for pardons, we must determine whether the General
Assembly has, in fact, prescribed any regulations. Plaintiffs
claim that the General Assembly, through R.C. Chapter 2967 in
general and R.C. 2967.07 in particular, has established
procedural requirements that must be fulfilled before a pardon
may be granted. Defendants argue that R.C. 2967 is merely a
directory statute setting forth procedures which the Governor
may choose to ignore.
R.C. 2967.07 provides:
“All applications for pardon, commutation of sentence, or
reprieve shall be made in writing to the adult parole authority.
Upon the filing of such application, or when directed by the
governor in any case, a thorough investigation into the propriety
of granting a pardon, commutation, or reprieve shall be made by
the authority, which shall report in writing to the governor a
brief statement of the facts in the case, together with the
recommendation of the authority for or against the granting of a
pardon, commutation, or reprieve, the grounds therefor and the
records or minutes relating to the case.”
As we determined above, Section 11, Article III of the Ohio
Constitution authorizes the General Assembly to regulate the
application process only with respect to pardons, and not
commutations or reprieves. Because the grant of the clemency
power with respect to commutations and reprieves is unfettered,
any regulation by the General Assembly that acts to limit the
Governor’s power to grant commutations or reprieves is a
violation of the Constitution. To the extent that the regulatory
scheme under R.C. Chapter 2967 places limits or preconditions on
the Governor’s power to grant commutations or reprieves, it is
unconstitutional and void. We are particularly concerned with
R.C. 2967.07. As we note below, the General Assembly in R.C.
2967.07 has provided a regulatory prerequisite to the granting of
commutations, as well as pardons and reprieves: a clemency
application must be made to and acted on by the Adult Parole
Authority before the Governor may grant clemency. We do not
question the wisdom of this legislation, but it has no
constitutional underpinnings beyond pardons.
The question becomes whether we may sever the
unconstitutional references to commutations and reprieves from
the otherwise constitutional portions of R.C. 2967.07. R.C. 1.50
provides that statutory provisions are presumptively severable:
“If any provision of a section of the Revised Code or the
application thereof to any person or circumstance is held
invalid, the invalidity does not affect other provisions or
applications of the section or related sections which can be
given effect without the invalid provision or application, and to
this end the provisions are severable.” In order to sever a
portion of a statute, we must first find that such a severance
will not fundamentally disrupt the statutory scheme of which the
unconstitutional provision is a part. We set forth the test for
determining whether an unconstitutional provision may in fact be
severed in Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160
N.E. 28, 33:
“‘(1) Are the constitutional and the unconstitutional parts
capable of separation so that each may be read and may stand by
itself? (2) Is the unconstitutional part so connected with the
general scope of the whole as to make it impossible to give
effect to the apparent intention of the Legislature if the clause
or part is stricken out? (3) Is the insertion of words or terms
necessary in order to separate the constitutional part from the
unconstitutional part, and to give effect to the former only?’”
Id., quoting State v. Bickford (1913), 28 N.D. 36, 147 N.W. 407,
paragraph nineteen of the syllabus.
The references to commutations and reprieves meet the test
for severability provided in Geiger. R.C. 2967.07 provides a
regulatory scheme that imposes the same regulations upon the
three types of clemency. In other words, it is as if there were
three separate but identical statutes each regulating one type of
clemency. Therefore, the regulation of each type of clemency is
essentially independent of the others. Because of their
independence, the regulation of commutations and reprieves are
not so connected to the regulation of pardons that without
reference to commutations and reprieves the regulatory scheme
will not give effect to the intention of the General Assembly.
The requirements of the regulatory scheme concerning pardons will
not change. We need only excise the constitutionally offensive
references to commutations and reprieves in R.C. 2967.07 and need
not add any other language in order to give effect to its
regulatory scheme. Thus, we hold that, pursuant to the Ohio
Constitution, R.C. 2967.07 may regulate the application process
for pardons only.
Because only a portion of the statute is constitutional,
only the Governor’s grant or denial of a pardon is “subject to”
the application process outlined in R.C. 2967.07. His power to
grant or deny commutations is not subject to those regulations.
Therefore, the commutations at issue in this case remain valid.
The validity of the one pardon granted without an
application in compliance with the procedure outlined in R.C.
2967.07 remains at issue. We must now determine whether this
noncompliance precluded the Governor from granting a pardon. As
we noted above, the Governor exercises the pardoning power
“subject to” these regulations, even though the General Assembly
is not authorized by Section 11, Article III to intrude in any
way upon the Governor’s discretion to grant or deny a pardon.
The exercise of the pardoning power involves two distinct
elements — the application process and the consideration process.
The phrase “manner of applying” for pardons includes the entire
application process, which encompasses the filing of the
application itself, the investigation, the recommendation, and
the full report compiled by the APA. We find that the General
Assembly’s authority to regulate the application process extends
to the time just before the Governor reaches a substantive
decision concerning a pardon. Once this point is reached, the
General Assembly’s constitutionally granted authority to regulate
procedurally the pardoning power of the Governor is at its end.
By its clear terms, R.C. 2967.07 contemplates that an
investigation by the APA that leads to a recommendation for or
against a pardon may be initiated in two distinct ways. The
first way is for an applicant (or someone on the applicant’s
behalf) to file a pardon request directly with the APA. The
second way is for the Governor to direct that the investigation
occur. The real issue in this case is whether the Governor is
required to await the APA investigation and recommendation before
he may grant a pardon.
The first sentence of R.C. 2967.07 requires that all
pplications for pardons shall be made to the APA. The General
Assembly has chosen the word “all” to indicate that every request
for a pardon must go to the APA for evaluation. In addition, the
General Assembly has chosen to use the word “shall” in R.C.
2967.07 three times in connection with the APA’s role in the
pardon application process. This indicates the mandatory nature
of the APA investigation and of the entire APA involvement in the
application process.
We hold that R.C. 2967.07 mandates that the APA
investigation report and recommendation must be presented to the
Governor before he may grant a pardon. This mandate includes
those situations in which the Governor initiates the APA
investigation.
The requirement of APA involvement by the General Assembly
is permissible, because it is within the General Assembly’s
authority to “legislate in aid of the [pardoning] power.” Knapp,
39 Ohio St. at 392-393. The statute is meant to ensure that
information about each person for whom a pardon is considered
will be available to the Governor, so that an informed decision
may be made. This is precisely the type of regulation “as to the
manner of applying for pardons” contemplated by Section 11,
Article III. The Governor’s power to grant pardons is subject to
this procedural mechanism, which requires the APA to investigate,
recommend and report before the Governor may grant a pardon.
Because the Governor has ultimate substantive discretion
whether to grant or deny a pardon, there is no requirement that
the Governor place any weight whatsoever on either the
investigative report or the recommendation of the APA. However,
the power to disregard is not equivalent to the power to proceed
without the procedural requirements first being fulfilled. The
abuses sought to be remedied by addition of the “subject to”
clause in Section 11, Article III are those that occur during the
application process. Thus, the process is subject to regulation,
and procedural requirements may be placed on the Governor’s power
to pardon. To find otherwise would be to read the “subject to”
clause out of Section 11, Article III, when it is clear that that
clause affects the power of the Governor to grant pardons.
Defendants argue that if R.C. 2967.07 regulates in a way
which affects the Governor’s power to pardon, then the statute is
unconstitutional. However, the regulations placed on the
pardoning power are those authorized by the Constitution itself.
See Knapp, 39 Ohio St. at 392. Since R.C 2967.07 was enacted
pursuant to the authority of Section 11, Article III, the statute
is constitutional to the extent that it regulates the application
process for pardons.
We recognize that the pardoning power conferred on the
Governor by the Ohio Constitution is essential to ensure justice
in particular cases. Indeed, as Alexander Hamilton stated in The
Federalist No. 74 (Cooke Ed. 1961) 500-501, in support of the
broad clemency power conferred on the President by Section 2,
Article II of the United States Constitution: “Humanity and good
policy conspire to dictate, that the benign prerogative of
pardoning should be as little as possible fettered or
embarrassed. The criminal code of every country partakes so much
of necessary severity, that without an easy access to exceptions
in favor of unfortunate guilt, justice would wear a countenance
too sanguinary and cruel.”
However, the power to pardon is subject to abuse. The
framers therefore authorized the Ohio General Assembly to enact
regulations to limit those abuses, thereby allowing procedural
requirements which limit the Governor’s exercise of the power.
In R.C. Chapter 2967, the General Assembly has enacted the
authorized regulations as safeguards against abuse. Those
safeguards do not stand in the way of the Governor’s substantive
exercise of the pardoning power. It would take an amendment to
Ohio’s Constitution to authorize substantive limitations.
Nevertheless, the safeguards do impose procedural requirements
which were bypassed in this case. The pardon purportedly granted
was invalid from the outset.
Amicus curiae American Civil Liberties Union of Ohio
Foundation argues that if this court reverses the decision of the
court of appeals, the cause should be remanded to the court of
appeals to resolve issues that court did not reach in its
previous opinion. However, we have determined, as a matter of
law, that former Governor Celeste acted outside the scope of his
constitutionally conferred clemency authority in granting the
pardon. The other assignments of error raised in the court of
appeals cannot alter that finding. The judgment of the court of
appeals in case No. 93-1165 is affirmed with respect to the
commutations and reversed as to the pardon. The declaratory
judgment of the trial court that the pardon is invalid is
reinstated.
IV
Case No. 92-1350
In case No. 92-1350, the defendants in case No. 93-1165
appeal from the court of appeals’ denial of their complaint for a
writ of prohibition. Defendants contend that the court of
appeals erred in refusing to stop the trial court from exercising
jurisdiction in the declaratory judgment action, which is the
subject of the appeal in case No. 93-1165. We find that our
resolution of the issues in case No. 93-1165 is determinative of
the issues raised in this appeal, and that any remaining issues
therefore are moot. Accordingly, we affirm the judgment of the
court of appeals in case No. 92-1350.
Judgment affirmed
in case No. 92-1350.
Judgment affirmed in part
and reversed in part
in case No. 93-1165.
A.W. Sweeney, Wright and Evans, JJ., concur.
Moyer, C.J., concurs separately.
Douglas, Resnick and F.E. Sweeney, JJ., concur in part and
dissent in part.
John R. Evans, J., of the Third Appellate District, sitting
for Resnick, J.
FOOTNOTES:
1. In his application for clemency, Saram Bellinger stated that
he was convicted of aggravated robbery with firearm
specifications and was sentenced to an indefinite term of five to
twenty-five years’ imprisonment, to be served consecutively with
three years’ actual incarceration. Both former Governor Celeste
and Governor George V. Voinovich commuted that sentence to time
served. Bellinger withdrew his appeal.
According to his application for clemency, Freddie Moore was
convicted of operating a gambling house and received a suspended
sentence. Former Governor Celeste granted Moore a full and
unconditional pardon on January 11, 1991, after which Governor
Voinovich pardoned him on August 24, 1992. The court of appeals
noted that his appeal had been rendered moot by the pardon from
Governor Voinovich.
2. Reginald Wilkinson was substituted as a party to this action
pursuant to Civ.R. 25(D)(1) when he replaced George W. Wilson as
the Director of Rehabilitation and Correction effective March 25,
1991.
Jill Goldhart was substituted as a party for John W.
Shoemaker when she became Acting Chief of the APA.
3. Even though courts may not review the substantive decision
of the Governor on whether to exercise clemency in a particular
case, courts may consider whether constitutionally authorized
limitations on the clemency power have been respected. For
example, if a Governor attempted to grant a pardon before the
recipient had been convicted, the purported grant would be
outside the scope of the clemency power conferred by Section 11,
Article III and constitutionally invalid from the outset.
Similarly, a purported pardon is not really a pardon at all if
constitutionally authorized procedural limitations on the
pardoning power are ignored. Knapp held that a pardon, once
granted and delivered, is irrevocable. Id., 39 Ohio St. 377,
syllabus. However, Knapp did not consider the issue of
constitutional limitations on the Governor’s power. An attempted
pardon which is granted without adherence to constitutionally
authorized requirements is invalid, and is not immune to
challenge.
4. Interpreting the “subject to” clause as authorizing the
General Assembly to set up a regulatory scheme which includes
prerequisites to the exercise of the Governor’s pardoning power
is consistent with our earlier analysis where we found that the
clemency power is subject to whatever limits are set forth in
Section 11, Article III. In the case of the “subject to” clause,
the limit takes the form of an authorization to the General
Assembly to issue regulations that will themselves limit the
Governor’s pardoning power.
5. Though the validity of a reprieve is not at issue in this
case, we believe that any interpretation of the “subject to”
clause is necessarily incomplete without considering each of the
three types of executive clemency. In terms of reprieves, we
believe that they are fundamentally different from pardons. A
reprieve is temporary; execution of a sentence is delayed when
the Governor grants a reprieve. A reprieve is not permanent in
the way that a pardon is. Reprieves, by their very nature, often
require prompt, totally unfettered action by the Governor.
Consequently, we find that reprieves are not governed by the
“subject to” clause and, consistent with our analysis below, the
General Assembly may not regulate the application process for
reprieves.
Moyer, C.J., concurring separately. I concur in the
judgment and opinion of the majority that apply Section 11,
Article III, Ohio Constitution and R.C. Chapter 2967 as clearly
intended by the drafters of the Ohio Constitution and by the
General Assembly. I write separately to discuss an aspect of the
majority decision that demonstrates one of the very difficult
responsibilities of being a judge.
The majority’s careful and restrained interpretation
produces the only conclusion that is faithful to the words of the
Constitution and to R.C. Chapter 2967. We are not required or
even requested to review the wisdom or the judgment of the acts
of Governor Celeste when he pardoned and commuted the sentences
of the defendants two business days before he left office. If
that were the issue, my vote would be to invalidate all of the
Governor’s actions. That, however, is not the issue we are
required to decide. Nor is there any dispute that even if the
Governor were required by the Constitution and the statutes to
receive a report from the Ohio Adult Parole Authority before
granting a pardon or commutation, he could disregard the
recommendation contained in the report and grant the pardon or
commutation. Indeed, the manner in which Governor Celeste
granted the commutations and pardon in the cases before us
suggests that even if he had followed the statutory procedure, it
is unlikely he would have followed a recommendation of the Adult
Parole Authority that any of the defendants not be granted a
commutation or pardon. It appears that that is precisely the
reason the dissent advocates an amendment to the Constitution
that would limit the power of the Governor to grant pardons,
commutations and reprieves beyond the limitations in Section 11,
Article III. As Chief Justice Marshall observed, “[c]ourts are
the mere instruments of the law, and can will nothing.” Osborn
v. Bank of United States (1824), 22 U.S. (9 Wheat.) 738, 866, 6
L.Ed. 204, 234.
The majority opinion reflects the fundamental role of
judicial responsibility and restraint. Every judge faithful to
the judicial oath of office must be able to separate the law from
his or her personal views when deciding cases. That fundamental
aspect of judging is a unique challenge to judicial decision-
making. In separating personal opinion from the constitutional
issues before us, I am reminded of the observation that “[i]f the
provisions of the Constitution be not upheld when they pinch as
well as when they comfort, they may as well be abandoned.” Home
Bldg. & Loan Assn. v. Blaisdell (1934), 290 U.S. 398, 483, 54
S.Ct. 231, 256, 78 L.Ed. 413, 452 (Sutherland, J., dissenting).
There is no comfort in applying the plain language of the Ohio
Constitution to the facts in the case before us. The conduct of
the death-penalty defendants that produced their convictions and
death sentences is the lowest form of human behavior. If the
death penalty is appropriate for anyone, it is appropriate for
them. However, that personal belief has no relevance to the
legal issues before us and must be separated from the judicial
decision we are required to render. The words of the
Constitution can be given their plain meaning only as applied by
the majority decision. To analyze away the words of the
Constitution is to engage in an act of corroborating one’s own
belief that the Governor’s actions were unwise.
The distribution of power among the three branches of
government rests on a delicate balance. It is a fundamental
element of American government. S. Euclid v. Jemison (1986), 28
Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136. We are urged by the
successor in the office of governor to exercise our
constitutional power to invalidate the commutations and a pardon
of his predecessor in office. Restraint should characterize the
exercise of judicial power in such a case. If we abandon the
words of the Constitution as adopted by the citizens of Ohio in
1851, we invade both the authority of the executive branch and
the will of the people.
For the foregoing reasons, I concur, albeit regretfully, in
the per curiam opinion.
Alice Robie Resnick, J., concurring in part and dissenting
in part.
I
By a stroke of a pen a Governor is authorized by today’s
opinion to overturn the death penalty verdicts of judges and
juries which have been upheld by countless state appellate
judges, Supreme Court justices and federal court judges. Today’s
per curiam opinion says it is perfectly acceptable for a Governor
in the last days of his or her administration to grant
commutations to whomever he or she desires without first awaiting
the APA investigation and report. The basis of such a holding is
that the Constitution does not specifically authorize regulations
“as to the manner of applying for commutations.” As a result,
only full and absolute pardons are “subject to” any regulations
enacted by the General Assembly.
The per curiam opinion misconstrues Section 11, Article III,
and in the process engages in an inaccurate interpretation of the
scope of the Governor’s pardoning power.6 While I agree that the
pardon purportedly granted by former Governor Celeste should be
invalidated, it is clear to me that the commutations he
purportedly granted also should fail for the very same reason
advanced for the failure of the pardon. The per curiam opinion
proclaims that Section 11, Article III is unambiguous, and
essentially ends its analysis of the “subject to” clause at that
point. However, this case involves constitutional interpretation
which is not readily resolvable by resort solely to hornbook
rules of construction, as if in a vacuum, but must be considered
with an eye on the historical context underlying Section 11,
Article III’s evolution into its current form. The per curiam
opinion, in focusing on a supposed semantical difference between
pardons and commutations, does not grasp the importance of this
historical development, and thereby fails to comprehend the
entire scope of this issue. Section 11, Article III is certainly
capable of more than one interpretation, and the reference to the
“manner of applying for pardons” is not so clear as the per
curiam opinion rashly presumes. Given that the constitutional
provision is ambiguous, resort to constitutional history is not
only appropriate, it is crucial. Even a cursory consideration of
constitutional history reveals that the per curiam opinion is
erroneous.
The drafters of Section 11, Article III were concerned with
precisely the type of abuse of pardoning power which former
Governor Celeste accomplished in his last days in office. As
this case graphically illustrates, the power to commute is just
as easily abused as is the power to pardon. Former Governor
Celeste intentionally bypassed established procedures and flouted
the constitutional limits on his clemency authority, ignoring the
procedural safeguards the Constitution authorizes the General
Assembly to put into place regarding the application process for
executive clemency. Members of this court are unwilling to give
effect to the binding statutory prerequisite for exercise of the
clemency power, finding that an APA investigation and
recommendation (along with the accompanying required
notifications relating to victims’ rights) are conditions
precedent for the Governor’s grant of a pardon, but that no APA
involvement is necessary for a commutation.7
This seems an especially curious result when one considers
that both the pardon and the commutation are aspects of the
Governor’s clemency power, which has as its source Section 11,
Article III. Given the per curiam opinion, when the Governor
considers whether to pardon an applicant for clemency, the
Governor must wait until the APA process is complete before
acting, but if the Governor contemplates a commutation, in the
alternative, for that same applicant, the procedural
investigation safeguards of the APA can be ignored. The near
schizophrenic result engendered by the per curiam opinion makes
the point better than any other argument that the Constitution
does in fact authorize the General Assembly to regulate the
application process for executive clemency, and allows that body
to require APA involvement to ensure that the Governor is able to
make an informed clemency decision, whether the Governor is
considering a pardon or a commutation.
In order to underscore the magnitude of this case, a brief
recapitulation of the circumstances of each defendant’s criminal
conviction is in order and appropriate.
A
Donald Lee Maurer confessed to the killing of seven-year-old
Dawn M. Hendershot. The evidence presented at trial revealed
that on September 29, 1982, Maurer drove to a school in
Massillon, Ohio, to pick up his stepchildren and a few
neighborhood children at the end of the school day. Dawn
Hendershot was the first to arrive. Rather than wait for the
other children to appear, Maurer decided to depart alone with
Dawn. Maurer drove Dawn out into the country to a wooded area,
where he stopped the vehicle, removed a twelve-gauge shotgun, and
led Dawn into the trees. He then began to sexually molest the
girl. At some point Maurer became frightened by his actions and
attempted to strangle Dawn with her sweater. When she started to
struggle, Maurer shot Dawn in the back, covered her lifeless body
with twigs and leaves, and left the scene to return to his home.
A jury found Maurer guilty of aggravated murder with a
specification, kidnapping, and gross sexual imposition. The
trial court adopted the jury’s recommendation that the defendant
be executed. His conviction and sentence were affirmed on direct
appeal to the court of appeals and this court. See State v.
Maurer (Feb. 13, 1984), Stark App. No. CA-6166, unreported, 1984
WL 4469, affirmed (1984), 15 Ohio St.3d 239, 15 OBR 379, 473
N.E.2d 768. On January 10, 1991, former Governor Celeste
purportedly commuted Donald Maurer’s death sentence to life
imprisonment without parole eligibility.
B
Leonard Jenkins was
convicted of aggravated murder with specifications, eight counts
of robbery, one count of attempted murder and five counts of
kidnapping. The convictions stemmed from a robbery that occurred
in Cuyahoga County, Ohio, on October 21, 1981. Jenkins and
another individual entered a branch office of National City Bank
and held bank employees and patrons at gunpoint. During the
robbery, Jenkins observed a police officer, Anthony Johnson,
approach the front door of the bank and peer inside. Upon seeing
the officer, Jenkins stated that he and his partner would have to
shoot their way out of the bank. Officer Johnson was mortally
injured by a gunshot to the head when Jenkins exited the bank and
the two exchanged gunfire. A jury recommended and the trial
court imposed a sentence of death. His conviction and sentence
were affirmed on direct appeal to the court of appeals and to
this court. See State v. Jenkins (Feb. 24, 1984), Cuyahoga App.
No. 45231, unreported, 1984 WL 14150, affirmed (1984), 15 Ohio
St.3d 164, 15 OBR 311, 473 N.E.2d 264. On January 10, 1991,
former Governor Celeste purportedly commuted Jenkins death
sentence to life imprisonment without parole eligibility.
C
A jury convicted Debra Brown of the murder of fifteen-year-
old Tonnie Storey. The evidence showed that on the morning of
July 11, 1984, Tonnie left her home in Cincinnati to attend
summer school. She was last seen on that day with a man
identified as Alton Coleman and a woman matching Brown’s
description. On July 19, 1984, a realtor entered an abandoned
building that he was preparing to show to a prospective buyer and
found a partially decomposed body. Scrawled above the body on
the wall were the words “I hate niggers death.” Police
ultimately identified the body as that of Tonnie Storey. The
evidence presented during trial included Brown’s fingerprints on
a Michael Jackson button Tonnie had been wearing the day she
disappeared. Brown admitted to another individual that she had
killed Tonnie “for her clothes” and that she, Brown, “had to do
what [she] had to do.” The state further introduced evidence
linking Brown to at least five other murders and several other
attempted murders or assaults. After finding Brown guilty of
Tonnie’s murder, the jury recommended and the trial judge imposed
a sentence of death. Her conviction and sentence were affirmed
in a direct appeal to the court of appeals and to this court.
See State v. Brown (Apr. 15, 1987), Hamilton App. No. C-850434,
unreported, 1987 WL 9743, affirmed (1988), 38 Ohio St.3d 305, 528
N.E.2d 523. On January 10, 1991, former Governor Celeste
purportedly commuted Brown’s death sentence to life imprisonment
without parole eligibility.
D
On the morning of August 5, 1983, Willie Lee Jester entered
an AmeriTrust Company branch office in Cleveland, Ohio, soon
after it opened for the day. Jester approached Patrolman
Benjamin Grair, the bank’s security guard, while he was sitting
at a desk speaking on the telephone and shot him in the chest.
Jester then ran to the bank counter, leaped over it, and took a
total of $3,122 from a teller’s drawer. Patrolman Grair died as a
result of the gunshot wound to his torso. The fatal injuries to
his heart, right lung and liver were caused by a single, hollow-
point bullet — a bullet specifically designed to cause more
damage than a smooth-point bullet. Upon finding Jester guilty of
aggravated murder with two specifications, the jury recommended
and the trial court imposed a sentence of death. The conviction
and sentence were affirmed in a direct appeal to the court of
appeals and to this court. See State v. Jester (Sept. 26, 1985),
Cuyahoga App. No. 49065, unreported, 1985 WL 8631, affirmed
(1987), 32 Ohio St.3d 147, 512 N.E.2d 962. On January 10, 1991,
former Governor Celeste purportedly commuted the death sentence
to life imprisonment without parole eligibility.
E
A three-judge panel in Hamilton County convicted and
sentenced Elizabeth Green to death for aggravated murder and to a
consecutive term of ten to twenty-five years for aggravated
robbery. The convictions stemmed from the killing and robbery of
Thomas Willis, a neighbor of one of Green’s friends, Belinda
Coulter. On January 4, 1988, Coulter sold Willis some food
stamps so that she and Green could in turn use the cash to
purchase drugs. Later that day, Green, with Coulter, entered
Willis’s apartment wearing socks on her hands so as to avoid
leaving any fingerprints. Green then stabbed Willis and took his
money. Thomas Willis died as a result of one hundred nine knife
wounds to his neck, torso and arms. Green admitted to a
psychologist that she had participated in the attack but claimed
she had stabbed Willis only three times. Green’s conviction and
sentence of death were affirmed in a direct appeal to the court
of appeals and to this court. See State v. Green (July 11,
1990), Hamilton App. No. C-880504, unreported, 1990 WL 95357,
affirmed (1993), 66 Ohio St.3d 141, 609 N.E.2d 1253. On January
10, 1991, former Governor Celeste purportedly commuted Green’s
death sentence to life imprisonment without parole eligibility.
F
A jury convicted Lee “Crazy Horse” Seiber of aggravated
murder with three death penalty specifications in connection with
the killing of Stanton Norris. On May 21, 1985, Seiber entered a
Columbus bar for the second time that evening, carrying a loaded,
cocked .38 caliber revolver. An accomplice stood at the closed
front door, shotgun in hand, barring anyone from leaving. Seiber
had returned to the bar to confront two men, Alvie and Louis
Schoenberger, one of whom had criticized Seiber during his
earlier visit for making lewd remarks to a woman in the bar.
After forcing the brothers to lie face down on the floor and
holding them at gunpoint, Seiber threatened the crowd and tried
to find out who were friends of the Schoenbergers. Stanton
Norris, who was drinking a beer at the bar, admitted to being a
friend of the Schoenbergers. When Norris refused to comply with
his order to lie face down on the floor, Seiber grabbed Norris by
the shoulders and fatally shot him in the back. The jury
recommended and the trial court imposed a sentence of death.
Seiber’s conviction and sentence were affirmed on direct appeal
to the court of appeals and to this court. See State v. Seiber
(June 8, 1989), Franklin App. No. 87AP-530, unreported, 1989 WL
61733, affirmed (1990), 56 Ohio St.3d 4, 564 N.E.2d 408. On
January 10, 1991, former Governor Celeste purportedly commuted
the death sentence to life imprisonment without parole
eligibility.
G
Rosalie Grant was convicted by a jury of two counts of
aggravated murder, each with two death penalty specifications,
and one count of aggravated arson. The evidence presented at
trial revealed that around 6:00 a.m. on April 1, 1983, a fire
ignited in the bedroom of Grant’s two infant sons, one-year-old
Donovan and two-year-old Joseph. The boys died in the fire as a
result of severe burns and smoke inhalation. Grant, however,
escaped from the burning house entirely unharmed, fully dressed
in pants, jacket, shoes and socks, with unsinged hair, no soot on
her face or eyes, and free of any signs of smoke inhalation.
Other than Grant’s claim that she had tried to save her babies
when the smoke first awoke her, there was no evidence presented
that Grant had attempted to put out the fire or to save the
children. Arson investigators determined that the fire had been
intentionally set and fueled by a liquid accelerant. No
determination was made as to the exact type of accelerant that
had been used. The evidence also revealed that approximately two
weeks before the fire, Grant had purchased $5,000 worth of life
insurance for each of the boys with Grant listed as the
beneficiary. Grant had not purchased a policy for herself or for
her three-year-old daughter Shylene, who was living elsewhere.
Furthermore, a can of charcoal lighter fluid, bearing Grant’s
fingerprints, and a partially burned kitchen chair matching those
in Grant’s home were found four days after the fire in a nearby
vacant house. The conviction and sentence were affirmed on
direct appeal to the court of appeals and to this court. See
State v. Grant (Nov. 9, 1990), Mahoning App. No. 83 C.A. 144,
unreported, 1990 WL 176825, affirmed (1993), 67 Ohio St.3d 465,
620 N.E.2d 50. On January 10, 1991, former Governor Celeste
purportedly commuted Grant’s death sentence to life imprisonment
with no restriction as to parole eligibility.
H
According to the court of appeals’ opinion, in May 1979,
Ralph F. DeLeo pled guilty to the murder of Dr. Walter Bond.
After pleading guilty, DeLeo was immediately sentenced to an
indefinite term of fifteen years to life imprisonment. In 1989,
the court of appeals affirmed the trial court’s dismissal of
DeLeo’s petition for enforcement of a plea bargain as to parole,
or, in the alternative, a petition to vacate the conviction and
sentence. See State v. DeLeo (Sept. 19, 1989), Franklin App. No.
89AP-107, unreported, 1989 WL 107559. On January 10, 1991,
former Governor Celeste purportedly commuted DeLeo’s sentence to
time served.
I
A jury convicted John Salim of felonious assault with
violence and gun specifications in connection with an incident
that occurred on January 23, 1988. The evidence, as set forth in
the court of appeals’ opinion, showed that on that date Salim
fired a gun at William Terbrack as the latter prepared to drive
out of a hardware store parking lot. A bullet was retrieved from
the window post on the passenger side of Terbrack’s car. Salim
was sentenced to three years’ actual incarceration for the gun
specification to be served prior to a three-to fifteen-year term
for felonious assault. The conviction and sentence were affirmed
on appeal to the court of appeals. See State v. Salim (May 17,
1990), Cuyahoga App. Nos. 56925 and 57964, unreported, 1990 WL
66467. On January 10, 1991, former Governor Celeste purportedly
granted Salim a full pardon. As the above facts indicate, among
those who purportedly received clemency from former Governor
Celeste were some of the most notorious killers on death row.
Celeste made the clemency decisions without awaiting the APA
investigation and report. Yet, given the per curiam opinion,
only the unfortunate John Salim, who supposed he had received a
full pardon (as opposed to a commutation), must pay the price for
Celeste’s wholesale disregard of the Constitution.
II
While I agree with the per curiam opinion that Section 11,
Article III of the Ohio Constitution authorizes the General
Assembly to prescribe procedural regulations as to the
application process for executive clemency, my interpretation of
Section 11, Article III convinces me that the authority granted
by the “subject to” clause to regulate “the manner of applying
for pardons” includes commutations. The per curiam opinion pays
lip service to the history behind the evolution of current
Section 11, Article III, without realizing the consequences of
that evolution. A thoughtful analysis of the addition of the
“subject to” requirement of the Ohio Constitution should include
consideration of the reason that clause was added. The per
curiam opinion fails to consider and put into effect the
intention of the drafters of Section 11, Article III.
At the 1850-1851 Ohio Constitutional Convention, the debate
on Section 11, Article III was limited to the so-called reporting
requirement, the last sentence of Section 11, Article III. A
delegate, Mr. Riddle, commenting on the insertion of the clause,
stated: “It was known that the exercise of [the pardoning] power
was much complained of. * * * [I]t was but too easy to excite the
sympathies of men in behalf of the convicted criminal. Gentlemen
of the committee were aware from their own experience that they
had often put their names to papers soliciting reprieves and
pardons on the representation of persons, in whom they had
confidence. They knew also that persons in the same manner might
influence the governor; and they further knew that on the
strength of that influence brought to bear on him by the names of
persons standing high in society he often exercised that power in
instances in which the public could not see any propriety. The
power, no doubt, had been abused, but when they looked into the
entire matter they would find that no blame could be attached to
the Governor.” 1 Report of the Debates and Proceedings of the
Convention for the Revision of the Constitution of the State of
Ohio 1850-1851(1851) 306-307.
In choosing to alter its constitutional provision on
executive clemency, Ohio adopted a provision remarkably similar
to that incorporated by the state of New York into its
Constitution of 1846.8 Only a brief discussion of the New York
debates is necessary to illustrate that Ohio’s drafters of
Section 11, Article III must have been motivated by the same
concerns as New York’s drafters when they decided to place
restrictions on the Governor’s pardoning power. The recorded
proceedings of the New York Constitutional Convention which
authored the provision altering that state’s executive pardoning
powers reveal that the provision was extensively debated. In
particular, several amendments were offered relative to
restrictions on the Governor’s pardoning power, including one, by
a Mr. Chatfield, that would have greatly curtailed the Governor’s
pardoning power by making it subject to “such restrictions as may
be prescribed by law.” Report of the Debates and Proceedings of
the Convention for the Revision of the Constitution of the State
of New York (1846) 351. This Chatfield amendment ultimately was
rejected, id. at 353, and the wording “subject to such
regulations as may be provided by law relative to the manner of
applying for pardons,” proposed by Mr. Taylor, was adopted. In
support of his position, Mr. Taylor “agreed that there should be
some conditions relative to the manner of applying the power, and
he would offer an amendment to carry his idea out in relation to
that. This would leave the Legislature to provide rules for its
carrying out, leaving the exercise of the power entirely with the
Governor.” Id. at 357.
Since the “subject to” clause of Section 11, Article III of
the Ohio Constitution mirrors so closely the language of New
York’s comparable section, it is fair to assume that the Ohio
delegates of 1850-1851 shared New York’s concerns about abuses of
the pardoning power, while also sharing the conviction of New
York’s delegates that the Governor’s ultimate discretion to
exercise the pardoning power should not be infringed. The
“subject to” clause is a compromise which reflects those
concerns.
Ohio’s 1802 Constitution, in Section 5, Article II, gave the
Governor “the power to grant reprieves and pardons.” No mention
of commutations was included in this authorization. The word
“commutations” was added in 1851 to Section 11, Article III at
the Constitutional Convention of 1850-1851, which also added the
“subject to” clause at the end of the same sentence.
“The terms ‘pardon’ and ‘reprieve’ have been adopted into
the constitution of this state without defining or explaining
them.” Sterling v. Drake (1876), 29 Ohio St. 457, 460. Just as
“pardon” and “reprieve” are not defined in the Constitution,
“commutation” also is not defined, so that we must look to the
common law for its meaning. Although current statutes define
these terms,9 those statutory definitions do not necessarily
control the consideration of their meanings in the Constitution.
In State ex rel. Gordon v. Zangerle (1940), 136 Ohio St.
371, 375, 16 O.O. 536, 538, 26 N.E.2d 190, 194, the court
considered the “scope of the executive power” conferred by
Section 11, Article III, determining that the common-law meaning
of the terms “reprieves” and “commutations” are “not materially
different” from the statutory definitions (which are the same
today). Thus, the court noted, a reprieve was defined as “‘the
temporary suspension by the Governor of the execution of a
sentence,’10 and commutation of sentence as ‘the substitution of
a lesser for a greater punishment.’” Id.The Gordon court went on to consider the definition of
“pardon” and the different forms of pardon:
“A pardon may be absolute or conditional, full or partial;
and a conditional pardon may be granted upon conditions precedent
or subsequent.
“A full pardon purges away all guilt and leaves the
recipient from a legal standpoint, in the same condition as if
the crime had never been committed (Knapp v. Thomas, 39 Ohio St.,
377, 381, 48 Am. Rep., 462); a partial pardon releases from
punishment without remission of guilt. Lee v. Murphy, 63 Va. (22
Gratt.), 789, 12 Am. Rep., 563. The essential characteristics of
full and partial pardons are such that either may be granted with
or without conditions. * * *
“ An absolute pardon sets the accused free from the custody
of the law, prevents further court action, terminates existing
probation and makes anticipated probation impossible. * * *
“The power of executive pardon carries with it, as
incidental thereto, the right to impose such valid conditions,
precedent or subsequent, as the pardoning power may determine.* *
*” Gordon, 136 Ohio St. at 376-377, 16 O.O. at 538, 26 N.E.2d at
194.
The per curiam opinion appears to equate “pardon” with “full
and unconditional pardon.” However, as the passage from Gordon
illustrates, the word “pardon” encompasses several concepts. A
“full and unconditional” pardon, which purges all guilt and
places the recipient in the same position as if no crime had been
committed, is only one subset of the several types of pardons.
Another type of pardon, a “partial” pardon, which releases from
punishment without remitting guilt, appears to be virtually
synonymous with a “commutation,” which substitutes a lesser for a
greater punishment, but does not remit guilt. Any definition of
“pardon” which limits its meaning to clemency actions of the
Governor that remit guilt is a narrow definition. While this
narrow definition may appropriately be applied in some
situations, the common-law meaning of “pardon,” when applied in
the broader sense, also can easily encompass the concept of
commutation, so that commutation is a subset of pardon.
The per curiam opinion’s citation of State ex rel. Atty.
Gen. v. Peters (1885), 43 Ohio St. 629, 4 N.E. 81, does not
establish that pardons and commutations are in all cases mutually
exclusive terms. In fact, the per curiam opinion includes
Peters’s definition of pardon among the material quoted from that
case: “A pardon discharges the individual designated from all or
some specified penal consequences of his crime. It may be full
or partial, absolute or conditional.”
(Emphasis added.) Id. at 650, 4 N.E. at 87. By the Peters
definition, a partial pardon (which discharges the individual
from “some * * * penal consequences of his crime”) is a pardon
just as a “full and absolute pardon” is a pardon. The very
language quoted belies the per curiam opinion’s conclusion. The
constitutional meaning of “pardon,” as well as the common-law
meaning of the word, is by no means precise. It is not possible,
as the per curiam opinion attempts, to conclude that pardons and
commutations are two totally distinct concepts. Recognition of
the ambiguity in the word “pardon” instead leads to the
conclusion that commutation is a subset of pardon when pardon is
used in the inclusive sense, and that the “subject to” clause
clearly does provide the authority to regulate commutations.
In this case, defendant Ralph DeLeo purportedly received a
commutation to time served, while defendant John Salim
purportedly received a full pardon. The per curiam opinion
upholds DeLeo’s purported commutation, but invalidates Salim’s
purported full pardon. Yet, under the definition of “pardon” set
forth in Peters and in Gordon, what DeLeo purportedly received
could just as easily be termed a partial pardon, in which case,
presumably according to the per curiam opinion, Governor Celeste
would have had to await the APA investigation and recommendation
before granting clemency to time served. This point, as much as
any other, belies the per curiam opinion’s assertion that the
word “pardon” is used with precision throughout Section 11,
Article III.
When Section 11, Article III was adopted in 1851 and the
power of commutation was specifically mentioned as one of the
Governor’s clemency powers, the delegates to the Constitutional
Convention of 1850-1851 were either conferring a new power for
the Governor to exercise, or they were explicitly conferring a
power which had been implicit in the 1802 Constitution’s
conferral of the power to grant pardons. If the delegates were
conferring a new power, then it would be safe to assume that the
power to grant commutations was considered to be something
different from the power to grant pardons, and was not to be made
subject to regulations “as to the manner of applying for
pardons.” But if the delegates were confirming a power which
already existed under the power to grant pardons, then it may be
fairly concluded that the use of the phrase “as to the manner of
applying for pardons” in the “subject to” clause was meant to
include the commutation power. If the latter is the case, and if
the word “pardon” is broad enough to encompass the word
“commutation” in this way, then Section 11, Article III uses
“pardon” in two senses: in a limited way as one aspect of the
clemency powers in the first clause of the first sentence of
Section 11, Article III, and also, in the “subject to” clause, in
an expansive way that includes the concept of “commutation.”
The records of the debates of the Ohio Constitutional
Convention of 1850-1851 give no insight into why the “subject to”
clause of Section 11, Article III uses the words “as to the
manner of applying for pardons,” or into whether Section 5,
Article II of the Ohio Constitution of 1802 conferred on Ohio’s
Governor the power to commute sentences.
However, the discussions regarding the addition of the
reporting requirement to the executive clemency provision of the
Constitution at the 1850-1851 Constitutional Convention do reveal
that many of the delegates indiscriminately used the term
“pardon” to refer generically to the Governor’s clemency power.
One delegate, Mr. Riddle, stated that “[t]he [Executive
Department] committee inserted that clause [the reporting
requirement] into the report for the purpose, that the
legislature at its annual or biennial sessions might know what
the Governor had done during the vacation in the exercise of the
pardoning power.” (Emphasis added.) 1 Debates and Proceedings,
supra, at 306. Because the reporting requirement as proposed
required the Governor to communicate “each case of reprieve,
commutation, or pardon granted,” id. at 300,11 Mr. Riddle thus
used the inclusive term “pardoning power” to refer to the power
to grant any type of executive clemency.
Similarly, another delegate, Mr. McCormick, thought that the
provision requiring the Governor to report each reprieve,
commutation, or pardon granted “required nothing to be
communicated to the Legislature except the names of the persons
pardoned. If men had interfered improperly in getting reprieves
for criminals, there was nothing in that section as it now stood,
which required the naming of the persons who interfered to obtain
it * * *. The only object to be gained by this section was the
ascertainment of the number of prisoners pardoned * * *.”
(Emphasis added.) Id. at 307. Mr. McCormick thus used the word
“pardon” in a broad sense to refer to any act of executive
clemency.
Another delegate, Mr. Stanton, opposed a proposal to further
require the Governor to report the names of all persons who had
applied for a reprieve, pardon or commutation. “He supposed that
the latter part of the section was intended for the purpose of
making the Governor accountable to the people for the exercise of
the pardoning power, and to inform them whom he had pardoned.”
(Emphasis added.) Id.
Yet another delegate, Mr. Larwill, stated that “[t]he
Governor would no doubt have good reasons for exercising the
pardoning power.” (Emphasis added.) Id.
These delegates’ statements persuasively refute defendants’
argument that the framers of Section 11, Article III used the
word “pardon” in a narrow sense that did not include the concept
of commutation. Many of the delegates at the Constitutional
Convention of 1850-1851 used “pardoning power” to mean clemency
power. Furthermore, the word “pardon” was used to refer to any
executive exercise of the clemency power.
Not long after Ohio (in 1851) had amended its Constitution’s
executive clemency provision to specifically include the power to
grant commutations, the United States Supreme Court decided Ex
Parte Wells (1855), 59 U.S. (18 How.) 307, 15 L.Ed. 421. In the
words of the court:
“The petitioner was convicted of murder in the District of
Columbia, and sentenced to be hung on the 23d of April, 1852.
President Fillmore granted to him a conditional pardon. The
material part of it is as follows: ‘For divers good and
sufficient reasons I have granted, and do hereby grant unto him,
the said William Wells, a pardon of the offense of which he was
convicted — upon condition that he be imprisoned during his
natural life; that is, the sentence of death is hereby commuted
to imprisonment for life * * *.’” Id. at 308, 15 L.Ed. at 423.
Wells petitioned for a writ of habeas corpus, pointing out
that Section 2, Article II of the United States Constitution
authorizes the President to grant pardons and reprieves, but does
not explicitly authorize the President to place conditions upon a
grant of pardon. Wells argued that Section 2, Article II
authorizes only absolute pardons, and that since he had been
pardoned under the authority conferred by that section, he must
have received such an absolute pardon with a void condition, so
that his sentence actually was remitted entirely. Id. at 309, 15
L.Ed. at 423. The Circuit Court of the District of Columbia
refused the application, and the Supreme Court affirmed.
The court in Ex Parte Wells determined that the President’s
power to grant “conditional pardons”12 (commutations) was
implicit within the power to grant “reprieves and pardons”
conferred by Section 2, Article II of the United States
Constitution. In so determining, the court found that the
petitioner’s argument was mistaken, “arising from the want of due
consideration of the legal meaning of the word pardon. It is
supposed that it was meant to be used exclusively with reference
to an absolute pardon, exempting a criminal from the punishment
which the law inflicts for a crime he has committed.” 59 U.S.
(18 How.) at 309, 15 L.Ed. at 423.
The Ex Parte Wells court determined that the word “pardon”
is not so narrow as to include only an “absolute pardon”: “In
the law it has different meanings, which were as well understood
when the Constitution was made as any other legal word in the
Constitution now is.” Id. at 310, 15 L.Ed. at 423. The court
went on to state that “[i]n this view of the constitution, by
giving to its words their proper meaning, the power to pardon
conditionally is not one of inference at all, but one conferred
in terms.
“The mistake in the argument is, in considering an incident
of the power to pardon the exercise of a new power, instead of
its being a part of the power to pardon.” Id. at 315, 15 L.Ed.
at 425.
If the United States Supreme Court determined in 1855 that
the President’s power to commute a sentence is implicit in the
power to pardon, it is reasonable to assume that Ohio’s Governors
operating under the authority of the state’s 1802 Constitution
also had the implicit power to commute sentences, since the 1802
Ohio Constitution’s provision on executive clemency closely
resembled that of the United States Constitution. The delegates
to the 1850-1851 Constitutional Convention therefore did not add
a totally new power to the Constitution by adding the word
“commutations” in adopting Section 11, Article III, but affirmed
a power the Governor already possessed.13
It is apparent that the inclusion of “commutations” in the
first line of Section 11, Article III as one of the Governor’s
clemency powers was done to quiet doubt that the power to pardon
was so limited that it did not include the power to commute. The
meaning of “pardon” was not thereby magically altered into some
precise word with only one connotation. The statements of the
delegates to the 1850-1851 Constitutional Convention indicate the
imprecision of the word “pardon.” In addition, R.C. 2967.01(B)’s
provision that pardons may be “partial,” and the Peters and
Gordon courts’ recognition of partial pardons, further
demonstrate that a “full and absolute pardon” is only one type of
pardon, and that there is an overlap between the generic sense of
the word “pardon” and the concept of commutation. Thus, since
the power of commutation can be understood to be contained within
the power to pardon (in its broad sense) Section 11, Article
III’s provision that the Governor’s power to commute (as well as
to pardon) is “subject * * * to * * * regulations, as to the
manner of applying for pardons” is broad enough to include
regulations as to the manner of applying for commutations.
In short, even though the power to grant commutations may be
a power distinct from the power to grant pardons, the common-law
meaning of “pardon” included “commutation.” Section 11, Article
III clearly subjects the Governor’s power to grant commutations,
as well as the Governor’s power to grant pardons, to authorized
regulations. Hence the Governor’s power to grant commutations
pursuant to Section 11, Article III is subject to regulations
enacted by the General Assembly as to the application process.
Defendants argue that the omission of the word
“commutations” from the “subject to” clause of Section 11,
Article III reflects a conscious decision by the drafters to make
only the manner of applying for pardons, and not commutations,
subject to regulation. Defendants claim that a pardon, because
it remits guilt as well as punishment so that the recipient is in
the same position as if no crime had been committed, is the
ultimate act and was meant to be singled out. They further claim
that a commutation, which merely reduces punishment without
remitting guilt, is a lesser degree of clemency and so was
intentionally left out of the “subject to” clause.
Defendants’ reasoning is specious. Although a “full and
unconditional” pardon is the ultimate pardon, whether a
commutation differs greatly from a pardon is in the eye of the
beholder. To the recipient of a full and unconditional pardon,
that pardon is much different from a commutation (even a
commutation to time served, which would also remit punishment)
because the full pardon relieves the recipient of disabilities
associated with the finding of guilt and wipes the record clean.
However, to society as a whole, there is virtually no difference
between a commutation to time served and a full pardon. As
mentioned earlier, defendant DeLeo in this case was purportedly
granted a commutation to time served, and defendant Salim was
purportedly granted a full pardon, yet the action of Governor
Celeste allowed both offenders to receive clemency despite the
determination of guilt in the judicial system which led to the
imposition of the original longer terms of punishment. Although
some of the purported commutations in this case reduced a death
sentence to life imprisonment without parole, and so did not
effect the release of the recipients, commutations, like pardons,
are very significant actions by the Governor. To permit a
Governor in the last hours of his term to grant commutations
without first applying to the APA would be a devastating blow in
a day when victims’ rights are finally being recognized. One of
the most important factors under R.C. Chapter 2967 is the
requirement that at least three weeks before the APA recommends
any pardon or commutation, notice of the pendency of the clemency
application must be “sent to the prosecuting attorney and the
judge of the court of common pleas of the county in which the
indictment against the convict was found.” R.C. 2967.12.
Additionally, under certain circumstances the APA must send a
similar notice to the victim of the crime, or to a representative
member of the victim’s family. R.C. 2967.12(B). There are very
good reasons for these requirements. One is to avoid the shock
the families of the victims would encounter when they first hear
over the news that the sentences of the convicts who senselessly
murdered their loved ones were commuted.
Lastly, the doctrine of expressio unius est exclusio
alterius has no application regarding the “subject to” clause.
Even though the words “commutation” and “pardon” appear together
elsewhere three times in Section 11, Article III, the fact that
the “subject to” clause does not specifically mention
commutations does not require a narrow reading of the word
“pardons” in that clause. It is readily apparent that the
“subject to” clause was inserted into Section 11, Article III as
a compromise to regulate the application process invoking the
entire clemency power, and not just the power to grant pardons
(with pardon used in its narrow sense). More significantly,
consideration of the debates of the Ohio Constitutional
Convention of 1850-1851 regarding the reporting requirement of
Section 11, Article III makes it readily apparent that the
drafters did not use the terms “pardon” and “commutation” with
the precision which would require a finding that “pardons” in the
Ssubject to” clause does not include commutations.
Since the application process leading to the Governor’s
grant of clemency was seen as subject to abuse, the drafters of
Section 11, Article III allowed regulations to be prescribed to
curb that abuse. Those regulations were authorized for the
application process, whether initiated by the applicant (or
someone on the applicant’s behalf) or by the Governor, but the
power of the Governor to act is specifically exercised subject to
the regulations. A Governor may in certain situations choose to
grant only a commutation when the applicant may have applied for
a full pardon. The interrelationship of the concepts of pardon
and commutation cannot be ignored, an interrelationship obviously
recognized by the reported statements of the delegates to the
Ohio Constitutional Convention of 1850-1851. It is inconceivable
that the omission of the word “commutation” from the “subject to”
clause was intended to exclude commutations from regulation.
III
From the foregoing it is apparent that Section 11, Article
III authorizes the General Assembly to regulate the application
process for executive clemency, whether it is a pardon or a
commutation which is being considered. I emphatically disagree
with the per curiam opinion’s conclusion that Section 11, Article
III authorizes regulations only with respect to pardons, and not
commutations. The per curiam opinion’s misguided attempt to
sever the supposedly offending portions of R.C. 2967.07 is made
necessary by its equally misguided conclusion that the Governor’s
power to commute sentences is unfettered by the Constitution.
R.C. 2967.07 is constitutional in toto, and makes APA involvement
mandatory before the Governor may grant a pardon or a
commutation.
In view of today’s decision it should become a top priority
of the citizens of this state to ensure that such reckless
behavior on the part of a Governor will not be repeated. It is
ironic that the reasons for amending the Constitution today are
similar to the reasons the 1850-1851 Constitutional Convention
amended the Constitution of 1802. The delegates to the 1850-1851
Constitutional Convention felt the need to enumerate the
Governor’s pardoning powers. Even though the 1802 Constitution
did give the Governor power to commute, there remained a small
degree of doubt (later put to rest by the United States Supreme
Court in Ex Parte Wells) that it did not, so the Ohio
Constitution was amended to clarify the matter. In much the same
way, it appears that our Constitution must be amended to specify
that the manner of applying for clemency includes applications
for commutations as well as for pardons. While it is clear to me
that no such amendment should be necessary, members of this court
do not agree. After this case, I am strongly convinced that it
is time for the people of Ohio to consider a constitutional
amendment placing explicit and unavoidable limitations on the
Governor’s clemency power (including the power to pardon and to
commute, but not to reprieve), to go so far as to place specific
limits on the Governor’s discretion in the use of the power.
While I agree that the pardoning power is an indispensable aspect
of our criminal justice system, the pardoning power is too
important to be trusted with relatively few conditions to the
unfettered whims of a lame duck Governor.
I would reverse the judgment of the court of appeals in case
No. 93-1165 and reinstate the declaratory judgment of the trial
court that the purported pardon and commutations are invalid.
Douglas and F.E. Sweeney, JJ., concur in the foregoing
opinion.
FOOTNOTES:
6. It is appropriate to refer to the Governor’s “pardoning
power” synonymously with “clemency power.” The power to commute
has historically been understood to be an aspect of the pardoning
power. For a thorough discussion of the development and scope of
the pardoning power of the President of the United States, see
Hoffa v. Saxbe (D.D.C.1974), 378 F.Supp. 1221.
7. With respect to the manner in which the Ohio Adult Parole
Authority functions, the trial court found as follows:
“When the APA receives a clemency application, the
application is referred to the investigation section of the APA,
which prepares a report on the details of the crimes, the
applicant’s adjustment to prison or the community, and the
support available to the applicant in the community. When the
completed investigation report is received by the Parole Board,
an initial vote is taken whether to immediately recommend against
granting clemency or to conduct a hearing. If a hearing is to be
conducted, notice is sent to the local Prosecutor, the sentencing
Judge, and those victims or victims’ family members designated to
receive notice by R.C. §§ 4943.04(A) and 2945.07(A), and as
required by R.C. § 2967.12(A) and (B). These obviously
interested individuals are then given the opportunity to submit
comments to the APA on whether the applicant should receive
clemency. Generally, these individuals are allowed three weeks’
time within which to respond to the APA notice. At the hearing,
consisting of a panel of at least a majority of the members of
the Parole Board, the Board will consider the investigation, the
microfiche records of the Ohio Department of Rehabilitation and
Corrections, and the testimony of the applicant. After a vote is
taken, a report is then prepared for the signature of the board
members. See R.C. §§ 2967.07 and 2967.12. Usually, there is a
two to three week delay after the vote is taken to circulate the
recommendations among the voting Board members, who travel to
each of Ohio’s 22 penal institutions attending hearings. After
signature, the APA submits the written report to the Governor
which includes a brief statement of the facts in the case,
together with the recommendation of the APA. In such instances
that an application is submitted directly to the Governor, it is
still required to be channeled back through the APA review
process pursuant to R.C. § 2967.07.”
8. Section 5, Article IV of the New York Constitution of 1846
provided:
“The governor shall have the power to grant reprieves,
commutations, and pardons after conviction, for all offenses
except treason and cases of impeachment, upon such conditions and
with such restrictions and limitations, as he may think proper,
subject to such regulation as may be provided by law relative to
the manner of applying for pardons. * * * He shall annually
communicate to the legislature each case of reprieve,
commutation, or pardon granted, stating the name of the convict,
the crime of which he was convicted, the sentence and its date,
and the date of the commutation, pardon or reprieve.” New York
State Constitution Annotated (1938) 54.
When Ohio’s Constitutional Convention of 1850-1851 discussed
the substance of what was to become Section 11, Article III of
the Constitution of 1851, the Standing Committee on the Executive
Department presented for debate a draft version on executive
clemency which very closely resembled Section 5, Article IV of
the New York Constitution of 1846. For the language of this
draft version, see 1 Report of the Debates and Proceedings of the
Convention for the Revision of the Constitution of the State of
Ohio 1850-1851 (1851) 300. The text of the draft version is
reproduced in footnote 6 of this opinion.
9. R.C. 2967.01(B) provides:
“‘Pardon’ means the remission of penalty by the governor in
accordance with the power vested in him by the constitution.
Pardons may be granted after conviction and may be absolute and
entire, or partial, and may be granted upon conditions precedent
or subsequent.”
R.C. 2967.01(C) provides:
“‘Commutation’ or ‘commutation of sentence’ means the
substitution by the governor of a lesser for a greater
punishment. A sentence may be commuted without the consent of
the convict, except when granted upon the acceptance and
performance by the convict of conditions precedent. After
commutation, the commuted sentence shall be the only one in
existence. The commutation may be stated in terms of commuting
from a named crime to a lesser included crime, in terms of
commuting from a minimum and maximum sentence in months and years
to a minimum and maximum sentence in months and years, or in
terms of commuting from one definite sentence in months and years
to a lesser definite sentence in months and years.”
R.C. 2967.01(D) provides:
“‘Reprieve’ means the temporary suspension by the governor
of the execution of a sentence. A reprieve may be granted
without the consent of and against the will of the convict.”
10. I agree that reprieves do not fall within the broader
meaning of “pardons.” Reprieves and pardons are recognized as
being fundamentally different at common law because a reprieve is
temporary. However, pardons and commutations are not recognized
as fundamentally different at common law, but are interrelated
concepts. Even though the power to grant reprieves often is said
to come within the scope of the Governor’s pardoning power, a
constitutional provision allowing procedural regulation of “the
manner of applying for pardons” does not allow for regulation of
the manner of applying for reprieves. Because of this
fundamental difference between reprieves and pardons, Section 5,
Article II of Ohio’s 1802 Constitution, and Section 2, Article II
of the United States Constitution each conferred upon the
executive the power to grant both reprieves and pardons.
The General Assembly has recognized the fundamental
difference between pardons and reprieves. R.C. 2967.08 provides
that “[t]he governor may grant a reprieve for a definite time to
a person under sentence of death, with or without notices or
application.” This provision obviously recognizes the importance
of prompt action in some reprieve cases and makes clear that
procedural requirements need not be fulfilled before a reprieve
may be granted. In addition, R.C. 2967.03, authorizing the Adult
Parole Authority to recommend a pardon, commutation, or reprieve
to the Governor, provides procedural requirements which must be
fulfilled before the authority may recommend a pardon or
commutation, but any such requirements regarding the
recommendation of a reprieve are conspicuously absent.
11. As reported by Mr. Leadbetter from the Standing Committee on
the Executive Department, the provision later incorporated into
the Constitution of 1851 as Section 11, Article III originally
read:
“Sec. 11. The Governor shall have the power to grant
reprieves, commutations and pardons after conviction, for all
offenses, except treason, and cases of impeachment, upon such
conditions, and such restrictions and limitations as he may think
proper, subject to such regulations as may be provided by law,
relative to the manner of applying for pardons. Upon conviction
for treason, he shall have power to suspend the execution of the
sentence, until the case shall be reported to the Legislature at
its next meeting, when the Legislature shall either pardon,
commute the sentence, direct the execution of the sentence, or
grant a further reprieve. He shall annually communicate to the
Legislature each case of reprieve, commutation, or pardon
granted; stating the name of the convict, the crime for which he
was convicted, the sentence and its date, and the date of the
commutation, pardon or reprieve.” 1 Debates and Proceedings,
supra, at 300.
The report of the Executive Committee reached its present
form as Section 11, Article III after proposed amendments to the
committee report were debated by the delegates and voted on.
12. The court of appeals in the case sub judice went to some
lengths to distinguish between a commutation and a conditional
pardon, basing the distinction in part upon the necessity of
acceptance by the recipient before a conditional pardon is valid.
However, one major factor that separates the two is the
attachment of a condition, which is what makes a conditional
pardon “conditional.” In the same way that a pardon can have a
condition attached, a commutation can also be subject to a
condition. It is when the condition is attached that the
recipient must consent before the conditional pardon or
conditional commutation is effective. No consent is required
when no condition is attached to the pardon or commutation. In
re Victor (1877), 31 Ohio St. 206, paragraph three of the
syllabus, recognized that in Ohio, a commutation is not the same
as a conditional pardon, even though the Ex Parte Wells court
stated that it was for purposes of interpreting the United States
Constitution. Since Victor presumed that a commutation is “for
the culprit’s benefit,” no acceptance of an unconditional
commutation is required for its validity. See 31 Ohio St. 206,
at paragraph three of the syllabus.
13. One researcher has determined that the power to commute is
implicit within the power to pardon:
“The [Ohio] Constitutional Convention of 1851 added the term
‘commutation’ to the pardon provision in present section 11 of
Article III. However, the term ‘commutation,’ although not used
in early constitutions, has long been interpreted as being
included within pardon, and texts have often not disassociated
the power to commute from the power to pardon.” 3 Ohio
Constitutional Revision Commission 1970-1977, Proceedings &
Research of the Legislative-Executive Committee (Mar. 31, 1972),
Research Study No. 11.