Judges: WRITTEN BY: Laurie Smith Camp, Deputy Attorney General
Filed Date: 3/22/2001
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Rachel E. Bauch Administrative Assistant Nebraska Board of Pardons Dear Ms. Bauch:
You have asked our opinion regarding the effect of Neb. Rev. Stat. §
Any person heretofore or hereafter sentenced to be punished for any felony, when the sentence is other than confinement in a Department of Correctional Services adult correctional facility, shall be restored to civil rights upon receipt from the Board of Pardons of a warrant of discharge, which shall be issued by such Board upon receiving from the sentencing court a certificate showing satisfaction of the judgment and sentence entered against such person.
You asked three questions regarding the application of §
We conclude that the Board of Pardons is not required to issue a warrant of discharge, and that the restoration of any civil rights which are forfeited by an offender upon conviction of a felony is a matter within the discretion of the Board of Pardons.
Nebraska Constitution, art.
The Governor, Attorney General and Secretary of State, sitting as a Board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment.
Nebraska Constitution, art.
No person shall be qualified to vote who . . . has been convicted of . . . [a] felony under the laws of the state or of the United States, unless restored to civil rights.
Nebraska Constitution, art.
[A]ny person who shall be convicted of having sworn falsely to, or of violating his said oath shall forfeit his office, and thereafter be disqualified from holding any office of profit or trust in this state unless he shall have been restored to civil rights.
Nebraska Constitution, art.
No person convicted of a felony shall be eligible to any such office [of trust or profit under the Constitution or laws of this state] unless he shall have been restored to civil rights.
Before 1959, §
The Nebraska Supreme Court has held that the constitutional power of the Nebraska Board of Pardons may not be usurped by the Legislature or by the courts.
In State v. Philipps,
Neb. Const., art.
II , §1 , prohibits one department of government from encroaching on the duties and prerogatives of the other or from improperly delegating its own duties and prerogatives, except as the Constitution itself otherwise directs or permits.
. . . .
[A] sentencing court which chooses to substitute a milder punishment for the sentence it had originally imposed does the very thing which defines an act of commutation.
Philipps,
In State v. Jones,
In State v. Bainbridge,
On March 18, 1996, this office issued its opinion to the Board of Pardons finding that only the Board may restore an offender's civil rights which are forfeited due to a felony conviction and that Neb. Reb. Stat. §§
On April 9, 1996, this office issued its opinion to the Nebraska Board of Parole, finding Neb. Rev. Stat. §
The Board [of Parole] may discharge a parolee from parole at any time if such discharge is compatible with the protection of the public and is in the best interest of the parolee.
Neb. Rev. Stat. §
The Board of Parole shall:
. . . .
(c) determine the time of discharge from parole[.]
Neb. Rev. Stat. §
In the opinion, we concluded that §§
Just as the power of pardon is vested absolutely in the President under the United States Constitution, the power is vested absolutely in the Board of Pardons under the Nebraska Constitution. As such, it cannot be modified by the Legislative branch. The Laura,
Because the power of clemency is vested in the Nebraska Board of Pardons under the Nebraska Constitution, the Legislature may not mandate that the Board of Pardons exercise that power.
Sincerely,
DON STENBERG Attorney GeneralLaurie Smith Camp Deputy Attorney General
APPROVED BY:
__________________________ Attorney General
Rachel E. Bauch Administrative Assistant Nebraska Board of Pardons P. O. Box 94754 Lincoln, N.E. 68509-4754