The pardons granted by former Mississippi governor, Haley Barbour, just before leaving office have become national news. They are being challenged by the current State Attorney General, Jim Hood. The Attorney General is challenging the gubernatorial pardons on the grounds that most of the 198 pardons do not comply with the provision of the Mississippi Constitution that states that no pardon shall be granted to a convicted felon who applies for a pardon unless the applicant first publishes the pardon application and reasons for seeking the pardon.
Executive pardons are not a new phenomenon. Both nationally and regionally, the ability of the executive to pardon has been a part of the governments' system of checks and balances from the beginning. The founders granted the executive the ability to pardon as a check on the power of the judiciary. They understood that this executive power was necessary because no judicial system is perfect. The pardon power provided a vehicle for the government to extend clemency and correct wrongful convictions and sentences. This was not scandalous in the early part of the nation's history. It was seen as necessary to have a kind of last resort protection for citizens. So, just as the president is given the power to pardon in the nation's constitution, most of the states have a similar provision granting the same power to their executive.
The pardon power was granted to the executives and pardons were and have historically been granted by executives. It is customary, especially in the south, for governors to grant pardons to prisoners, who for good behavior or some other equitable reason are seen as deserving a second chance after serving part of their sentence. One recent example is former governor of Arkansas, Mike Huckabee, granted over a thousand pardons while he was in office. Gubernatorial pardons are a time honored institution in this country and they are specifically meant to check the power of the judiciary.
As in the federal system, Mississippi uses a system of checks and balances. The system of checks and balances ensures that no one branch of the government will have too much power. The judiciary exercises the power of judicial review as an important and powerful check on the power of the legislature and of the executive branches. The writ of habeas corpus is a good example. Habeas allows the judiciary force the executive to bring the person to court and acts as a check on the executives power to imprison. It would not make sense to allow the executive to review a judges decision to grant a writ of habeas corpus. The executive can challenge the granting of a writ of habeas corpus, but the judiciary has the final say not the executive. The suspensions clause of the federal constitution provides that habeas cannot be suspended executive.
That makes perfect sense because if the executive could review the judiciaries habeas decisions, then the writ of habeas corpus would not be a check on the executives power at all. The delicate balance of power is maintained by allowing each branch of government to act as sovereign in their separate functions of governance. The power of the judiciary is checked by the executive through the exercise of the power to pardon the people that the judiciary imprisons. Just as it does not make sense for the executive to review habeas decisions, it makes no sense for the judiciary to review executive pardons. To allow judicial review of pardons would make the executives pardon power ineffective and disrupt the balance of power. In other words, executive pardons are properly viewed as non-justiciable. This position is supported by case law.
In the case of Ex Parte Fleming the Mississippi Supreme Court held that the governor could suspend or delay the execution of a sentence because that power was part of the power to pardon. The Mississippi Supreme Court said in Fleming that "He [the governor] has the unlimited and unrestricted power to pardon." Ex Parte Fleming. 60 Miss. 910 (MS 1883). In Montgomery v. Cleveland the Mississippi Supreme Court said, "Of course, he [the governor] is the sole judge of the sufficiency of the facts and of the propriety of granting the pardon, and no other department of the government has any control over his acts or discretion in such matters. Nevertheless he acts for the public. He dispenses the public mercy and grace; the efficacy of the pardon flows from the sovereign." Montgomery v. Cleveland, 98 So. 111, 113 (MS 1923).
Both the United States and Mississippi conceived of the executive's power to pardon as being solely within the discretion of the executive and not reviewable by the judiciary. Jim Hood is fighting the traditional view of the system of checks and balances and power of the executive to grant pardons. He is able to do this by feeding the media a story about killers on the loose and national man-hunts. The media is all too ready to sensationalize the story. The media appears paralyzed and unable to ask any questions critical of the Attorney General's attack on this country's system of government or even question him on his misleading statements. Instead the media acts as a bullhorn for the Attorney General, who completely controls the story line. The story is now about the sentiments of the public about murder rather than the protections and benefits that the pardon power provides.
The result is that the public only receives information that evokes angry sentiments towards the criminals and the crimes that they committed. The fundamental issues of law are misunderstood or ignored. To be fair, I have attached a spreadsheet containing a list of all of the pardons and the actual signed documents, so that you will have the facts to rely on and not the sensationalized version of things being presented. No matter how one feels about the individual pardons, it is clear that under the current law and case precedent in Mississippi, pardons are within the sole discretion of the governor. If we are a nation ruled by laws then the Mississippi Supreme Court should not review the governor's pardons because the issue is not justiciable.
The Mississippi Supreme Court has an opportunity to establish a bright line rule that executive pardons cannot be reviewed by the courts, but that is not what they will likely do. Either because of human nature, political ideology, both, either or neither, I think that the court will at least partially accept Jim Hood's argument that the failure of some of the pardons are invalid for failure to meet the technical requirement that the applicant publish his application. The court will have to provide some rational for exercising subject matter jurisdiction over executive pardons and I think that they will provide us with some clever language to conclude that they are not reviewing the decision of the governor. The court will likely conclude that the pardons are null because they failed to comply with the publication requirement. Thus the court can conclude that they are not intruding on the governor's sole authority to decide when to grant a pardon, but merely saying the decisions are ineffective because they clearly did not comply with a simple reading of the constitution. The prisoner can apply for pardon again and the executive can again make a decision without the judiciary having intruded one step into the executives sphere of sovereignty.
This attorney hopes the court can keep the faith in our system of government even in the face of pressure from the public and media, not for the sake of the convicts, but to protect the rule of law. No matter what happens in the case of these individual pardons, the executive still needs the authority to pardon people without any interference by the courts whatsoever. This is a fundamental protection provided by the checks and balances on power that have been in place and protecting the citizenry for centuries. Attorney general Hood knows as well as everyone else that this case has nothing to do with the publication of applications for pardons. It has everything to do with whether or not the governor's power to pardon will be respected. It always has in the past and this case could set a bad precedent by interfering with executive pardons. I hope the court does not do that and decides to correctly rule that no court has any business reviewing executive pardons.
 MS Const. Art. 5, § 124