Pardon hearings in Minnesota are perhaps the greatest show in law. Petitioners, usually without lawyers, argue their cases directly to a panel consisting of the governor, the attorney general and the chief justice of the state Supreme Court.
Often, witnesses are called: friends and family who describe a profound change in the life of the offender, forgiving or angry victims, preachers, sheriffs and various constabulary. The stories can be heartbreaking, infuriating and inspiring.
Then the governor, attorney general and chief justice discuss the case in open court as the petitioner watches, and decide the outcome on the fly. It takes a unanimous vote of the three to grant a pardon, and the drama in watching the panel come to a decision — especially a split decision — is tense.
The juxtaposition of the powerful and the powerless, pleading for mercy, is striking and unfiltered.
It's a fascinating spectacle. It is also a process that is both unproductive and unconstitutional.
The constitutional problem isn't the hearing itself; rather, it is the state statute's requirement that all three members of the pardon board have the ability to veto any petition. Requiring a unanimous vote makes each of the members equal.
That's not what the Minnesota Constitution directs, though. Article V, Section 7 of the Constitution provides that "The governor, the attorney general and the chief justice of the supreme court constitute a board of pardons. Its powers and duties shall be defined and regulated by law. The governor in conjunction with the board of pardons has power to grant reprieves and pardons after conviction for an offense against the state except in cases of impeachment."
The last sentence of Section 7 makes it clear: "The governor in conjunction with the board of pardons" has the power to grant pardons. It rests the power of the pardon in the governor, and then adds a requirement of consultation with the other two officials.
The statute, though, doesn't allow the governor to grant pardons unless the other two agree. That veto power seems to go far beyond what "in conjunction with" would require. There is a term used in both the state and federal constitutions that does mandate a veto by a secondary party: "advice and consent." The drafters of the state Constitution chose not to require "consent" in the case of pardons, though. And in other contexts, Minnesota law means "in consultation with" when it uses the phrase "in conjunction with." For example, Minnesota law requires that the executive director of the state's sex offender program must create a discharge plan for a civilly committed sex offender "in conjunction with the offender," but we would never imagine that this gives the sex offender a veto over the discharge plan.
Does this matter? Of course it does. I've been to several pardon hearings (why would I stay away from something so fascinating?), and it is common for a single vote by one of the others to prevent a majority — including the governor — from granting a petition. Each board member brings a different filter to the proceedings, and that makes it a difficult gauntlet if each has the independent ability to quash a petitioner's hopes.
The unconstitutionality of the single-vote veto is only one problem with the current system. No other state has precisely this bizarre scheme (only Nebraska and Florida come close), and for good reason: It sucks up the time of three top state officials, it creates a bottleneck in the clemency process, and it is unnecessarily stressful for victims of crime who may want to testify.
The bottleneck in the system is caused by the limited time that the governor, attorney general and chief justice have to spare. Hearings are conducted only twice a year, with 15-30 cases in each session. That sets a firm cap on the number of cases that can get serious consideration, and the bottleneck is accommodated through an opaque process where staffers deny petitions without advancing them to the hearing level.
The unnecessary stress caused to those involved, including victims of crime who may want to oppose or support the petition, is inherent in a process that forces all testimony to be given publicly in front of three of the most prominent people in the state. At the hearings, this is palpable; I have often witnessed those waiting their turn wring their hands or cry silently.
There is a better way.
One example is presented by our neighbors in South Dakota. There, hearings are conducted by a nine-person board which then makes recommendations to the governor. The members of that board are selected by the governor, chief justice and attorney general, each of whom select three. A similar advisory board could be created here, while keeping the ultimate decisionmaking with the governor in conjunction with the other members of the pardon board.
The advisory board would conduct public hearings and make recommendations to the current trio of officials, who could then review the cases (without the single-shot veto) and grant or deny the petitions. Victims and other witnesses would retain their important ability to be heard, without the drama associated with appearing in a show trial. The video of each hearing could be made available to the governor, attorney general and chief justice as they consider each petition.
It is expected that such a proposal will be taken up in the coming legislative session.
Clemency isn't meant to be a sideshow. It's an ancient and good principle of government, rooted in the virtue of mercy. The state Constitution is right to put the decision in the hands of those in whom we place our trust through elections. The tool simply must be shaped so that it can and will be employed with precision and grace.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas.
