December 6, 2004
LEGISLATURE'S POWER TO COMMUTE DEATH SENTENCES AND EFFECT ON PENDING CASES
By: Christopher Reinhart, Senior Attorney
You asked about the legislature's power to commute the death sentences of inmates on death row and its power to affect pending capital felony cases.
The Office of Legislative Research is not authorized to issue legal opinions and this report should not be taken as one.
In Connecticut, unlike most states, the legislature has the pardons power. The General Assembly exercised this power until creating the Board of Pardons in 1883. It appears that the legislature could exercise the pardons power to commute death sentences. The power to commute a sentence is generally considered to be part of the pardons power.
It appears that the legislature could also abolish the death penalty in pending cases if the legislation made it clear that the change was intended to apply retroactively. Pending cases include a range of defendants, from those charged with capital felonies and awaiting trial to those convicted and awaiting sentencing.
Ordinarily in criminal cases, the law in effect at the time a person commits an offense applies to his trial and sentencing. The ex post facto clause of the U.S. Constitution prevents the state from adopting a law that is retrospective and disadvantages the offender affected by it by increasing the punishment. The U.S. Supreme Court, in Dobbert v. Florida, stated that it is “axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” American Jurisprudence also states that it is well settled that the ex post facto clause does not bar legislation that ameliorates or mitigates the penalty. Since the U.S. Supreme Court has distinguished the death penalty from other punishments in a number of ways, it appears that removing the death penalty as a possible sentence in pending capital felony cases would be considered reducing the penalty and would not violate the ex post facto clause.
A number of Connecticut statutes address the retroactivity of legislation and how a change in penalties can affect pending cases. Under these statutes and court rulings, legislation can be retroactive if there is a clear and unequivocal expression of legislative intent for retroactive application.
COMMUTING DEATH SENTENCES OF DEATH ROW INMATES
In Connecticut, unlike most states, the legislature has the pardons power (McLaughlin v. Bronson, 206 Conn. 267 (1988), citing Palka v. Walker, 124 Conn. 121 (1938)). The General Assembly exercised this power until creating the Board of Pardons in 1883. It appears that the legislature could exercise the pardons power to commute death sentences. The power to commute a sentence is generally considered to be part of the pardons power (Attorney General's Opinion 96-10, citing 59 Am.Jur.2d, Pardon and Parole § 23).
Connecticut's colonial charter gave the General Court authority to grant clemency. Unlike most states, Connecticut did not confer the pardoning power in its constitution. The constitution gives the governor the power to grant reprieves but it provides no express authority to grant pardons or commutations of sentences. The Board of Pardons and Paroles is now statutorily authorized to grant pardons for any crime and commutations from the death penalty.
The Connecticut Supreme Court in Palka v. Walker, analyzed the pardons power and the governor's power to grant reprieves. The court stated that for many years before adopting the constitution, a statute stated that the General Court had the power to grant “pardons, suspensions, and goal delivery upon reprieve, in capital and criminal cases…” The court found that after the constitution was adopted, “the statutes were revised and many laws repealed or omitted, among them the one we have quoted.” It stated that, “No doubt the reason for this was that the powers included in the statute were considered to be within the general provision which vested the legislative power in the General Assembly.”
The court in Palka also looked at historical evidence and found that the General Assembly granted clemency to prisoners in every session between 1837, when special acts were first printed in unabridged form, and 1883, when the legislature created the Board of Pardons. This included “several instances” where death sentences were commuted to life imprisonment and two instances of prisoners “apparently awaiting trial” who were granted pardons.
More recently, the Connecticut Supreme Court in McLaughlin v. Bronson cited Palka and stated that, “In Connecticut, the pardoning power is vested in the legislature” (206 Conn. 267 (1988)). Attorney General's Opinions also cite these cases for this proposition and state that the legislature delegated the power to the Board of Pardons (Opinions 92-20 and 96-10).
The Connecticut Constitution grants the governor “power to grant reprieves after conviction, in all cases except those of impeachment, until the end of the next session of the general assembly, and no longer” (Article IV, § 13).
Regarding the governor's power to grant reprieves, the court in Palka stated that a reprieve is a stay of the execution of a sentence and is often used to give a prisoner an opportunity to seek a pardon, commutation, or further judicial review. The court stated that the makers of the constitution gave the governor the power to grant reprieves until the end of the General Assembly's session so that the legislature could have an opportunity to consider an inmate's case and decide whether to grant clemency. The court stated that a reprieve granted during a legislative session can last until the end of the next session and the governor can grant multiple reprieves to the same person.
In a 1992 opinion to Governor Weicker, the attorney general considered whether the governor had any residual power to grant pardons or commutations in death penalty cases (Attorney General's Opinion 1992-020). The attorney general compared the authority of the Board of Pardons and the governor and considered the Supreme Court's discussion in Palka. He stated that only the Board of Pardons has the power to grant pardons and commutations and the governor has no residual powers. He also cited a Connecticut Supreme Court case that, citing to Palka, states, “the pardoning power is vested in the legislature which has delegated its exercise to the Board of Pardons” (McLaughlin v. Bronson, 206 Conn. 267 (1988)).
At least one commentator argues that because the Connecticut Constitution does not give the power to any branch of government, the governor may have some clemency power. He argues that clemency is traditionally an executive power. Although there is no record of any pardons by the governor before creation of the Board of Pardons, he argues that this only proves that the power was not exercised and not that the governor does not have it as an inherent power of the executive office (William R. Ginsberg, Punishment of Capital Offenders, 27 Connecticut Bar Journal 273 (1953)).
Other sources suggest that under the American form of government, the clemency power is a power of the people and it does not inherently belong to any branch of government (59 Am. Jur. 2d, Pardons § 12, Jensen, The Pardoning Power in the American States (1922)).
HISTORY OF THE PARDONS POWER IN CONNECTICUT
At British common law, the pardoning power was a part of the royal prerogative exercised by the Crown. Its essence was mercy, its theoretical basis that since all power emanated from the Crown, it was the Crown's peace breached by the commission of a crime, thus the sovereign alone held the power to bestow mercy via a pardon.
While broad in scope and full in effect, it was not an absolute concept. The sovereign could not make “dispunishable” a crime inherently evil in itself as this would be against the common good. Nor could he pardon a common nuisance as this would remove the compulsion for the offender to pay redress to the aggrieved party.
There were also statutory limits. The power to pardon in certain impeachment situations was limited. And there were pardons grantable as a matter of common right outside the scope of the Crown's power, for instance, in the case of informers immunized by statute or decree.
Finally, there were practical and political encroachments on any absolute royal claims. The clergy carved out a zone of exceptions in the law. And as Parliament grew in power relative to the Crown, that body began the occasional dispensation of its own pardons.
Despite the constraints, the power and effect of the pardon was formidable. It was said to “make the offender a new man, to acquit him of all corporal penalties and forfeitures” (Sharswood's Blackstone). A full pardon would “absolve the party from all the consequences of his crime, and of his conviction therefore, direct and collateral . . . .” (Bishop's Criminal Law)
From Colonial To State Government
Transplanted to the colonies, the common law pardoning power was generally the same. It was usually delegated to one of the Crown's representatives, often, but not exclusively, the governor (Ex parte Wells, 18 How (U.S.) 307).
Connecticut had a somewhat different arrangement. The Colonial Charter of 1662 provided that the General Assembly, under its common seal, could pardon or release offenders provided that the bovernor and six of his assistants were present in the Assembly.
The shift from colonial to state government meant a seminal shift in the theoretical basis of pardons. Unlike in Britain, where all power derived from the Sovereign, in the United States all power was considered inherent in the people. (Thus, crime is an offensive against the people, prosecuted by the people. Only the people can bestow their mercy by pardoning offenders, and they can confer that power on whomever they choose.)
At the federal level, the framers conferred the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” to the President. (Article II, § 2). It has been held that Congress cannot infringe upon this constitutional prerogative (Ex parte Garland, 4 Wall 3113).
In the states, there was a general suspicion of executive power; yet most states nonetheless granted the pardoning power to the governor, though often with a sharing arrangement with the legislature through executive councils. As the councils faded in importance, the pardoning power of the governors grew.
Of the original states, only Connecticut and Rhode Island made no immediate changes in the administration of clemency, retaining their colonial charter for years. (Of 35 non-original states, 26 vested the power in the governor.)
In the Connecticut Constitution of 1818, the framers gave the governor the limited power to grant reprieves. Thus, the assembly hung onto the general pardoning power until passing the 1883 act establishing the state Board of Pardons. (Prior to this date, there is no record of the governor exercising any pardoning power.)
The governor had tremendous influence over the early Boards, as he was a member along with a Supreme Court justice and four others chosen by him with the advice of the Senate. Since a unanimous vote was required, all members had effective veto power.
Eventually, as in many states, the governor's influence in the administration of pardons waned as the demands of the executive office grew. Eventually, the General Assembly shifted to a four-of-five vote format, and soon the governor was relieved of his duties on the board. Legislation in 2004 combined the Board of Pardons with the Board of Parole and created the new Board of Pardons and Paroles (PA 04-234). The board is part of the Department of Correction for administrative purposes only and the act specifies the board's independent decision-making authority to grant releases and commute punishments including the death penalty.
POWER TO AFFECT PENDING CASES
It appears that the legislature could abolish the death penalty in pending cases if the legislation made it clear that the change was intended to apply retroactively. Pending cases includes a range of defendants, from those charged with capital felonies and awaiting trial to those convicted and awaiting sentencing.
Ex Post Facto Clause
Ordinarily in criminal cases, the law in effect at the time a person commits an offense applies to his trial and sentencing. The ex post facto clause of the U.S. Constitution prevents the state from adopting a law that is retrospective and disadvantages the offender affected by it by increasing the punishment (Art. I, § 10). The Connecticut Supreme Court stated:
Critical to relief…is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the clause if it is both retrospective and more onerous than the law in effect on the date of the offense (Johnson v. Commissioner of Correction, 258 Conn. 804, 817, citing Weaver v. Graham, 450 U.S. 24 (1981) and Lynce v. Mathis, 519 U.S. 433 (1997)).
According to American Jurisprudence, “it is settled that the ex post facto prohibition does not bar legislation effecting a change in the penalty for a crime where the change operates to ameliorate or mitigate, and not to aggravate, the penalty…Statutes permitting lesser punishments or reducing the maximum sentence do not, of course, present ex post facto problems.” (16B Am.Jur. 2d, Constitutional Law § 659).
The U.S. Supreme Court, in Dobbert v. Florida, stated that it is “axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” This case involved a defendant who argued that the change in the role of the judge and jury in imposing a death sentence in Florida between the time of his offense and the time of his trial deprived him of a substantial right to have a jury determine the penalty without review by the judge. The court ruled these changes were procedural and ameliorative (a footnote stated that these were each independent grounds for its decision) and not an ex post facto violation (432 U.S. 282 (1977)).
We have not found a Connecticut case that precisely addresses this issue.
Some have commented that life imprisonment is a harsher penalty than death because of harsh prison conditions and because it leaves the prisoner with a lifetime to think about his crimes. For example, Illinois Governor George Ryan mentioned this argument when explaining his decision to commute the death sentences of Illinois prisoners on death row (discussed in Sarat and Hussain, “On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life,” 56 Stanford Law Review 1307, 1339, April 2004). We did not find any cases finding that life imprisonment without parole is a harsher penalty than the death penalty. In one federal circuit case, the court rejected the argument that commuting a death sentence to life imprisonment without parole was imposing a greater punishment that required procedural rights (regarding a commutation after the U.S. Supreme Court invalidated death penalty statutes, Bean v. Nevada, 535 F.2d 542 (9th Cir. 1976)).
The U.S. Supreme Court has distinguished the death penalty from other punishments in a number of ways. For example, a death sentence is cruel and unusual punishment under the U.S. Constitution's Eighth Amendment if it is imposed without an individualized determination that death is appropriate. This has led to the development of different sentencing procedures in death penalty cases. The U.S. Supreme Court has not applied these rules to the punishment of life imprisonment without parole, finding “a qualitative difference between death and all other penalties” (Harmelin v. Michigan, 501 U.S. 957 (1991), 21A Am.Jur.2d Criminal Law § 974). These distinctions point out death sentences as a more serious type of punishment than others.
Thus, it appears that removing the death penalty as a possible sentence in pending capital felony cases would be reducing the maximum penalty and not violate the ex post facto clause.
Connecticut Statutes and Cases
A number of Connecticut statutes address the retroactivity of legislation and how a change in penalties can affect pending cases.
1. CGS § 1-1(t) states that repealing an act does not affect (a) any punishment, penalty, or forfeiture incurred before the repeal takes effect and (b) any suit, prosecution, or proceeding for an offense that is pending at the time of repeal.
2. CGS § 1-1(u) states that repeal of an act does not affect any pending actions.
3. CGS § 54-194 states that repealing a statute that defines or prescribes punishment for a crime does not affect pending prosecutions or liability for prosecution and punishment unless the legislation expressly provides for it.
4. CGS § 55-3 states that statutory provisions that impose new obligations are not construed to have a retrospective effect.
The Connecticut Supreme Court has stated that legislation can be retroactive if there is a clear and unequivocal expression of legislative intent for retroactive application (State v. Parra, 251 Conn. 617 (1999), In re Daniel H., 237 Conn. 364 (1996)). A criminal law is retroactive if it changes the legal consequences of acts completed before its effective date (State v. Nowell, 262 Conn. 686 (2003), citing Weaver v. Graham, 450 U.S. 24 (1981).
Three recent cases show how the courts have addressed the retroactivity of changes to criminal statutes.
1. In State v. Nowell, the defendant sought the benefit of an act that granted judges discretion to depart from the mandatory minimum sentence for certain drug crimes. The defendant committed his offense almost 18 months before the act's effective date. The Connecticut Supreme Court stated that whether to apply an act retroactively depends on the legislature's intent and there is a presumption that acts affecting substantive rights apply only prospectively. It added that the presumption is rebutted when the legislature clearly and unequivocally expresses its intent that the legislation apply retrospectively. The court found that the statutory language and legislative history did not “clearly and unequivocally” show the legislature's intent to apply the act retroactively (State v. Nowell, 262 Conn. 686 (2003)).
2. In an Appellate Court case, State v. Graham, the defendant was convicted of operating a motor vehicle while his license was suspended. The statute in effect at the time of his conviction did not permit consideration of mitigating factors at sentencing but the statute at the time of his re-sentencing did. The defendant argued for an “amelioration doctrine” that would apply changes that lessen penalties retroactively. But the court stated that this would intervene in the legislative process. The court stated that the legislature adopted a general rule that defendants are prosecuted and punished under the statutes in effect at the time of the offense and it did not override that rule with any specific amendment (56 Conn.App. 507 (2000)).
3. In State v. Parra, the defendant filed a motion to vacate judgment and withdraw his nolo contendere plea. After making his plea, the legislature limited the time period in which a person could make a motion to withdraw the plea. If the legislation applied retroactively, the defendant had missed the filing deadline. In a footnote, the court mentions that this type of legislation does not violate the ex post facto clause. The court found the act ambiguous on its fact but the legislative history clear and unequivocal that the legislature intended to apply the act retroactively. In another footnote, the court states that it need not decide whether this is a substantive or procedural statute because even substantive criminal statutes can be retroactive when there is a “clear and unequivocal expression of legislative intent” and it does not violate the ex post facto clause (251 Conn. 617 (1999)).