73 Vt. 414 | Vt. | 1901
Russell S. Taft,
John W. Rowell,
James M. Tyler,
Loveland Munson,
Henry R. Start,
John H. Watson,
Wendell P. Stafford,
Judges of the Supreme Court.
In accordance with the provisions of section 1006 of the Vermont Statutes, the Governor of the State of Vermont, respectfully requires an opinion in writing of your Honors upon the following questions of law connected with the discharge of his duties, as Governor.
Sections 5306 toi 5309 of' the Vermont Statutes read as follows:
“Sec. 5306. The governor may discharge a convict in the state prison or house of correction, sentenced by the authority of the state, on such conditions as he judges proper. The discharge shall state the sentence upon which such convict was committed, the conditions of his discharge, and that if he fails to keep the same, he shall be deemed to have escaped from the institution from which he was discharged and be liable to be returned thereto and imprisoned for the whole term for which he was sentenced.
Sec. 5307. The governor shall cause all such discharges to be recorded at length in a book kept by him for that purpose, and a copy of the mittimus on which the convict was committed to be lodged in the files of the executive department.
Sec. 5308. If a convict so discharged fails to keep the conditions of his discharge, he shall be deemed to have escaped from the institution from which he was discharged, and if he is retaken and returned to such institution the term for which
Sec. 5309. The governor, granting such discharge, or any successor, if satisfied that such convict has failed to keep the conditions of his discharge, • shall issue under his official signature and seal of the state a copy of the mittimus on which the original commitment was made, which copy shall have all the force of the original mittimus, to arrest, return, recommit and retain the convict in the institution from which he was discharged.”
The foregoing sections were amended by No. 126 of the Acts of 1898, which took effect November 16, 1898 and among other things provided as follows:
“Sec. 3. All applications for pardon shall be referred to said board, and their recommendation shall be submitted to the governor for his consideration before he decides upon such application.
Sec. 4. Said board shall hear and determine all applications for the release on parole of convicts in the state prison or house of correction, and shall have authority to make such rules and regulations regarding the same as they shall deem best; and shall hold meetings at such times and’ places as they shall think advisable.
Sec. 8. All the duties and powers conferred upon the governor by sections 5306, 5307, 5308 and 5309 of the Vermont statutes are hereby conferred upon and given to said board of prison commissioners and the governor is relieved therefrom as to all convicts sentenced after the passage of this act.
Sec. 10. Sections 5306, S307, 5308 and 5309 of the Vermont statutes are continued in force as to all convicts sentenced
The foregoing act was amended by No. 104 of the laws of 1900 which took effect November 27, 1900 and among other things provided as follows:
“Section 2. Section 3 of said Act No. 126 is hereby amended to read as follows:
All applications for pardon or conditional discharge may be referred in his discretion by the governor to> said board for investigation, and its reports thereon shall be of an advisory nature.
' Section 4. Section 8 and section 10 of said Act No. 126 are hereby repealed.”
1. Under the provision of the law as it now stands, has the governor authority to discharge conditionally from the state prison and house of correction convicts sentenced thereto before November 16, 1898?
2. Has the governor authority to discharge conditionally from the state prison and house of correction convicts sentenced after November 16, 1898 and before November 27, 1900?
3. Has the governor authority to discharge conditionally from the state prison and house of correction convicts sentenced after November 27, 1900?
4. Has the board of prison commissioners authority to discharge conditionally from the state prison and house of correction any convicts excepting after the expiration of the minimum term of such convicts as have been sentenced to a maximum and minimum term ?
5. Has the governor authority to issue a warrant to return to the state prison or house of correction a convict conditionally discharged before November 16, 1898, who has violated the conditions of such discharge ?
7. Has the governor authority to issue a warrant to return to the state prison or house of correction a convict sentenced and discharged after November 16, 1898, and before November 27, 1900, who has violated the conditions of such discharge?
8. Has the governor authority to issue a warrant to return to the state prison or house of. correction a convict sentenced and conditionally discharged after November 27, 1900, who has violated the conditions of such 'discharge ?
9. Is a convict conditionally discharged by the governor between November 16, 1898, and November 27, 1900, lawfully at liberty?
WILLIAM W. STICKNEY.
To His Excellency,
William W. Stickney,
Governor of the State of Vermont:
Sir :—
In reply to yo'ur foregoing requirement for the opinion of the Judges of the Supreme Court upon the construction of the statute relating to the conditional discharge and the paroling of convicts in the state prison and house of correction, we have the-honor to submit the following opinion:
The power to grant pardons is given to the executive by the constitution in unrestricted terms, except in cases of treason, murder, and impeachment; and that such general power includes the authority to grant all kinds of pardon known to' the common law, is well settled. The grant may be for a full, partial, absolute, or conditional pardon, provided the condition
Section 5306 of the Vermont statutes provides that the governor may discharge a convict in the state prison or house ©f correction, sentenced by the authority of the state, on such conditions as he judges proper. Such a discharge is a conditional pardon, the full authority to- grant which is vested in the executive by the constitution. A conditional discharge under the provisions of this statute is not unlike a conditional pardon, except in name which is of but little consequence. An instrument was issued under the seal of the United States by President Munroe, in which he directed for causes therein stated, that the prisoner “be forthwith released from prison,” and it was held to be a pardon: Jones v. Harris, 1 Strob. 160. In a similar instrument issued by President Jackson, he used the words “do hereby remit unto him, * * * the remainder of said sentence, and order him to be liberated from further imprisonment on payment of the costs,” and- this was held to be a pardon: Hoffman v. Castor, 2 Whar. 453. In that case the court said, “it does not appear that any particular language or form of words is necessary in such an instrument. In some of the ancient pardons, a variety of language is to be found; such as acquit, pardon, release, and exonerate. In others, only the word pardon;” and further, that in Pennsylvania the practice is to recite the offense, conviction, and sentence, and then remit the sentence; also that at common law, referring to 3 Co. Inst. 235, remitting the indictment pardoned the offense, and after sentence, remitting the sentence had the same effect.
No. 126, laws of 1898, was approved November 16, and took effect from its passage. By section i, a board of prison commissioners is established. By section 8, all the duties and powers conferred upon the governor by sections 5306 to 5309 inclusive,of the Vermont statutes,are conferred upon and given to the prison commissioners, and the governor is relieved therefrom as to all convicts sentenced after the passage of that act. The effect of this act would be to transfer the power of conditional pardon from the governor to the board of prison commissioners, which, as before seen, cannot be done by legislative action; and section 8 of No. 126 is unconstitutional and void.
The other provisions of section 5306, and the provisions of sections 5307, 5308, and 5309 relate to the procedure and remedy in case a convict fails to perform the conditions of his discharge, and they are dependent upon the power.to make the grant; for without the exercise of that power, there is nothing to which such provisions can apply. Herein it is impossible to give effect to the manifest intent of the legislature with the power to grant the discharge taken away; and as the provisions touching the latter are unconstitutional, the whole must fall together: Cooley’s Con. Tim. 209-213; Allen v. Louisiana, 103 U. S. 80.
By section 10 of No. 126, sections 5306 to 5309 inclusive, are continued in force as to all convicts sentenced before No. 126 was passed, and the provisions of that act do not apply thereto. Except as to the convicts named, those sections of the Vermont statutes were thereby repealed by implication,
Therefore, questions one, two, three, and nine submitted, are severally answered in the affirmative.
The questions submitted relative to the authority of the governor to issue warrants for the return of the prisoners who have violated the conditions of their discharge, involve his authority in that regard generally, as well as under section 5309, V. S., which has been repealed except as to convicts sentenced • before November 16, 1898.
The authorities seem to agree that when a convict fails to perform the conditions of his pardon, he is liable to be remitted to his original sentence. This is the only logical result, for by non-performance of the conditions the pardon becomes void, and the prisoner is in the same state in which he was at the time his pardon was granted. The statute provides that if the convict fails to perform the conditions he shall be deemed to have escaped, and shall be liable to be returned to the prison from which he was discharged and imprisoned for the whole term for which he was sentenced; and if returned, the term of his sentence shall be deemed as commenced at the time of his return and continue thereafter the whole term of the sentence. This is not remitting the prisoner to' his original sentence. It is the creating of a new offense with a penalty therefor. At common law, the non-performance of the conditions of a pardon is not an offense, but by the provisions of this statute, it is deemed an escape; and the extent of the penalty to be imposed is measured only by the time a convict serves on his original sentence before he receives his conditional discharge. Before
At common law if sentence had been imposed, and the convict is at large, he may be brought to the bar and remanded to suffer his original sentence: Bacon’s Abr. tit. Pardon, E; 1 Chitty Cr. Law, 773; State v. Wolfer, supra. And from Ackle’s case, Miller’s case, Madam’s case, and the.Irish Law times before cited, it would seem that such statutory offense and penalty therefor, do not supercede the common law procedure.
Therefore, except as above otherwise indicated, questions five, six, seven, and eight are answered in the negative.
By section i óf No. 127,-Laws of 1898, it is provided that when a convict is sentenced to the state prison or house of correction otherwise than for life, or as an habitual criminal, the sentence shall not be for a fixed term of imprisonment, but a maximum and minimum term shall be established; and by section 7, the act applies only to offenses committed subsequent to the time when it took effect, — November 16, 1898, — while as to all previous offenses the law continues the same as before the act was passed. Although such a sentence is in terms indeterminate, it is in law for the maximum term; for until the expiration thereof a convict is in the custody of the law under his sentence, and in confinement unless he can be and is paroled by the board of prison commissioners under the provisions of this act, after the expiration of the minimum term of his sentence: Oliver v. Oliver, 169 Mass. 592; Murphy v. Commonwealth, 172 Mass. 264, 70 Am. St. Rep. 266. Whether the prison commissioners can grant such a parole depends upon whether the law giving them that power is an encroachment upon the prerogatives of the executive. Is the granting of a parole within the pardoning power ? If it is, the power is exclusively with the executive, and the law is such an encroachment. Under the constitution of Indiana the pardoning power is vested in the executive subject to such rules and regulations as may be made by law. No legislation was had thereon, by reason whereof the power was with the executive to its full extent. The governor granted a parole, and later by his command the prisoner was re-imprisoned because he had failed to perform the conditions of his parole. One question before the court was whether the release granted was a conditional pardon
Under the provisions of the law in question, a paroled prisoner has his liberty without restrictions other than to keep the conditions of his parole until the expiration of the maximum term of his sentence when he is absolutely free. It is said in Fuller v. State, supra, that a “parole does not in any wise displace or abridge the sentence. It merely stops its execution for a time only, it may be, or indefinitely, it may prove. It suspends, not destroys.”
But the authorities are not in harmony upon this question. In State v. Peters, 43 Ohio St. 629, a law providing that the prison board of managers may parole convicts was held not an encroachment upon the pardoning power and valid. The court said it was not a commutation, adding that a “commutation is the change of a punishment to which a person has been condemned into a less severe one;” and further said, “It is not a conditional pardon, but the substitution of a lower for a higher grade of punishment.” Thus in avoiding a conditional pardon, the court defined a parole to be just what it had in the sentence before correctly given as the definition of a commutation, which, according to all authorities, is within the pardoning power: 4 Black. Com. 401; Lee v. Murphy, supra; Ex Parte Wells, supra.
In Miller v. State, 149 Ind. 607, in upholding a similar law, the court said, “Nor is it the exercise of the pardoning power. Pardon is remission of guilt; amnesty, oblivion or forgetfulness. The act of the board only shortens the term prescribed by the sentence and leaves the conviction of guilt unaffected.” That such is the effect of a full pardon, is not controverted; and that a parole is not a full pardon is not debatable. But in that case, neither commutation, nor a partial,
In George v. Lillard, 51 S. W. (Ky.) 793, a law which gives the commissioners of the sinking fund, consisting of the governor, auditor, treasurer, secretary of state and attorney general ex officio, the power to grant paroles was under consideration, and by a divided court, the law was held not to interfere with the pardoning power vested in the governor. But a strong dissenting opinion was filed in the case, by Judge Guffy (page 1011), holding a parole under the law, to be a conditional or partial pardon, and the law in conflict with the constitutional grant. In carefully examining the two opinions, the reasoning of the latter more fully commends itself to our judgment.
The courts in some of the states, notably in Massachusetts, seem to assume that the law relates to procedure or prison discipline or penal administration: Murphy v. Commonwealth, supra; but it matters not under what guise it is attempted to be sustained, the fact remains that if such a parole is within the executive prerogative, it is exclusively so. In view of the disharmony of the' authorities, an examination of some of the many conditional pardons which have been granted and judicially held valid, may be helpful in arriving at proper conclusions. Commuting a sentence of death on condition that the prisoner will submit to imprisonment for life, is not uncommon ; and the granting of a pardon on condition that the person shall leave the state and never return, has not been infrequent. In Lee v. Murphy, supra, the pardon was from a sentence for three years in the penitentiary, on condition that the prisoner would serve a term of imprisonment in the jail for one year; in Reg. v. Foxworthy, 7 Mod. 153, the condition was that the person should serve three years on one of the Queen’s ships; in United States v. Klein, 13 Wall. 128, the
The effect of a full pardon, says Blackstone (Book 4, 402), “is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offense for which he obtains his pardon; and not so much to' restore his former, as to give him new credit and capacity.” Nor can the effect be so restricted, even by express terms, as to leave the person with the legal disabilities still resting upon him. Such a restriction would be repugnant to the grant and void;
Montpelier, May 29, A. D. 1901.
