THE STATE EX REL. MAURER ET AL., APPELLANTS, v. SHEWARD, JUDGE, APPELLEE. WILKINSON, DIR., ET AL., APPELLANTS, v. MAURER ET AL., APPELLEES.
Nos. 92-1350 and 93-1165
SUPREME COURT OF OHIO
December 30, 1994
71 Ohio St.3d 513 | 1994-Ohio-496
Constitutional law—Commutations of death sentences by Governor not subject to application process outlined in R.C. 2967.07—Section 11, Article III, Ohio Constitution, construed. Submitted September 20, 1994. APPEALS from the Court of Appeals for Franklin County, Nos. 91AP-1442, 92AP-674, 92AP-675, 92AP-677 and 92AP-678.
{¶ 1} On January 10, 1991, two business days before the expiration of his term in office, former Ohio Governor Richard F. Celeste commuted the sentences of eight inmates and granted one full pardon. Two additional inmates also were granted clemency, but their appeals below were either withdrawn or properly found to be moot.1
{¶ 3} When the former Governor granted the pardon and commutations, the Ohio Adult Parole Authority (“APA“) had not been asked to conduct investigations or formulate recommendations for seven of the applicants who had been sentenced to death. Instead, their applications for clemency were filed directly with the former Governor. With respect to Ralph DeLeo and John Salim, their applications were submitted to the APA between December 6 and December 17, 1990. By January 9, 1991, the APA had taken no final action on the two applications. On that day, a representative from former Governor Celeste‘s office called the APA to request that it expedite review of the two applications. The APA responded that it could not complete the review process in two business days.
{¶ 4} On January 29, 1991, George Wilson, Director of the Department of Rehabilitation and Correction, and John Shoemaker, Chief of the APA,2 filed a complaint for declaratory judgment in the Franklin County Court of Common Pleas
{¶ 5} On March 6, 1991, the defendants moved to dismiss the complaint for lack of jurisdiction, alleging that the matter was nonjusticiable, because any judicial declaration as to the validity of executive clemency would unconstitutionally infringe upon the Governor‘s clemency power. The trial court overruled the motion on September 26, 1991. Following a bench trial, the trial judge issued a decision and entry granting a declaratory judgment to plaintiffs. The court explained that “full compliance with the requirements of
{¶ 6} The eleven defendants appealed in six separate notices of appeal to the Tenth District Court of Appeals; their appeals were consolidated for decision. The court of appeals reversed the decision of the trial court. After considering the language of
{¶ 7} This cause is now before this court upon the allowance of a motion to certify the record.
Case No. 92-1350
{¶ 8} The second cause submitted for review emerged from the underlying declaratory judgment action discussed above. On December 10, 1991, after the trial court denied the defendants’ motion to dismiss the action, but prior to trial, the defendants sought a writ of prohibition in the Franklin County Court of Appeals. Defendants urged the court of appeals to bar the trial judge from exercising judicial power over the declaratory judgment action, because the action did not present a justiciable question. On January 28, 1992, a referee concluded that the defendants’ arguments lacked merit and recommended that the court of appeals dismiss the prohibition action on the basis of this court‘s decision in State ex rel. Ney v. Governor (1991), 58 Ohio St.3d 602, 567 N.E.2d 986. The court of appeals adopted the referee‘s recommendation and dismissed the petition.
{¶ 9} This cause is now before this court upon an appeal as of right and has been consolidated with case No. 93-1165 for purposes of final determination.
Ken Murray, for appellant Debra Brown in case No. 92-1350.
Barry W. Wilford and Dennis Pusateri, for Ralph DeLeo.
S. Adele Shank, for Rosalie Grant.
D. Shannon Smith and Timothy A. Smith, for Elizabeth Green.
Elizabeth A. McNellie, Joy Maciejewski and Sean M. McAvoy, for appellant Leonard Jenkins in case No. 92-1350.
Shaw, Pittman, Potts & Trowbridge, Thomas C. Hill, Alvin Dunn and Joseph Figini; Matan & Smith and Steven L. Smith, for Willie L. Jester.
Sowash, Carson & Shostak and Herman A. Carson, for Donald Maurer.
Gregory W. Meyers, for Lee Seiber.
Michael Miller, Franklin County Prosecuting Attorney, and Bonnie L. Maxon, Assistant Prosecuting Attorney, for appellee in case No. 92-1350.
Lee Fisher, Attorney General, John J. Gideon and Jack W. Decker, Assistant Attorneys General, for appellants in case No. 93-1165 and urging affirmance for amici curiae, George Voinovich, Reginald Wilkinson and Jill Goldhart in case No. 92-1350.
K. Ronald Bailey, for appellee Debra Brown in case No. 93-1165.
Melanie S. Corcoran, James W. Brown III and Christopher P. Thorman, for appellee Leonard Jenkins in case No. 93-1165.
Steven H. Steinglass, urging dismissal or affirmance for amicus curiae, Law Professors’ Brief Amicus Curiae Committee in case No. 93-1165.
Kevin Francis O‘Neill, Peter Joy, Daniel T. Kobil and Paul Moke; Moots, Cope & Stanton and Benson A. Wolman, urging affirmance for amicus curiae, American Civil Liberties Union of Ohio Foundation in case No. 93-1165.
Squire, Sanders & Dempsey and David J. Young, urging affirmance for amicus curiae, Catholic Conference of Ohio in case No. 93-1165.
Law Enforcement Legal Association, Inc., Paul L. Cox and Walter T. Florence, urging reversal for amicus curiae, Fraternal Order of Police of Ohio, Inc., in case No. 93-1165.
Per Curiam.
{¶ 10} Case No. 93-1165 requires this court to decide three issues: (1) Does
{¶ 11} We will address case No. 92-1350, which raises issues also implicated by case No. 93-1165, in Part IV of this opinion.
I
{¶ 12}
“He [the Governor] shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by law. Upon conviction for treason, he may suspend the execution of the sentence, and report the case to the general assembly, at its next meeting, when the general assembly shall either pardon, commute the sentence, direct its execution, or grant a further reprieve. He shall communicate to the general assembly, at every regular session, each case of reprieve, commutation, or pardon granted, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve, with his reasons therefor.”
{¶ 13}
{¶ 14} Both the
{¶ 15} Although the Ohio Constitution places the clemency power in the hands of the Governor, that power clearly is not absolute. The Governor‘s clemency power is subject to whatever restrictions are contained in
{¶ 16} Though the Governor‘s power to grant clemency is limited, the only limits on the clemency power are those specifically authorized by
“He [the Governor] shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by law.” (Emphasis added.)
{¶ 18} It is apparent from the structure of the first sentence of
{¶ 19} We believe that the authority to prescribe regulations “as to the manner of applying for pardons” provides the General Assembly with the authority to prescribe a regulatory scheme governing the manner and procedure of applying for pardons. Unlike the court of appeals, we do not believe that the General Assembly has the authority to regulate only the applicants for pardons. We interpret the language of the “subject to” clause as providing the General Assembly with the authority to establish a regulatory scheme that includes prerequisites to the
{¶ 20} For the foregoing reasons, we hold that the General Assembly is authorized by
II
{¶ 21} Having determined that
{¶ 22} The language of
{¶ 23} Plaintiffs argue that the authority to regulate the application process for “pardons” also includes the authority to similarly regulate commutations. They reach that conclusion based upon their perception that the word “pardons” may be interpreted broadly to include all types of executive clemency. In other words, the
{¶ 24} We do not believe that commutations are a subset of pardons. The first step in determining the meaning of a constitutional provision is to look at the language of the provision itself. Where the meaning of a provision is clear on its face, we will not look beyond the provision in an attempt to divine what the drafters intended it to mean. Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574.
{¶ 25} The meaning of
{¶ 26} The canons of statutory interpretation, which guide our interpretation of constitutional and statutory text, support the conclusion that the word “pardons” in the “subject to” clause does not include commutations. This court has consistently held that words used more than once in the same provision have the same meaning throughout the provision, unless there is clear evidence to the contrary. State ex rel. Bohan v. Indus. Comm. (1946), 146 Ohio St. 618, 33 O.O. 92, 67 N.E.2d 536, paragraph one of the syllabus, overruled on other grounds, State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O.3d 347, 390 N.E.2d 1190. The three types of clemency are each listed together four different times in
{¶ 27} The argument that commutations are a subset of pardons is also contrary to our previous decisions where we have held that commutations and pardons are two entirely different types of clemency. In In re Victor (1877), 31 Ohio St. 206, 207, this court defined a commutation as “a change of punishment from a higher to a lower degree, in the scale of crimes and penalties fixed by the law * * *.” In State ex rel. Atty. Gen. v. Peters (1885), 43 Ohio St. 629, 650-651, 4 N.E. 81, 87-88, this court defined pardons:
“A pardon discharges the individual designated from all or some specified penal consequences of his crime. It may be full or partial, absolute or conditional.
“A full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction.
“[A] commutation is ‘the change of a punishment to which a person has been condemned into a less severe one.’
”It is not a conditional pardon, but the substitution of a lower for a higher grade of punishment * * *.” (Citation omitted and emphasis added.)
{¶ 28} The Peters case conclusively established that pardons are different from, and do not include, commutations. The interpretation of
{¶ 29} Instead of approaching
{¶ 30} Given our tradition of interpreting statutory and constitutional language, the only plausible interpretation of
III
{¶ 31} Because we have established that
{¶ 32}
“All applications for pardon, commutation of sentence, or reprieve shall be made in writing to the adult parole authority. Upon the filing of such application, or when directed by the governor in any case, a thorough investigation into the propriety of granting a pardon, commutation, or reprieve shall be made by the authority, which shall report in writing to the governor a brief statement of the facts in the case, together with the recommendation of the authority for or against the granting of a pardon, commutation, or reprieve, the grounds therefor and the records or minutes relating to the case.”
{¶ 33} As we determined above,
{¶ 34} The question becomes whether we may sever the unconstitutional references to commutations and reprieves from the otherwise constitutional portions of
“‘(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?‘” Id., quoting State v. Bickford (1913), 28 N.D. 36, 147 N.W. 407, paragraph nineteen of the syllabus.
{¶ 35} The references to commutations and reprieves meet the test for severability provided in Geiger.
{¶ 36} Because only a portion of the statute is constitutional, only the Governor‘s grant or denial of a pardon is “subject to” the application process outlined in
{¶ 37} The validity of the one pardon granted without an application in compliance with the procedure outlined in
{¶ 38} The exercise of the pardoning power involves two distinct elements—the application process and the consideration process. The phrase “manner of applying” for pardons includes the entire application process, which encompasses the filing of the application itself, the investigation, the recommendation, and the full report compiled by the APA. We find that the General Assembly‘s authority to regulate the application process extends to the time just before the Governor reaches a substantive decision concerning a pardon. Once this point is reached, the General Assembly‘s constitutionally granted authority to regulate procedurally the pardoning power of the Governor is at its end.
{¶ 39} By its clear terms,
{¶ 40} The first sentence of
{¶ 41} We hold that
{¶ 42} The requirement of APA involvement by the General Assembly is permissible, because it is within the General Assembly‘s authority to “legislate in aid of the [pardoning] power.” Knapp, 39 Ohio St. at 392-393. The statute is meant to ensure that information about each person for whom a pardon is considered will be available to the Governor, so that an informed decision may be made. This is precisely the type of regulation “as to the manner of applying for pardons” contemplated by
{¶ 43} Because the Governor has ultimate substantive discretion whether to grant or deny a pardon, there is no requirement that the Governor place any weight whatsoever on either the investigative report or the recommendation of the APA. However, the power to disregard is not equivalent to the power to proceed without the procedural requirements first being fulfilled. The abuses sought to be remedied by addition of the “subject to” clause in
{¶ 44} Defendants argue that if
{¶ 45} We recognize that the pardoning power conferred on the Governor by the Ohio Constitution is essential to ensure justice in particular cases. Indeed, as Alexander Hamilton stated in The Federalist No. 74 (Cooke Ed. 1961) 500-501, in support of the broad clemency power conferred on the President by
{¶ 46} However, the power to pardon is subject to abuse. The framers therefore authorized the Ohio General Assembly to enact regulations to limit those abuses, thereby allowing procedural requirements which limit the Governor‘s exercise of the power. In
{¶ 47} Amicus curiae American Civil Liberties Union of Ohio Foundation argues that if this court reverses the decision of the court of appeals, the cause should be remanded to the court of appeals to resolve issues that court did not reach in its previous opinion. However, we have determined, as a matter of law, that former Governor Celeste acted outside the scope of his constitutionally conferred clemency authority in granting the pardon. The other assignments of error raised in the court of appeals cannot alter that finding. The judgment of the court of appeals in case No. 93-1165 is affirmed with respect to the commutations and reversed as to the pardon. The declaratory judgment of the trial court that the pardon is invalid is reinstated.
IV
Case No. 92-1350
{¶ 48} In case No. 92-1350, the defendants in case No. 93-1165 appeal from the court of appeals’ denial of their complaint for a writ of prohibition. Defendants contend that the court of appeals erred in refusing to stop the trial court from exercising jurisdiction in the declaratory judgment action, which is the subject of the appeal in case No. 93-1165. We find that our resolution of the issues in case No. 93-1165 is determinative of the issues raised in this appeal, and that any remaining issues therefore are moot. Accordingly, we affirm the judgment of the court of appeals in case No. 92-1350.
Judgment affirmed in case No. 92-1350.
Judgment affirmed in part and reversed in part in case No. 93-1165.
A.W. SWEENEY, WRIGHT and EVANS, JJ., concur.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in part and dissent in part.
JOHN R. EVANS, J., of the Third Appellate District, sitting for RESNICK, J.
THE STATE EX REL. MAURER ET AL., APPELLANTS, v. SHEWARD, JUDGE, APPELLEE. WILKINSON, DIR., ET AL., APPELLANTS, v. MAURER ET AL., APPELLEES.
Nos. 92-1350 and 93-1165
SUPREME COURT OF OHIO
December 30, 1994
71 Ohio St.3d 513 | 1994-Ohio-496
MOYER, C.J., concurring separately.
{¶ 49} I concur in the judgment and opinion of the majority that apply
{¶ 50} The majority‘s careful and restrained interpretation produces the only conclusion that is faithful to the words of the Constitution and to
{¶ 51} The majority opinion reflects the fundamental role of judicial responsibility and restraint. Every judge faithful to the judicial oath of office must be able to separate the law from his or her personal views when deciding cases. That fundamental aspect of judging is a unique challenge to judicial decision-making. In separating personal opinion from the constitutional issues before us, I am reminded of the observation that “[i]f the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.” Home Bldg. & Loan Assn. v. Blaisdell (1934), 290 U.S. 398, 483, 54 S.Ct. 231, 256, 78 L.Ed. 413, 452 (Sutherland, J., dissenting). There is no comfort in applying the plain language of the
{¶ 52} The distribution of power among the three branches of government rests on a delicate balance. It is a fundamental element of American government. S. Euclid v. Jemison (1986), 28 Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136. We are urged by the successor in the office of governor to exercise our constitutional power to invalidate the commutations and a pardon of his predecessor in office. Restraint should characterize the exercise of judicial power in such a case. If we
{¶ 53} For the foregoing reasons, I concur, albeit regretfully, in the per curiam opinion.
ALICE ROBIE RESNICK, J., concurring in part and dissenting in part.
I
{¶ 54} By a stroke of a pen a Governor is authorized by today‘s opinion to overturn the death penalty verdicts of judges and juries which have been upheld by countless state appellate judges, Supreme Court justices and federal court judges. Today‘s per curiam opinion says it is perfectly acceptable for a Governor in the last days of his or her administration to grant commutations to whomever he or she desires without first awaiting the APA investigation and report. The basis of such a holding is that the Constitution does not specifically authorize regulations “as to the manner of applying for commutations.” As a result, only full and absolute pardons are “subject to” any regulations enacted by the General Assembly.
{¶ 55} The per curiam opinion misconstrues
{¶ 56} The per curiam opinion proclaims that
{¶ 57} The drafters of
{¶ 58} This seems an especially curious result when one considers that both the pardon and the commutation are aspects of the Governor‘s clemency power, which has as its source
{¶ 59} In order to underscore the magnitude of this case, a brief recapitulation of the circumstances of each defendant‘s criminal conviction is in order and appropriate.
A
{¶ 61} A jury found Maurer guilty of aggravated murder with a specification, kidnapping, and gross sexual imposition. The trial court adopted the jury‘s recommendation that the defendant be executed. His conviction and sentence were affirmed on direct appeal to the court of appeals and this court. See State v. Maurer (Feb. 13, 1984), Stark App. No. CA-6166, unreported, 1984 WL 4469, affirmed (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768. On January 10, 1991, former Governor Celeste purportedly commuted Donald Maurer‘s death sentence to life imprisonment without parole eligibility.
B
{¶ 62} Leonard Jenkins was convicted of aggravated murder with specifications, eight counts of robbery, one count of attempted murder and five counts of kidnapping. The convictions stemmed from a robbery that occurred in Cuyahoga County, Ohio, on October 21, 1981. Jenkins and another individual entered a branch office of National City Bank and held bank employees and patrons at gunpoint. During the robbery, Jenkins observed a police officer, Anthony Johnson, approach the front door of the bank and peer inside. Upon seeing the officer, Jenkins stated that he and his partner would have to shoot their way out of
C
{¶ 63} A jury convicted Debra Brown of the murder of fifteen-year-old Tonnie Storey. The evidence showed that on the morning of July 11, 1984, Tonnie left her home in Cincinnati to attend summer school. She was last seen on that day with a man identified as Alton Coleman and a woman matching Brown‘s description. On July 19, 1984, a realtor entered an abandoned building that he was preparing to show to a prospective buyer and found a partially decomposed body. Scrawled above the body on the wall were the words “I hate niggers death.” Police ultimately identified the body as that of Tonnie Storey. The evidence presented during trial included Brown‘s fingerprints on a Michael Jackson button Tonnie had been wearing the day she disappeared. Brown admitted to another individual that she had killed Tonnie “for her clothes” and that she, Brown, “had to do what [she] had to do.” The state further introduced evidence linking Brown to at least five other murders and several other attempted murders or assaults. After finding Brown guilty of Tonnie‘s murder, the jury recommended and the trial judge imposed a sentence of death. Her conviction and sentence were affirmed in a direct appeal to the court of appeals and to this court. See State v. Brown (Apr. 15, 1987), Hamilton App. No. C-850434, unreported, 1987 WL 9743, affirmed (1988), 38 Ohio St.3d 305, 528 N.E.2d 523. On January 10, 1991, former Governor Celeste
D
{¶ 64} On the morning of August 5, 1983, Willie Lee Jester entered an AmeriTrust Company branch office in Cleveland, Ohio, soon after it opened for the day. Jester approached Patrolman Benjamin Grair, the bank‘s security guard, while he was sitting at a desk speaking on the telephone and shot him in the chest. Jester then ran to the bank counter, leaped over it, and took a total of $3,122 from a teller‘s drawer. Patrolman Grair died as a result of the gunshot wound to his torso. The fatal injuries to his heart, right lung and liver were caused by a single, hollow-point bullet—a bullet specifically designed to cause more damage than a smooth-point bullet. Upon finding Jester guilty of aggravated murder with two specifications, the jury recommended and the trial court imposed a sentence of death. The conviction and sentence were affirmed in a direct appeal to the court of appeals and to this court. See State v. Jester (Sept. 26, 1985), Cuyahoga App. No. 49065, unreported, 1985 WL 8631, affirmed (1987), 32 Ohio St.3d 147, 512 N.E.2d 962. On January 10, 1991, former Governor Celeste purportedly commuted the death sentence to life imprisonment without parole eligibility.
E
{¶ 65} A three-judge panel in Hamilton County convicted and sentenced Elizabeth Green to death for aggravated murder and to a consecutive term of ten to twenty-five years for aggravated robbery. The convictions stemmed from the killing and robbery of Thomas Willis, a neighbor of one of Green‘s friends, Belinda Coulter. On January 4, 1988, Coulter sold Willis some food stamps so that she and Green could in turn use the cash to purchase drugs. Later that day, Green, with Coulter, entered Willis‘s apartment wearing socks on her hands so as to avoid leaving any fingerprints. Green then stabbed Willis and took his money. Thomas Willis died as a result of one hundred nine knife wounds to his neck, torso and arms.
F
{¶ 66} A jury convicted Lee “Crazy Horse” Seiber of aggravated murder with three death penalty specifications in connection with the killing of Stanton Norris. On May 21, 1985, Seiber entered a Columbus bar for the second time that evening, carrying a loaded, cocked .38 caliber revolver. An accomplice stood at the closed front door, shotgun in hand, barring anyone from leaving. Seiber had returned to the bar to confront two men, Alvie and Louis Schoenberger, one of whom had criticized Seiber during his earlier visit for making lewd remarks to a woman in the bar. After forcing the brothers to lie face down on the floor and holding them at gunpoint, Seiber threatened the crowd and tried to find out who were friends of the Schoenbergers. Stanton Norris, who was drinking a beer at the bar, admitted to being a friend of the Schoenbergers. When Norris refused to comply with his order to lie face down on the floor, Seiber grabbed Norris by the shoulders and fatally shot him in the back. The jury recommended and the trial court imposed a sentence of death. Seiber‘s conviction and sentence were affirmed on direct appeal to the court of appeals and to this court. See State v. Seiber (June 8, 1989), Franklin App. No. 87AP-530, unreported, 1989 WL 61733, affirmed (1990), 56 Ohio St.3d 4, 564 N.E.2d 408. On January 10, 1991, former Governor Celeste purportedly commuted the death sentence to life imprisonment without parole eligibility.
G
H
{¶ 68} According to the court of appeals’ opinion, in May 1979, Ralph F. DeLeo pled guilty to the murder of Dr. Walter Bond. After pleading guilty, DeLeo was immediately sentenced to an indefinite term of fifteen years to life
I
{¶ 69} A jury convicted John Salim of felonious assault with violence and gun specifications in connection with an incident that occurred on January 23, 1988. The evidence, as set forth in the court of appeals’ opinion, showed that on that date Salim fired a gun at William Terbrack as the latter prepared to drive out of a hardware store parking lot. A bullet was retrieved from the window post on the passenger side of Terbrack‘s car. Salim was sentenced to three years’ actual incarceration for the gun specification to be served prior to a three- to fifteen-year term for felonious assault. The conviction and sentence were affirmed on appeal to the court of appeals. See State v. Salim (May 17, 1990), Cuyahoga App. Nos. 56925 and 57964, unreported, 1990 WL 66467. On January 10, 1991, former Governor Celeste purportedly granted Salim a full pardon. As the above facts indicate, among those who purportedly received clemency from former Governor Celeste were some of the most notorious killers on death row. Celeste made the clemency decisions without awaiting the APA investigation and report. Yet, given the per curiam opinion, only the unfortunate John Salim, who supposed he had received a full pardon (as opposed to a commutation), must pay the price for Celeste‘s wholesale disregard of the Constitution.
II
{¶ 70} While I agree with the per curiam opinion that
{¶ 71} At the 1850-1851 Ohio Constitutional Convention, the debate on
{¶ 72} In choosing to alter its constitutional provision on executive clemency, Ohio adopted a provision remarkably similar to that incorporated by the
{¶ 73} Since the “subject to” clause of
{¶ 74} Ohio‘s 1802 Constitution, in
{¶ 75} “The terms ‘pardon’ and ‘reprieve’ have been adopted into the constitution of this state without defining or explaining them.” Sterling v. Drake (1876), 29 Ohio St. 457, 460. Just as “pardon” and “reprieve” are not defined in the Constitution, “commutation” also is not defined, so that we must look to the common law for its meaning. Although current statutes define these terms,9 those
{¶ 76} In State ex rel. Gordon v. Zangerle (1940), 136 Ohio St. 371, 375, 16 O.O. 536, 538, 26 N.E.2d 190, 194, the court considered the “scope of the executive power” conferred by
{¶ 77} The Gordon court went on to consider the definition of “pardon” and the different forms of pardon:
“A pardon may be absolute or conditional, full or partial; and a conditional pardon may be granted upon conditions precedent or subsequent.
“A full pardon purges away all guilt and leaves the recipient from a legal standpoint, in the same condition as if the crime had never been committed (Knapp v. Thomas, 39 Ohio St., 377, 381, 48 Am. Rep., 462); a partial pardon releases from punishment without remission of guilt. Lee v. Murphy, 63 Va. (22 Gratt.), 789, 12 Am. Rep., 563. The essential characteristics of full and partial pardons are such that either may be granted with or without conditions. * * * “An absolute pardon sets the accused free from the custody of the law, prevents further court action, terminates existing probation and makes anticipated probation impossible. * * *
“The power of executive pardon carries with it, as incidental thereto, the right to impose such valid conditions, precedent or subsequent, as the pardoning power may determine.* * *” Gordon, 136 Ohio St. at 376-377, 16 O.O. at 538, 26 N.E.2d at 194.
{¶ 78} The per curiam opinion appears to equate “pardon” with “full and unconditional pardon.” However, as the passage from Gordon illustrates, the word “pardon” encompasses several concepts. A “full and unconditional” pardon, which purges all guilt and places the recipient in the same position as if no crime had been committed, is only one subset of the several types of pardons. Another type of pardon, a “partial” pardon, which releases from punishment without remitting guilt, appears to be virtually synonymous with a “commutation,” which substitutes a lesser for a greater punishment, but does not remit guilt. Any definition of “pardon” which limits its meaning to clemency actions of the Governor that remit guilt is a narrow definition. While this narrow definition may appropriately be applied in some situations, the common-law meaning of “pardon,” when applied in the broader sense, also can easily encompass the concept of commutation, so that commutation is a subset of pardon.
{¶ 79} The per curiam opinion‘s citation of State ex rel. Atty. Gen. v. Peters (1885), 43 Ohio St. 629, 4 N.E. 81, does not establish that pardons and
{¶ 80} In this case, defendant Ralph DeLeo purportedly received a commutation to time served, while defendant John Salim purportedly received a full pardon. The per curiam opinion upholds DeLeo‘s purported commutation, but invalidates Salim‘s purported full pardon. Yet, under the definition of “pardon” set forth in Peters and in Gordon, what DeLeo purportedly received could just as easily be termed a partial pardon, in which case, presumably according to the per curiam opinion, Governor Celeste would have had to await the APA investigation and recommendation before granting clemency to time served. This point, as much as any other, belies the per curiam opinion‘s assertion that the word “pardon” is used with precision throughout
{¶ 81} When
{¶ 82} The records of the debates of the Ohio Constitutional Convention of 1850-1851 give no insight into why the “subject to” clause of
{¶ 83} However, the discussions regarding the addition of the reporting requirement to the executive clemency provision of the Constitution at the 1850-1851 Constitutional Convention do reveal that many of the delegates indiscriminately used the term “pardon” to refer generically to the Governor‘s clemency power.
{¶ 84} One delegate, Mr. Riddle, stated that “[t]he [Executive Department] committee inserted that clause [the reporting requirement] into the report for the purpose, that the legislature at its annual or biennial sessions might know what the
{¶ 85} Similarly, another delegate, Mr. McCormick, thought that the provision requiring the Governor to report each reprieve, commutation, or pardon granted “required nothing to be communicated to the Legislature except the names of the persons pardoned. If men had interfered improperly in getting reprieves for criminals, there was nothing in that section as it now stood, which required the naming of the persons who interfered to obtain it * * *. The only object to be gained by this section was the ascertainment of the number of prisoners pardoned * * *.” (Emphasis added.) Id. at 307. Mr. McCormick thus used the word “pardon” in a broad sense to refer to any act of executive clemency.
{¶ 86} Another delegate, Mr. Stanton, opposed a proposal to further require the Governor to report the names of all persons who had applied for a reprieve, pardon or commutation. “He supposed that the latter part of the section was intended for the purpose of making the Governor accountable to the people for the
{¶ 87} Yet another delegate, Mr. Larwill, stated that “[t]he Governor would no doubt have good reasons for exercising the pardoning power.” (Emphasis added.) Id.
{¶ 88} These delegates’ statements persuasively refute defendants’ argument that the framers of
{¶ 89} Not long after Ohio (in 1851) had amended its Constitution‘s executive clemency provision to specifically include the power to grant commutations, the United States Supreme Court decided Ex Parte Wells (1855), 59 U.S. (18 How.) 307, 15 L.Ed. 421. In the words of the court:
“The petitioner was convicted of murder in the District of Columbia, and sentenced to be hung on the 23d of April, 1852. President Fillmore granted to him a conditional pardon. The material part of it is as follows: ‘For divers good and sufficient reasons I have granted, and do hereby grant unto him, the said William Wells, a pardon of the offense of which he was convicted—upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life * * *.‘” Id. at 308, 15 L.Ed. at 423.
{¶ 90} Wells petitioned for a writ of habeas corpus, pointing out that
{¶ 91} The court in Ex parte Wells determined that the President‘s power to grant “conditional pardons”12 (commutations) was implicit within the power to grant “reprieves and pardons” conferred by
{¶ 92} The Ex parte Wells court determined that the word “pardon” is not so narrow as to include only an “absolute pardon“: “In the law it has different meanings, which were as well understood when the Constitution was made as any other legal word in the Constitution now is.” Id. at 310, 15 L.Ed. at 423. The court went on to state that “[i]n this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms.
{¶ 94} If the United States Supreme Court determined in 1855 that the President‘s power to commute a sentence is implicit in the power to pardon, it is reasonable to assume that Ohio‘s Governors operating under the authority of the
{¶ 95} It is apparent that the inclusion of “commutations” in the first line of
{¶ 96} In short, even though the power to grant commutations may be a power distinct from the power to grant pardons, the common-law meaning of “pardon” included “commutation.”
{¶ 97} Defendants argue that the omission of the word “commutations” from the “subject to” clause of
{¶ 98} Defendants’ reasoning is specious. Although a “full and unconditional” pardon is the ultimate pardon, whether a commutation differs greatly from a pardon is in the eye of the beholder. To the recipient of a full and unconditional pardon, that pardon is much different from a commutation (even a commutation to time served, which would also remit punishment) because the full pardon relieves the recipient of disabilities associated with the finding of guilt and wipes the record clean. However, to society as a whole, there is virtually no
{¶ 99} Lastly, the doctrine of expressio unius est exclusion alterius has no application regarding the “subject to” clause. Even though the words “commutation” and “pardon” appear together elsewhere three times in
{¶ 100} Since the application process leading to the Governor‘s grant of clemency was seen as subject to abuse, the drafters of
III
{¶ 101} From the foregoing it is apparent that
{¶ 102} In view of today‘s decision it should become a top priority of the citizens of this state to ensure that such reckless behavior on the part of a Governor will not be repeated. It is ironic that the reasons for amending the Constitution today are similar to the reasons the 1850-1851 Constitutional Convention amended the
{¶ 103} I would reverse the judgment of the court of appeals in case No. 93-1165 and reinstate the declaratory judgment of the trial court that the purported pardon and commutations are invalid.
DOUGLAS and F.E. SWEENEY, JJ., concur in the foregoing opinion.
Notes
With respect to the manner in which the Ohio Adult Parole Authority functions, the trial court found as follows:
“When the APA receives a clemency application, the application is referred to the investigation section of the APA, which prepares a report on the details of the crimes, the applicant‘s adjustment to prison or the community, and the support available to the applicant in the community. When the completed investigation report is received by the Parole Board, an initial vote is taken whether to immediately recommend against granting clemency or to conduct a hearing. If a hearing
“The governor shall have the power to grant reprieves, commutations, and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he may think proper, subject to such regulation as may be provided by law relative to the manner of applying for pardons. * * * He shall annually communicate to the legislature each case of reprieve, commutation, or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve.” New York State Constitution Annotated (1938) 54.
When Ohio‘s Constitutional Convention of 1850-1851 discussed the substance of what was to become
“‘Pardon’ means the remission of penalty by the governor in accordance with the power vested in him by the constitution. Pardons may be granted after conviction and may be absolute and entire, or partial, and may be granted upon conditions precedent or subsequent.”
“‘Commutation’ or ‘commutation of sentence’ means the substitution by the governor of a lesser for a greater punishment. A sentence may be commuted without the consent of the convict, except when granted upon the acceptance and performance by the convict of conditions precedent. After commutation, the commuted sentence shall be the only one in existence. The commutation may be stated in terms of commuting from a named crime to a lesser included crime, in terms of commuting from a minimum and maximum sentence in months and years to a minimum and maximum sentence in months and years, or in terms of commuting from one definite sentence in months and years to a lesser definite sentence in months and years.”
“‘Reprieve’ means the temporary suspension by the governor of the execution of a sentence. A reprieve may be granted without the consent of and against the will of the convict.”
10. I agree that reprieves do not fall within the broader meaning of “pardons.” Reprieves and pardons are recognized as being fundamentally different at common law because a reprieve is temporary. However, pardons and commutations are not recognized as fundamentally different at common law, but are interrelated concepts. Even though the power to grant reprieves often is said to come within the scope of the Governor‘s pardoning power, a constitutional provision allowing procedural regulation of “the manner of applying for pardons” does not allow for regulation of the manner of applying for reprieves. Because of this fundamental difference between reprieves and pardons,
The General Assembly has recognized the fundamental difference between pardons and reprieves.
11. As reported by Mr. Leadbetter from the Standing Committee on the Executive Department, the provision later incorporated into the Constitution of 1851 as
“Sec. 11. The Governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses, except treason, and cases of impeachment, upon such conditions, and such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law, relative to the manner of applying for pardons. Upon conviction for treason, he shall have power to suspend the execution of the sentence, until the case shall be reported to the Legislature at its next meeting, when the Legislature shall either pardon, commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall annually communicate to the Legislature each case of reprieve, commutation, or pardon granted; stating the name of the convict, the crime for which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve.” 1 Debates and Proceedings, supra, at 300.
The report of the Executive Committee reached its present form as
12. The court of appeals in the case sub judice went to some lengths to distinguish between a commutation and a conditional pardon, basing the distinction in part upon the necessity of acceptance by the recipient before a conditional pardon is valid. However, one major factor that separates the two is the attachment of a condition, which is what makes a conditional pardon “conditional.” In the same way that a pardon can have a condition attached, a commutation can also be subject to a condition. It is when the condition is attached that the recipient must consent before the conditional pardon or conditional commutation is effective. No consent is required when no condition is attached to the pardon or commutation. In re Victor (1877), 31 Ohio St. 206, paragraph three of the syllabus, recognized that in Ohio, a commutation is not the same as a conditional pardon, even though the Ex parte Wells court stated that it was for purposes of interpreting the United States Constitution. Since Victor presumed that a commutation is “for the culprit‘s benefit,” no acceptance of an unconditional commutation is required for its validity. See 31 Ohio St. 206, at paragraph three of the syllabus.
13. One researcher has determined that the power to commute is implicit within the power to pardon:
“The [Ohio] Constitutional Convention of 1851 added the term ‘commutation’ to the pardon provision in present section 11 of Article III. However, the term ‘commutation,’ although not used in early constitutions, has long been interpreted as being included within pardon, and texts have often not disassociated the power to commute from the power to pardon.” 3 Ohio Constitutional Revision Commission 1970-1977, Proceedings & Research of the Legislative-Executive Committee (Mar. 31, 1972), Research Study No. 11.