*1 513 Acceptance an earlier commencement date. persuasive, warranting equally precept of claimant’s necessitates abandonment a fundamental argument —the solely responsible assessing evidentiary weight credibility. commission (1987), v. 31 OBR Burley Packing, State ex rel. Coil Inc. Ohio St.3d N.E.2d 936. reason, that, were not pro- her applications
The fact remains whatever to Florida or Perhaps the was due to claimant’s relocation delay cessed sooner. reason, delay, Regardless an administrative while perhaps to error. in which there regrettable, compel payment compensation period cannot over As court permanent disability. appellate is no total stated: evidence in this not reflect well the Industrial Commis- delays upon “While the case do sion, sets reason for the date the order which forth the commencement disability is one of most orders which permanent compensation cogent total history.” has come before the court in recent reasons,
For I dissent. foregoing respectfully Moyer, C.J., dissenting foregoing opinion. concurs al., Appellants,
The State ex rel. Maurer et Appellee. v. Judge, Sheward, Appellees. Dir., al., Appellants, al., Wilkinson, et v. Maurer et rel. as State ex Maurer v. Sheward 71 Ohio St.3d [Cite 513.] (Nos. September 92-1350 and 93-1165 Submitted 1994.) 1994 Decided December *3 Murray, Ken for Debra appellant Brown case No. 92-1350. Pusateri, Barry W. Dennis and Ralph DeLeo. Wilford Shank, S. Adele for Rosalie Grant. Smith,
D. Shannon A. Timothy Smith and for Elizabeth Green. McNellie, Elizabeth A. Joy M. Maciejewski McAvoy, Sean for appellant Leonard Jenkins in case No. 92-1350.
Shaw, Pittman, Hill, Potts & Trowbridge, Thomas C. Alvin Dunn Joseph Smith, Figini; Matan & Smith L. Steven for Willie L. Jester. Sowash, Carson, Carson & Shostak and Herman A. for Donald Maurer. Igo, Richard B. for Freddie Moore and John Salim.
Gregory Meyers, W. for Lee Seiber. Miller, Michael Franklin County Prosecuting Attorney, and Bonnie L. Max- ton, Assistant Prosecuting Attorney, for appellee case No. 92-1350. Fisher, Decker,
Lee John J. General, Gideon Jack W. Attorney Assistant General, Attorneys appellants case No. 93-1165 and urging affirmance for curiae, amici Voinovich, George Reginald Wilkinson and Jill Goldhart case No. *4 92-1350.
K Ronald Bailey, appellee for Debra in Brown case No. 93-1165. Corcoran, Thorman, Melanie S. James W. Brown III and P. Christopher for appellee Leonard in Jenkins case No. 93-1165. H. Steinglass, curiae,
Steven urging dismissal or affirmance for amicus Law Professors’ Brief Amicus Curiae in Committee case No. 93-1165. Kobil, Moke, O’Neill, T. Moots,
Daniel Paul Kevin Francis Joy; and Peter Wolman, &Cope curiae, Stanton and Benson A. urging affirmance for amicus American Civil Liberties Union of Ohio Foundation case No. 93-1165.
Squire, Sanders & Dempsey David J. Young, urging affirmance for and curiae, amicus Catholic Conference of Ohio case No. 93-1165. Association, Inc., Law Legal L. Paul Cox and T. Walter Flor- Enforcement ence, curiae, amicus urging reversal for Ohio, Fraternal Order of Police of Inc. in case No. 93-1165. (1) court decide three issues: requires No. this to
Per Curiam. Case 93-1165 General authorize the 11, Article III of the Ohio Constitution Does Section of to the exercise the Governor’s procedural prerequisites Assembly prescribe (2) authority have the so, Assembly If does General clemency power? (3) pardons? as for commutations as well procedural prerequisites prescribe upon Assembly imposed procedural prerequisites in fact the General Has clemency power? Governor’s 92-1350, by case implicated No. which raises issues also will address case
We 93-1165, opinion. IV of No. in Part this
I 11, for the provides III of Article the Ohio Constitution Section clemency power: Governor’s conviction, grant reprieves, after power,
“He shall have [the Governor] commutations, offenses, except treason and cases pardons, for all crimes and however, subject, as think may proper; such conditions he impeachment, upon manner as regulations, pardons, such as treason, he prescribed by Upon may suspend law. conviction for execution sentence, meeting, at its report general assembly, the case to next sentence, direct its assembly pardon, either commute the general when shall execution, general communicate to the reprieve. or a further He shall session, commutation, or regular reprieve, each case of assembly, every convict, sentence, date, its and the granted, the name and crime of the stating reasons therefor.” pardon, reprieve, date of the his III of extensive revisions to adopted part Article was was clemency power in 1851. Prior to the Governor’s Constitution made provided II of the Ohio which set forth Section Article Constitution entirety: grant reprieves shall have the Governor] in its “He [the conviction, This section pardons, except impeachment.” after cases of Constitution, gives II which after United States modeled against Reprieves “Power and Pardons Offences the President States, except Impeachment.” Cases the United con- the Ohio of 1802 Both the United States Constitution and Constitution *5 clemency on only of The limitations powers clemency. ferred broad executive (Ohio Constitution) only were it could exercised after conviction power that be (both Ohio granted impeachment and that could not be cases clemency Constitutions). Neither Constitution authorized enactment United States However, clemency adoption with the power. to curtail the executive’s laws 518 III, on 11, provision altered its executive significantly Article Ohio
Section clemency. the hands places clemency power the Ohio Constitution
Although is Governor, clemency power The Governor’s clearly is not absolute. power 11, III. contained in Section See subject to whatever restrictions are 708, 101, 111, 92, 98, (1978), 378 N.E.2d v. Morris 55 Ohio St.2d O.O.3d State only after clemency may granted be provide 714. These restrictions treason, conviction, and not at all granted only partially cases may cases of impeachment. limited, clemency is limits on
Though
power
grant
the Governor’s
11, Article III.
clemency power
specifically
by
are those
authorized
377,
(1883),
Assembly may
v. Thomas
39 Ohio St.
392. The General
not
Knapp
exercising
clemency power.
interfere with the discretion of the Governor in
Morris,
Likewise,
N.E.2d at 714.
of Section Article III: conviction, power, grant reprieves, “He shall have after [the Governor] commutations, offenses, pardons, except for all crimes and treason and cases however, such conditions as he think impeachment, upon may proper; subject, the manner regulations, pardons, may to such as to added.) prescribed by (Emphasis law.”
It apparent from the structure of the first sentence of Section that the “subject “power.” to” clause modifies the word The first clause of the first executive provides grant clemency. sentence Governor of the word “however” in the second clause indicates a limit on that presence Thus, power. grant clemency the Governor’s is limited However, authority granted Assembly to” clause. to the General under the though may 3. Even courts not review the substantive decision of the Governor on whether case, constitutionally particular exercise in a courts consider whether authorized clemency power respected. example, attempted limitations on the have been For if a Governor convicted, recipient purported before the had been would be outside the scope clemency power constitutionally conferred Article III and invalid from Similarly, really constitutionally purported pardon if the outset. is not at all authorized ignored. Knapp procedural pardoning power pardon, on are held that a limitations once Id., delivered, However, Knapp syllabus. granted is irrevocable. 39 Ohio St. did not power. attempted pardon An consider the issue of constitutional limitations on the Governor’s constitutionally granted requirements without adherence to authorized is invalid and is not challenge. immune to
519 Fur- application process. to the “subject regulating to” is itself limited clause the General below, “subject provides to” clause thermore, as conclude the we of for applying “as the manner regulate the to to only authority with Assembly Morris, added.) authority Knapp the with Consistent pardons.” (Emphasis may not interfere regulations in that those is further limited regulations to issue deny pardons. to or grant Governor’s discretion with the to manner of regulations “as the authority prescribe the to We believe that authority the to Assembly with the General pardons” provides for applying the manner and governing procedure scheme regulatory prescribe that General we not believe the appeals, court of do pardons. Unlike the pardons. We applicants to the authority regulate has the Assembly General providing to” clause as the “subject the interpret language includes authority regulatory establish a scheme with the to Assembly pardons.4 to Our grant Governor’s to the exercise the prerequisites clause, which was “subject to” purpose with the interpretation is consistent authority procedural establish Assembly with the provide the General of Section were The drafters safeguards against granting pardons. the grant pardons might the Governor safeguards, that without such concerned political easily too influenced might or thorough without consideration of an than the merits clemency for reasons other grant deny factors to of the Convention Proceedings of the Debates Report claim. See inmate’s (1851) 306- of the State of Ohio 1850-1851 for the Revision of Constitution 11, the authority Section language purpose with the 307. Consistent to establish must also include regulate application process To pardons. the Governor’s exercise of prerequisites to would allow Governor exempt “subject from the to” clause the Governor clause render- safeguards adopted, for which the procedural circumvent meaningless. clause ing the reasons, Assembly we the General authorized
For the hold that foregoing prerequi- to prescribe procedural Article III of the Ohio Constitution valid, In any order process pardons. sites for executive application application complies on of a must be based an Assembly prescribe is not authorized to procedural prerequisites. General use concerning the Governor’s discretion regulations substantive regulatory Assembly up “subject authorizing to set Interpreting clause as the General to” pardoning power is consistent prerequisites to the of the Governor's scheme which includes exercise clemency power subject analysis to whatever limits are we found that the with our earlier where clause, limit the form of to” takes Article III. the case set forth Assembly regulations themselves limit to issue will an authorization to General pardoning power. Governor’s or in clemency power, intrude on the way discretion of the Governor. For example, not, the General Assembly acting could under the limited authority provided III, by Section enact a statute requiring the Governor to accept the recommendation of the APA in the exercise of his power. *7 Likewise, the Assembly General could not enact a forbidding statute the Gover- nor exercising from the in clemency power any specific class of cases.
II Having determined that Section III authorizes the General Assem- bly prescribe to procedural regulations application as to the process pardons, for we next consider whether that authority extends any types to other of clemency.
The of 11 language expressly provides the extent of the General Assembly’s to authority regulate application the process for executive clemency: * * * “[The shall have power commutations, Governor] to reprieves, * * *; pardons subject, however, regulations, to such as to the manner of added.) pardons, may prescribed be by law.” (Emphasis The for language of Section 11 clearly provides the Assembly General with authority the to regulate the application process However, for pardons. clause, “subject the to” does not implicate any way powers the Governor’s respect to commuta- tions or reprieves.5 The commutations, issue then becomes whether even though they are not clause, mentioned within “subject the to” may also regulated.
Plaintiffs argue the authority regulate to application process for “pardons” also includes the authority similarly regulate commutations. They reach that conclusion upon based their perception that the “pardons” word interpreted broadly to all types include of executive clemency. other words, plaintiffs argue that commutations are a pardons, subset of using the “pardons” word the drafters intended that the General Assembly have to regulate commutations as well as pardons.
We do not believe that commutations are a subset of pardons.
step
The first
determining the meaning of a
provision
constitutional
is to look at the language of
provision
itself. Where
meaning
of a provision
face,
is clear on its
we will
Though
validity
reprieve
case,
of a
is
any
not at issue in this
interpretation
we believe that
of
“subject
necessarily incomplete
to”
considering
clause is
types
without
each of the three
of
clemency.
reprieves,
they
executive
In terms of
fundamentally
we believe that
are
different from
pardons.
reprieve
temporary;
A
delayed
execution
grants
of a sentence is
when the Governor
reprieve.
reprieve
A
permanent
way
not
Reprieves, by
in the
very
is.
their
nature,
require prompt, totally
often
Consequently,
unfettered action
the Governor.
we find that
reprieves
governed by
“subject
and,
below,
are not
analysis
to” clause
consistent with our
Assembly may
regulate
General
application process
reprieves.
not
drafters intended
what the
attempt
an
divine
provision
look
beyond
not
621, N.E. 574.
66 Ohio St.
v.
Weaver
Slingluff
it mean.
provision.
careful review that
11 is obvious after a
meaning
The
of Section
three different
with the
the Governor
provides
The
sentence
first
commutations,
the first
The end of
pardons.
clemency reprieves,
types
—
authority
with the
Assembly
clear
the General
equally
providing
sentence is
clemency pardons.
one
only
type
regulate
application process
—
Assembly’s
limiting
the General
not be clearer
of Section
could
language
Moreover,
argument
commutations
regulate
pardons.
below,
is,
simply unsupportable.
as shown
pardons
are
subset
guide
interpretation
which
our
statutory interpretation,
canons
text,
“pardons”
the word
statutory
the conclusion that
support
constitutional
has
This court
does not include commutations.
in the
to” clause
provision
in the
have
used more than once
same
consistently held that words
evidence
unless there is clear
meaning throughout
provision,
same
*8
618,
(1946),
33
146 Ohio St.
O.O.
rel. Bohan v. Indus. Comm.
contrary. State ex
grounds,
on
92,
536,
syllabus,
one of the
overruled
other
paragraph
67 N.E.2d
(1979),
402,
347,
12
58 Ohio St.2d
O.O.3d
rel. Walker v. Indus. Comm.
State ex
together
are
listed
four
types
clemency
The
of
each
our (1877), In 31 Ohio St. clemency. In re Victor entirely types two different from a change punishment as “a court defined “commutation” this law penalties fixed a lower in the scale of crimes degree, higher * * 629, 650-651, 4 Peters 43 Ohio St. Atty. rel. Gen. v. State ex 87-88, “pardons”: court defined N.E. this designated specified penal from all or some discharges
“A the individual pardon conditional. partial, full or absolute or of his crime. It consequences punishment from the entire the offender pardon “A releases full absolute on consequent his offense, all the disabilities for his from prescribed conviction. commutation is ‘the of a change punishment person
“[A] to which has been condemned into a less severe one.’ “It is not a conditional but the substitution of a pardon, higher lower * * (Citation added.)
grade punishment omitted and emphasis from, conclusively pardons Peters case established that are different include, here, interpretation do not commutations. The with Section ends “subject the unmistakable conclusion that the provide to” clause does not regulate commutations. Instead of its approaching by considering plain language, the dissent attempts justify interpretation “pardons” “subject its that the word to” clause by wading includes commutations into the morass of made speeches drafters of Section 11. The dissent its interpretation perception bases on the distinguish because several drafters did not between commutations and pardons in their speeches regarding reporting clause of Section they intended that the word thé to” clause include commutations. a conclusion simply incomprehensible. Such We do not agree imprecise speeches by give individual drafters courts carte ignore plain blanche to of a language provision. constitutional Those drafters precise they were when wrote the reporting provision. provision, That which is the last sentence of 11, precisely distinguishes the three among types clemency: different session, “He shall communicate to the general assembly, every regular each commutation, case of reprieve, granted, stating the name and crime of convict, sentence, date, its and the date of the pardon, or added.) reprieve, Moreover, reasons therefor.” (Emphasis as we stated in Slingluff, history where, here, we will not look to the of a provision language provision is clear.
Given our tradition of interpreting statutory and constitutional language, the only plausible interpretation of 11 is the one we adopt today—the provides authority to” clause Assembly to the General to regulate the application process for pardons and not commutations.
Ill Because we have established that Section III authorizes the General Assembly regulate to the application process pardons, we must determine has, fact, Assembly whether the General prescribed any regulations. Plaintiffs claim that the General Assembly, through R.C. 2967 in Chapter general and R.C. 2967.07 in particular, procedural has established that requirements must be pardon may fulfilled before a be granted. argue Defendants that R.C. 2967.07 merely directory a statute forth setting procedures which the Governor may ignore. choose to provides:
R.C. 2967.07 sentence, or be reprieve shall “All commutation pardon, applications application, Upon filing of such parole authority. to adult the writing made the case, the investigation a into by governor thorough when directed the or commutation, made by or shall be reprieve a granting pardon, propriety of the writing governor a brief statement authority, report shall to which case, of the for or together facts with recommendation therefor grounds or pardon, reprieve, of a against granting to case.” relating the records or minutes and above, Constitution Article III of Ohio As we determined with regulate Assembly application process the General authorizes grant of the reprieves. not commutations or Because the respect and pardons, unfettered, any clemency respect reprieves to commutations power to that to limit the Governor’s Assembly the General acts regulation To a the extent reprieves commutations is violation Constitution. or precondi- limits or Chapter places R.C. scheme under regulatory it is reprieves, or unconsti- on commutations tions the Governor’s As note are concerned with R.C. 2967.07. we particularly and void. We tutional below, prerequi- Assembly provided regulatory in R.C. 2967.07 has the General commutations, reprieves: pardons as well as granting to the site Adult Parole on must be made and acted application question We do not may grant clemency. Authority before the Governor beyond underpinnings but it has no constitutional legislation, wisdom of this pardons. the unconstitutional references becomes whether we sever question of R.C. portions the otherwise constitutional reprieves
commutations from severa- presumptively 1.50 are provides statutory provisions 2967.07. R.C. or the thereof application “If of a section Revised Code any provisions ble: invalid, invalidity not affect other or is held does any person circumstance can given related which of the section or sections applications or provisions provisions to this end provision application, without invalid effect statute, we first portion of a must find order sever are severable.” statutory of which fundamentally disrupt the scheme will not such severance determining set forth the test for part. is a We provision the unconstitutional Geiger v. Geiger in fact severed in provision may whether an unconstitutional N.E. 33: 117 Ohio St. “ ‘(1) *10 of separa- parts capable the unconstitutional Are the constitutional and (2) Is unconstitution- may stand itself? be read and tion so that each as to it impossible of the whole make general scope al so connected with part or is if clause Legislature part of the to the intention give apparent effect (3) stricken out? necessary Is the insertion of words or terms in order to separate part part, give constitutional from the unconstitutional and to effect ” Id., only?’ quoting the former State v. 28 N.D. 147 N.W. Bickford of paragraph syllabus. nineteen The references to commutations and meet for reprieves severability the test provided Geiger. R.C. 2967.07 a provides regulatory imposes scheme that regulations upon words, same the three of types clemency. other it is as if were, separate there three but identical statutes each regulating type one Therefore, clemency. regulation of each type essentially is independent of the others. independence, Because their regulation commutations and not reprieves regulation is so connected to the pardons without reference to commutations and reprieves regulatory scheme will not give effect to the intention of the Assembly. requirements General The of the regulatory concerning pardons scheme will not change. only We need excise the constitutionally offensive references to reprieves commutations and in R.C. 2967.07 and need not add other language give order to effect to its Thus, that, regulatory Constitution, scheme. we hold pursuant to the Ohio R.C. may regulate 2967.07 the application process pardons only. portion constitutional,
Because a of the statute is only the Governor’s grant or denial of a pardon “subject to” the application process outlined R.C. 2967.07. His or deny subject commutations is not to those Therefore, regulations. the commutations at issue in this case remain valid. of the validity pardon granted one without application an in compliance procedure with the outlined R.C. 2967.07 remains issue. We must now determine noncompliance whether this precluded the Governor from granting above, pardon. As we noted the Governor exercises the pardoning power regulations, to” these though even the General Assembly is not autho- rized III to intrude in any way upon the Governor’s discretion to deny pardon.
The exercise pardoning power involves two distinct elements —the application process and the consideration process. phrase “manner of applying” pardons includes the entire application process, which encompasses itself, filing application recommendation, the investigation, the and the full report the APA. compiled by We find that the Assembly’s General regulate application process just extends the time before the Governor reaches a substantive decision concerning pardon. reached, Once point this Assembly’s General constitutionally granted authority to regulate procedural- ly pardoning power the Governor is at its end. terms,
By its clear R.C. 2967.07 contemplates that an investigation by the APA that leads to a against recommendation for or pardon may be initiated two *11 (or the applicant’s for someone on applicant first is an ways. way The distinct the way The is for behalf) the APA. second pardon request directly to file a case is real this occur. The issue investigation to that the direct Governor investigation and recommen- to the APA required the is await Governor whether a may grant pardon. he dation before pardons for applications that all requires of R.C. 2967.07
The first sentence “all” to has the word Assembly The chosen to the APA. General shall be made the APA for evaluation. go for a must to every request that indicate 2967.07 to word “shall” R.C. addition, the has chosen use the Assembly General process. pardon application the APA’s role the three times in connection with entire the investigation of the APA mandatory This indicates the nature application process. involvement the APA investigation report that APA mandates the hold that R.C. 2967.07
We may grant he to the Governor before presented must be recommendation initiates which Governor situations in the pardon. This mandate includes those APA investigation. is Assembly permissible, by of APA involvement General requirement to in aid of authority “legislate Assembly’s it is within the because General is to The statute meant 39 Ohio St. 392-393. [pardoning] power.” Knapp, will is considered each for whom person ensure that information about is Governor, be made. This may so that an informed decision be available to the pardons” “as to the manner precisely type regulation power grant pardons Article III. Governor’s contemplated by Section mechanism, investigate, APA to requires which subject procedural this is pardon. report may before Governor recommend discretion whether to Because the has ultimate substantive Governor weight requirement place any there no the Governor deny pardon, is APA. or the recommendation investigative report on either the whatsoever However, equivalent power proceed not to the disregard power sought to first fulfilled. The abuses procedural requirements being without the III are to” clause Article by remedied addition of Thus, subject during process application process. those occur power on placed the Governor’s regulation, procedural requirements “subject to” out of be to read the clause To find otherwise would pardon. III, power it is that that clause affects when clear to grant pardons. Governor in a which affects the regulates way if R.C. argue
Defendants 2967.07 However, unconstitutional. pardon, then the statute is Governor’s are those authorized Constitu- pardoning power on the regulations placed R.C. 2967.07 was enacted Knapp, at 392. Since itself. See 39 Ohio St. tion III, constitutional to to the of Section Article the statute is pursuant regulates application process pardons. the extent that it that the conferred on the Governor the Ohio recognize pardoning We Indeed, justice in cases. as Alexan- *12 particular Constitution is essential to ensure (Cooke Ed.1961) 500-501, in in der Hamilton stated The Federalist No. 74 support clemency power of the broad conferred on the President “Humanity good policy conspire Article II of the United States Constitution: dictate, possible that the should be as little as benign prerogative pardoning every country partakes fettered or embarrassed. The criminal code of so much in necessary severity, easy exceptions that without an access to favor of justice guilt, sanguinary unfortunate would wear countenance too and cruel.” However, subject to abuse. The framers therefore abuses, Assembly regulations authorized the Ohio General to enact to limit those thereby allowing procedural requirements which limit the exercise of Governor’s In power. Chapter Assembly R.C. the General has enacted the regulations safeguards against authorized abuse. Those do not safeguards way stand in the of the pardoning power. Governor’s substantive exercise of the It would take an amendment Ohio’s Constitution authorize substantive Nevertheless, limitations. do safeguards impose procedural requirements which were in this case. The bypassed pardon purportedly granted was invalid from the outset. curiae,
Amicus American argues Civil Liberties Union of Ohio Foundation if this court reverses the decision of the .court of appeals, cause should be appeals remanded the court of to resolve issues that court did not reach in its However, determined, law, previous opinion. we have as a matter of that former Governor Celeste acted outside the scope constitutionally his conferred clemen- cy in granting pardon. The other of error in assignments raised the court of cannot alter that appeals finding. judgment of the court of in case No. 93-1165 appeals respect is affirmed with to the commutations and pardon. declaratory reversed as to the judgment the trial court that the pardon is invalid is reinstated.
IV Case No. 92-1350 92-1350, No. in case the defendants case No. 93-1165 from the court appeal appeals’ complaint prohibition. denial of their for a writ of Defendants contend that the court of erred in trial appeals refusing stop court from action, in exercising jurisdiction declaratory judgment subject which is the in appeal case No. 93-1165. We find that our resolution of the issues ease No. 93-1165 is of the issues raised in this and that appeal, determinative (cid:127) judgment affirm the Accordingly, we are moot. issues therefore remaining in case No. 92-1350. appeals court of
Judgment affirmed 92-1350. case No. part Judgment affirmed part and reversed No. 93-1165. in case JJ., Wright concur. A.W. Evans, Sweeney, Moyer, C.J., concurs separately. JJ., part. in part concur and dissent and F.E. Sweeney,
Douglas, Resnick J., District, Appellate sitting Third J. R. Pfeifer, Evans, John *13 Moyer, C.J., judgment opinion in the and separately. concur concurring I 11, III, and Ohio Constitution R.C. majority apply the that Article and by the of the Ohio clearly as intended drafters Constitution Chapter 2967 majority an the Assembly. aspect I to discuss separately the write General responsibilities being very one of the difficult decision that demonstrates judge. conclu- produces the interpretation careful and restrained majority’s Chapter and to 2967. words of the R.C.
sion that is faithful the Constitution judgment the wisdom or the requested or review required We are not even the sentences of pardoned when he and commuted the acts of Governor Celeste issue, If the my office. that were days two business before he left defendants however, That, is not of the actions. vote be to invalidate all Governor’s would if even any Nor there that required dispute are to decide. issue we a report to receive the Constitution and the statutes required by Governor were Authority pardon Adult before granting from the Ohio Parole in the disregard report he the recommendation contained could Indeed, granted in which Governor Celeste commutation. manner pardon or if he had suggests in the us that even cases before commutations followed recom- unlikely it is he would have statutory procedure, followed the not be Parole that of the defendants Authority of the Adult mendation that is the reason precisely It that granted pardon. appears a commutation or limit that would amendment the Constitution the dissent advocates an commutations, beyond reprieves grant pardons, of the Governor to power observed, 11, III. Justice Marshall As Chief limitations “[cjourts law, Osborn v. nothing.” and can will the mere instruments are Wheat.) (9 738, 866, (1824), 6 L.Ed. 234. 22 U.S. Bank States United judicial responsibility the fundamental role of majority opinion reflects able to judicial oath of office must be faithful to the Every judge restraint. That deciding views when cases. personal law from his or her separate the judicial decision-making. unique challenge is a aspect judging fundamental us, issues before I am from the constitutional separating personal opinion be not provisions of the Constitution “[i]f reminded of the observation comfort, they may as well be they they when as well as when upheld pinch (1934), 398, 483, 54 Loan Assn. v. Blaisdell 290 U.S. Bldg. abandoned.” Home & (Sutherland, J., 231, 256, dissenting). There is no comfort 78 L.Ed. S.Ct. to the facts in the case plain language of the Ohio Constitution produced their death-penalty us. The conduct of the defendants before If the lowest form of human behavior. convictions and death sentences is However, it is for them. penalty appropriate anyone, appropriate death legal has no relevance to the issues before us and must be personal belief judicial required decision we are to render. The words of the separated from meaning only applied by majority can be their as given plain Constitution analyze away engage To the words of the Constitution is to an act of decision. corroborating one’s own belief that the Governor’s actions were unwise. among government
The distribution of the three branches of rests on power government. delicate balance. It is a fundamental element of American S. Euclid v. Jemison 28 Ohio St.3d 28 OBR 503 N.E.2d We are the successor in the office of Governor to exercise our constitutional urged by predecessor to invalidate the commutations and a of his office. judicial the exercise of in such a case. If we Restraint should characterize the citizens of Ohio in adopted abandon words Constitution of the executive branch and the will of the people. we invade both *14 reasons, concur, I in foregoing regretfully, per For the albeit curiam opinion. Resnick, J., in and in concurring part dissenting part.
Alice Robie
I by today’s a of a a is authorized to overturn By pen opinion stroke Governor juries upheld by the death verdicts of and which have been penalty judges justices and federal court appellate judges, Supreme countless state Court it for a judges. Today’s per opinion says perfectly acceptable curiam is Governor commutations to whomever days the last of his or her administration APA and The awaiting investigation report. he or she desires without first that does not authorize holding specifically basis of such a is the Constitution result, “as to the manner of for commutations.” As regulations enacted the General “subject to” regulations absolute are pardons full and Assembly. III, process Article and Section opinion curiam misconstrues per
The pardoning scope Governor’s interpretation an inaccurate engages former granted by Governor pardon purportedly I that the power.6 agree While he invalidated, commutations it clear to me that is Celeste should for the same reason advanced very fail for granted also should purportedly pardon. failure unambiguous, III is Section opinion proclaims curiam per Howev- point. its to” clause at that analysis essentially ends readily is resolvable
er, which not interpretation this case involves constitutional vacuum, construction, if in a but must rules of as solely resort to hornbook 11, Article underlying context eye with an on the historical considered on opinion, focusing The per into its current form. curiam Ill’s evolution commutations, not does pardons semantical difference between supposed fails thereby compre- development, of this historical grasp importance certainly capable Article III is of this issue. scope hend the entire for the “manner of applying and the reference to interpretation, more than one rashly presumes. Given per opinion is clear curiam pardons” not so as not is history resort to constitutional provision ambiguous, the constitutional is consideration of constitutional cursory it is crucial. Even only appropriate, opinion that the curiam is erroneous. history per reveals type were with precisely drafters of Section Article III concerned in his accomplished which Celeste pardoning power of abuse of former Governor illustrates, As to commute days graphically last office. this case just pardon. abused as is the Former Governor Celeste easily limits intentionally procedures and flouted the constitutional bypassed established safeguards the Constitution clemency authority, ignoring procedural on his into Assembly put place regarding application authorizes the General clemency. unwilling give Members of this court are process executive binding statutory clemency power, effect to the exercise prerequisite (along accompa- APA recommendation finding investigation an victims’ are conditions nying required relating rights) precedent notifications necessary that no APA involvement pardon, for the Governor’s but *15 “clemency synonymously appropriate “pardoning power” It is to refer to the Governor’s 6. historically aspect pardoning power.” has been to be an the commute understood thorough development scope pardoning power power. For of the of the a discussion (D.D.C.1974), States, F.Supp. v. Saxbe see President the United Hoffa for a commutation.7
This seems an curious result when one considers that both the especially clemency of the aspects power, and the commutation are Governor’s pardon per opinion, which has as its source Section Article III. Given the curiam clemency, an applicant when the Governor considers whether process complete acting, must wait until the APA is before but if the Governor alternative, a contemplates applicant, Governor for that same of the APA The near procedural investigation safeguards ignored. can be schizophrenic engendered by result curiam makes the per opinion point argument better than other that the Constitution does in fact authorize the Assembly to regulate application process clemency, General executive- allows that APA body require involvement to ensure that the Governor is able decision, an to make informed whether the Governor is- considering or a commutation. case, In order to the magnitude underscore of this a brief recapitulation circumstances of each defendant’s criminal conviction appropriate. order and
A Donald Lee Maurer confessed to the killing seven-year-old Dawn M. presented Hendershot. The evidence at trial that on September revealed Massillon, Ohio, Maurer to a pick drove school up'his stepchildren and neighborhood a few children at day. the end of the school Dawn Hendershot was respect functions, Authority 7. With to the manner in which the Ohio Adult Parole the trial court found as follows: clemency application, application investigation APA ‘When the receives a is referred to the APA, crimes, prepares report applicant’s adjustment section of the which on the details of the prison community, support community. applicant or the and the available When the completed Board, investigation report is received an initial Parole vote is taken whether to immediately against granting clemency hearing. hearing recommend or to conduct a If a is to be conducted, Prosecutor, sentencing Judge, notice sent to the local and those victims or victims’ [4943.041(A) family designated 2945.07(A), §§ members ] receive notice R.C. and as 2967.12(A) (B). required by obviously § given R.C. These interested individuals are then opportunity applicant clemency. to submit comments to the APA on whether the should receive Generally, respond these individuals are allowed three weeks’ time within which to to the APA ’ hearing, consisting panel majority notice. At the aof of at least a of the members of the Parole Board, investigation, Department the Board will consider the the microfiche records of the Ohio Corrections, testimony taken, applicant. report Rehabilitation and and the After vote is prepared signature §§ is then for the of the board members. See R.C. 2967.07 and 2967.12. Usually, delay there is a two to three week after the vote is taken to circulate the recommendations members, among voting penal attending Board who travel to each of Ohio’s institutions hearings. signature, report After the APA submits the to the written Governor which includes a case, together brief statement of the facts in the with the recommendation of the APA. In such Governor, application directly required instances that an is submitted to the it is still to be through process pursuant § channeled APA back review to R.C. 2967.07.” *16 Maurer appear, for the other children to to Rather than wait the first arrive. to country out into the Dawn. drove Dawn alone with Maurer depart decided vehicle, shotgun, twelve-gauge a area, removed stopped where he a wooded At sexually girl. molest then-began He led Dawn into trees. and strangle attempted and frightened by his actions Maurer became point some Dawn in the Maurer shot struggle, she with her sweater. When started Dawn leaves, return and left the scene to and back, body twigs her lifeless covered home. to his kidnap- with a specification, murder jury guilty aggravated
A
Maurer
found
recommen-
adopted
jury’s
trial court
sexual
gross
imposition.
and
ping,
were
His conviction and sentence
be executed.
the defendant
dation
v.
State
this
See
appeals
court.
appeal
on direct
court
affirmed
4469,
(Feb.
CA-6166,
WL
13, 1984),
unreported, 1984
No.
Maurer
App.
Stark
10,
239,
379,
(1984),
January
B
eight
with specifications,
murder
aggravated
Leonard
convicted
Jenkins
kidnapping.
and five counts of
robbery,
attempted
one count of
murder
counts
County,
robbery
Cuyahoga
from a
that occurred
The convictions stemmed
21,
Ohio,
and another individual entered
branch
on October
1981. Jenkins
City
patrons
gunpoint.
Bank and
bank employees
office of National
held
officer,
Johnson, ap-
police
Anthony
During
robbery,
Jenkins observed
officer,
seeing the
peer
Upon
bank and
inside.
the front door of the
proach
way
shoot
out of the
partner
that he
his
would have to
their
stated
Jenkins
injured
gunshot
to the head when
mortally
Officer Johnson was
bank.
A
recommended
exchanged gunfire.
jury
bank
exited the
two
Jenkins
His
and sentence
a sentence of death.
conviction
imposed
and the trial court
court of
and to this court. See
appeal
appeals
affirmed on direct
were
(Feb.
45231,
1984),
v. Jenkins
24,
App.
unreported,
No.
1984 WL
State
Cuyahoga
311,
164,
jury A
convicted Debra
left
home
Tonnie
her
morning
July
on the
The evidence showed that
man
day
on that
with a
was last seen
to attend summer school. She
Cincinnati
On
matching
description.
Brown’s
Alton
and a woman
identified as
Coleman
19, 1984, a
an abandoned
that he was
July
building
preparing
realtor entered
and found a
prospective buyer
partially decomposed body.
show to
Scrawled
body
niggers
above the
on the wall were the words “I hate
death.” Police
ultimately
body
Storey.
presented
identified the
as that of Tonnie
The evidence
during
fingerprints
trial included Brown’s
on a Michael Jackson button Tonnie
*17
had
she
Brown admitted to another individu-
wearing
day
disappeared.
been
Brown,
she,
al that she had killed Tonnie “for her clothes” and that
“had to do
The state further introduced
linking
what
had to do.”
evidence
Brown to
[she]
attempted
least
other murders
several other
murders
assaults. After
five
murder,
Brown
of Tonnie’s
trial
finding
guilty
jury recommended and the
a
judge imposed
sentence of death. Her conviction and sentence were affirmed
appeal
appeals
a direct
to the court of
and to this court.
v. Brown
See State
15, 1987),
C-850434,
(Apr.
9743,
Hamilton
No.
App.
unreported, 1987 WL
(1988),
305,
10, 1991,
38 Ohio St.3d
D
5, 1983,
On the
morning August
Willie Lee Jester entered an AmeriTrust
Cleveland, Ohio,
Company branch office in
opened
day.
soon after it
for the
Grair,
approached
Benjamin
security
Jester
Patrolman
the bank’s
guard, while he
a
sitting
speaking
telephone
at desk
on the
and shot him in the chest. Jester
counter,
it,
$3,122
then ran to the bank
over
leaped
and took a total of
from a
teller’s drawer. Patrolman
gunshot
Grair died as
result of the
wound to his
heart,
injuries
torso. The fatal
to his
right lung and liver were caused
aby
single, hollow-point
specifically designed
bullet—a bullet
to cause
damage
more
than a smooth-point
Upon finding
bullet.
Jester
guilty
aggravated murder
specifications,
jury
with two
recommended and the trial court
imposed
sentence of death. The conviction and sentence
were affirmed
a direct appeal
appeals
26, 1985),
to the court of
and to this court.
(Sept.
See State v. Jester
49065,
8631,
Cuyahoga App.
unreported,
No.
1985 WL
32 Ohio
affirmed
147,
10, 1991,
January
St.3d
E A three-judge panel County Hamilton convicted and sentenced Elizabeth to death for murder and aggravated Green consecutive term of ten to twenty-five years aggravated robbery. The convictions stemmed from the Willis, friends, of one of killing robbery neighbor .Thomas Green’s so stamps food sold Willis some Coulter January On Coulter. Belinda day, Later that purchase drugs. could turn use cash that she Green so as on her hands wearing socks Green, Coulter, apartment entered Willis’s money. and took his then stabbed Willis fingerprints. Green avoid leaving neck, to his nine knife wounds as a of one hundred Willis died result Thomas participated had to a that she psychologist admitted and arms. Green torso times. Green’s only three she had stabbed Willis attack but claimed court of appeal in a were affirmed direct death conviction sentence 11, 1990), No. App. Hamilton (July v. Green and to this court. See State appeals 141, 609 (1993), Ohio St.3d C-880504, 1990 WL unreported, affirmed com- purportedly former Governor Celeste January N.E.2d On eligibility. parole life without imprisonment sentence to muted Green’s death F three murder with aggravated Lee Horse” Seiber jury “Crazy
A convicted On of Stanton Norris. killing in connection with penalty specifications death *18 evening, 1985, for the time that 21, a Columbus bar second entered May Seiber closed An stood at the loaded, accomplice caliber revolver. carrying a cocked .38 had returned door, hand, barring anyone leaving. in from Seiber shotgun front had men, Schoenberger, and one whom two Alvie Louis the bar confront in remarks a woman making his visit for lewd during Seiber earlier criticized holding the floor and to lie face down on forcing brothers the bar. After were and to find out who threatened crowd tried gunpoint, Seiber them Norris, a at the drinking who beer Schoenbergers. Stanton friends Norris refused bar, Schoenbergers. a friend of the When being admitted to floor, by on Seiber Norris grabbed to lie face down with his order comply trial jury in the The recommended and fatally and shot him back. shoulders were conviction and sentence sentence of death. Seiber’s imposed a court v. and court. State to the court of to this See appeal appeals on direct affirmed 61733, (June 87AP-530, 1989), 1989 WL 8, App. unreported, Franklin No. Seiber 10, 1991, former (1990), 4, January 408. On Ohio St.3d 564 N.E.2d affirmed life imprisonment death sentence to commuted the purportedly Celeste Governor ( parole eligibility. without G murder, aggravated a two jury convicted counts
Rosalie Grant was arson. aggravated one two count penalty specifications, with death each 1, 1983, a April a.m. on at trial revealed that around 6:00 evidence presented sons, one-year-old two infant Donovan in the bedroom of Grant’s ignited fire as a of severe burns the fire result boys died two-year-old Joseph. Grant, however, from escaped burning entirely smoke inhalation. house unharmed, socks, hair, jacket, shoes and no fully pants, unsinged dressed with free of of smoke inhalation. Other than eyes, any signs soot on her face or first Grant’s claim that she had tried to save her babies when the smoke awoke her, out the presented attempted put there was no evidence Grant had investigators fire or to save the children. Arson determined that the fire had set and fueled accelerant. No determination was intentionally liquid been type made as to the exact of accelerant that had been used. The evidence also fire,. approximately purchased revealed that two weeks before the had Grant $5,000 boys worth of life insurance for each of the Grant listed as beneficiary. had not for herself purchased policy three-year- Grant her Furthermore, old daughter Shylene, living who was elsewhere. a can of charcoal fluid, lighter bearing fingerprints, partially Grant’s and a burned kitchen chair matching those in home were found days nearby Grant’s four after the fire vacant house. The conviction and sentence were affirmed on direct to the appeal (Nov. 9, 1990), appeals court of and to this court. See v. Mahoning State Grant App. No. 83 C.A. unreported, affirmed, 1990 WL 67 Ohio 10, 1991, January St.3d N.E.2d On former Governor Celeste purportedly commuted Grant’s death sentence to life imprisonment with no parole restriction as to eligibility.
H
to the court of
According
appeals’ opinion, May
F.
Ralph
pled
DeLeo
guilty to the murder of Dr. Walter Bond. After pleading guilty, DeLeo was
immediately
to an
years
sentenced
indefinite term of fifteen
to life imprisonment.
appeals
the court of
affirmed the trial court’s dismissal of DeLeo’s
petition
or,
alternative,
for enforcement of a
plea bargain
parole,
as to
*19
petition
19,
to vacate the conviction and sentence.
(Sept.
See State v. DeLeo
1989),
89AP-107,
App.
Franklin
No.
unreported,
I
A jury convicted John Salim of felonious assault with violence and gun
specifications
23,
in connection with an
January
incident that occurred on
evidence,
appeals’ opinion,
as set forth
the court of
showed that
on
date
a gun
Salim fired
at William Terbrack as the latter
prepared
drive out of
A
parking
a hardware store
lot.
bullet was
post
retrieved from the window
on
passenger
side of Terbrack’s car. Salim was sentenced to
years’
three
actual
incarceration for the
to be
gun specification
prior
fifteen-year
served
to a three-to
term for felonious assault. The conviction and sentence were affirmed on appeal
to the court of appeals.
17, 1990),
See State v. Salim (May
Cuyahoga
Nos.
App.
57964,
10,
56925 and
unreported,
1991,
As the above facts among purportedly those who received clemency from former Governor Celeste were some of the most notorious killers on death row. Celeste made decisions awaiting without the APA investiga- Yet, tion and report. given per curiam opinion, only the unfortunate John Salim, (as supposed who he had full pardon received a opposed to a commuta- tion), pay price must for Celeste’s wholesale disregard of the Constitution.
II I agree While with the per opinion 11, curiam that Section Article III of the Ohio Constitution authorizes the General Assembly prescribe procedural regulations as to the application process for clemency, my executive interpreta- tion of Section III Article convinces me authority granted that the by the “subject to” to regulate clause “the manner for pardons” includes commutations. The per opinion curiam pays lip service to the history behind the III, evolution of current Section without realizing consequences of that evolution. thoughtful analysis A the addition of the require- to” ment of the Ohio Constitution should include consideration of the reason that clause was added. The per curiam opinion fails to consider and put into effect the intention of the drafters of Section Article III.
At the Convention, 1850-1851 Ohio Constitutional the debate on Section Article III was limited to the so-called reporting requirement, the last sentence of delegate, Riddle, Article III. A Mr. commenting on the insertion of clause, stated: “It was known that the exercise pardoning] power [the * * * much complained of. was but too easy [I]t to excite the sympathies of men in behalf of the convicted criminal. Gentlemen of the committee were aware from their own experience that they had often put their names to papers soliciting reprieves and pardons on the representation of persons, whom they had confidence. They knew also that persons in the same manner might governor; influence the they further knew that on the strength of that influence brought to bear on him names of persons standing high society he often exercised instances which the public could not see any propriety. doubt, The power, abused, no had been but when they looked into the entire matter they would find that no blame could be attached to the *20 1 Governor.” of Report the Debates and Proceedings of the Convention for the (1851) Revision of the Constitution of the State of Ohio 1850-1851 306-307. clemency, Ohio provision on executive constitutional choosing to alter its In of New by the state incorporated to that remarkably similar provision adopted of New York Only a brief discussion its of 1846.8 York into Constitution 11, III Ohio’s drafters of to illustrate that necessary debates when as New York’s drafters by the same concerns motivated must have been power. pardoning on the Governor’s restrictions they place decided to that authored York Constitutional Convention of the New proceedings recorded reveal that the pardoning powers altering that state’s executive the provision In amendments were particular, debated. several extensively was provision one, power, including pardoning on the Governor’s offered relative to restrictions pardoning Chatfield, curtailed the Governor’s greatly that would have by a Mr. by as be law.” may prescribed restrictions subject it to “such power by making of the for the Revision of the Convention Proceedings of the Debates and Report (1846) 351. This Chatfield amendment of New York of the State Constitution wording “subject regulations to such and the ultimately rejected, was id. applying pardons,” to manner for provided by law relative of may as be Mr. position, Taylor of his Taylor, adopted. support proposed Mr. of applying conditions relative to manner “agreed that there should be some carry an his idea out relation he offer amendment power, and would out, carrying rules for its Legislature provide This leave the that. would Id. at 357. power entirely of the with the Governor.” leaving the exercise 11, Article III of the Constitution “subject to” clause of Section Ohio Since section, it is comparable York’s fan closely language so New mirrors concerns about of 1850-1851 shared York’s delegates assume that the Ohio New also conviction of New York’s sharing while pardoning power, abuses of the pardoning power ultimate discretion exercise delegates that the Governor’s is a which reflects compromise to” clause infringed. should not those concerns. provided: New York Constitution of 1846
8. Section Article IV commutations, pardons governor reprieves, after shall “The have conviction, impeachment, upon except for treason cases of such conditions and with all offenses limitations, subject regulation may proper, as he think to such such restrictions and * * * annually pardons. provided He shall law relative to the manner of pardon granted, stating legislature reprieve, each case of or communicate to the date, convict, convicted, the and its and the date of the crime of which he was sentence name (1938) commutation, reprieve.” New York State Constitution Annotated discussed the substance of what was Ohio’s Constitutional Convention 1850-1851 When Standing Committee on the Executive become Section Article III of Constitution very closely presented Department version on executive which debate draft language Por York of 1846. of this resembled Section Article IV New Constitution version, Proceedings Report for the Revision of of the Debates and the Convention draft see (1851) 300. The text the draft version of the State of Ohio 1850-1851 the Constitution opinion. reproduced footnote of this *21 Constitution, 5, II, in gave power Ohio’s 1802 Section Article the Governor “the and No mention of was included in grant reprieves pardons.” commutations 11, in this authorization. The word “commutations” was added 1851 to Section 1850-1851, Article III at the Constitutional Convention of which also added the to” clause at end of the same sentence. terms ‘pardon’ ‘reprieve’ adopted “The and have been into the constitution of v. (1876), Sterling Drake this state without or them.” defining explaining Ohio 457, Constitution, “pardon” “reprieve” St. 460. Just as and are not defined in the defined, “commutation” also is not so that we must look to the common law for its terms,9 meaning. Although statutory current statutes define these those defini- necessarily tions do not control the consideration of their in the meanings Constitution. ex rel. Zangerle State Gordon v. 371, 375, 136 Ohio St. 16 O.O. 190, 194, 26 N.E.2d the court “scope power” considered the of the executive III, by
conferred determining meaning that the common-law “reprieves” the terms and “commutations” are materially “not different” from (which statutory Thus, noted, today). definitions are the same the court “ as reprieve temporary suspension by defined ‘the Governor sentence,’10 execution of a and commutation of sentence as ‘the substitution of a ” (Footnote added.) for a greater punishment.’ Id. lesser 2967.01(B) provides: 9. R.C. “ penalty by governor ‘Pardon’ means the remission of in accordance with the vested in entire, may granted him may the constitution. Pardons be after conviction and be absolute and partial, may granted upon precedent subsequent.” or and be conditions or 2967.01(C) provides: R.C. “ governor ‘Commutation’ or ‘commutation of sentence’ means the substitution of a lesser greater punishment. may convict, for a A except sentence be commuted without the consent of the granted upon acceptance performance by precedent. when and the convict of conditions After may commuted sentence shall be the one existence. The commutation be commuting crime, stated in terms of commuting from a named crime to a lesser included terms of years from a minimum maximum and sentence in months and ato minimum and maximum sentence years, commuting years months and or in terms of from one definite sentence months and to a years.” lesser definite sentence in months and 2967.01(D) provides: R.C. “ ‘Reprieve’ temporary suspension by governor means the of the execution of a sentence. A reprieve may granted against without the consent of and the will of the convict.” agree reprieves meaning “pardons.” I Reprieves do not fall within the broader and pardons recognized being fundamentally reprieve are as different at common law because a However, temporary. pardons recognized fundamentally and are not commutations different at law, concepts. though grant reprieves common but are interrelated Even is said often scope pardoning power, provision allowing to come within the of the Governor’s a constitutional procedural regulation applying pardons” regulation of “the manner of does not allow for reprieves. reprieves manner of Because of fundamental this difference between Constitution, pardons, Section Article II of Ohio’s 1802 II of the Section Article United and the “pardon” the definition went on to consider court Gordon pardon: forms of different conditional, a conditional partial; full or
“A absolute or may be upon precedent subsequent. granted conditions legal from a recipient away guilt “A all leaves pardon purges full had been committed as if the crime never condition the same standpoint, *22 462); Thomas, St., 377, 381, partial pardon 48 a Am.Rep. 39 Ohio v. (Knapp (22 Lee v. 63 Va. guilt. Murphy, of punishment from without remission releases partial of full and Gratt.), 789, 12 The essential characteristics Am.Rep., 563. * * * granted be with or without conditions. may are such that either pardons law, of the custody free from the “An sets the accused pardon absolute anticipat- makes action, existing probation further court terminates prevents * * * probation impossible. ed thereto, it, right incidental of carries with as pardon “The executive conditions, pardoning power or as the precedent subsequent, such impose valid ”* * * 376-377, Gordon, 26 16 O.O. 136 Ohio St. at may determine. N.E.2d at 194. with “full and uncondition- “pardon” opinion appears equate curiam per
The illustrates, However, the word “pardon” as from Gordon pardon.” passage al which pardon, purges A “full and unconditional” concepts. several encompasses if as no crime had been position the same guilt places recipient all of committed, type Another types pardons. is one of the several of subset remitting from without “partial” pardon, punishment a which releases pardon, “commutation,” a which with substi- virtually synonymous to be guilt, appears guilt. Any definition tutes but does not remit greater punishment, a lesser a of meaning limits actions the Governor “pardon” which its may definition appropriately is a narrow definition. While this narrow guilt remit situations, when meaning “pardon,” the common-law be some applied sense, concept can of commuta- easily encompass in the broader also applied tion, pardon. that commutation a subset of so reprieves and upon both each conferred executive the States Constitution
pardons.
pardons
Assembly
recognized
and re-
has
the fundamental difference between
The General
governor may grant
reprieve
a
prieves.
provides
a
for a definite time to
“[t]he
R.C.
2967.08
obviously
death,
provision
application.”
or
person
or
notices
This
under sentence of
without
reprieve
procedural
importance
prompt
clear that
recognizes the
action
some
cases
makes
addition,
2967.03,
may
requirements
granted.
reprieve
a
In
R.C.
need not be fulfilled before
commutation,
reprieve
Authority
pardon,
authorizing
or
Parole
to recommend
Adult
may
Governor,
authority
provides procedural
requirements
must
fulfilled before
which
requirements regarding
pardon
the recommendation
but
such
recommend
reprieve
conspicuously
are
absent.
per
opinion’s
Atty.
curiam
citation of State ex rel.
Gen. v. Peters
pardons
Ohio St.
N.E.
does not establish that
and commutations are
fact,
mutually
per
opinion
all cases
exclusive terms.
curiam
includes the
“A
pardon among
quoted
pardon
Peters definition of
the material
from that case:
discharges
designated
specified penal
the individual
from all or some
conse-
quences
of his crime.
It
be full or
absolute or conditional.”
partial,
added.)
definition,
Id. at
In this defendant DeLeo Ralph purportedly received a commutation to *23 served, time purportedly while defendant John Salim received a full pardon. commutation, per opinion upholds curiam DeLeo’s purported but invalidates Yet, full under purported pardon. “pardon” Salim’s the definition of set forth in Gordon, Peters and what DeLeo received purportedly just easily could as be case, termed a partial pardon, presumably according which to the curiam per opinion, Governor Celeste would have had to await the APA investigation and granting clemency recommendation before to time served. as much point, This other, per opinion’s as belies the curiam assertion that the “pardon” word precision used with throughout Section Article III. Section Article III adopted power
When 1851 and the of commuta- specifically tion was mentioned as clemency powers, one the Governor’s the to the delegates Constitutional Convention of 1850-1851 were either conferring exercise, power they new for the Governor to or were explicitly conferring a which had power implicit been the 1802 Constitution’s conferral of the to power If grant pardons. delegates the were conferring power, new then it would be power safe to assume that the to grant commutations was considered to be something different from power grant pardons, the to and was not to be made subject to “as regulations applying to the manner of for But if pardons.” the delegates confirming were which power already power existed under the to then it grant pardons, fairly phrase concluded that the use of the “as to applying pardons” “subject the manner of for in the to” clause was meant to case, If power. include the commutation the latter is the and if the word “pardon” enough encompass is broad to the word “commutation” in this way, then as way in a limited one in two senses: “pardon” III Article uses of Section of the first sentence in the first clause clemency powers of the
aspect clause, way that also, in an III, expansive in the to” 11, Article the of “commutation.” concept includes 1850-1851 Convention of the of the Ohio Constitutional
The records of debates uses Article III the “subject to” clause insight why no into the give into whether Section manner or pardons,” “as words of 1802 conferred on Ohio’s Governor II of Ohio Constitution to commute sentences. However, requirement of the regarding reporting discussions the addition Constitu- at the 1850-1851 clemency the Constitution provision executive indiscriminately used the many delegates tional Convention do reveal generically power. to refer the Governor’s “pardon” term Riddle, committee Department] stated that delegate, “[t]he [Executive Mr. One into requirement] report purpose, for the reporting inserted that clause [the or what the legislature might at annual biennial sessions know its pardoning power.” vacation in the done exercise during Governor had added.) 1 at 306. Because the Proceedings, supra, Debates (Emphasis required to communicate “each Governor reporting requirement proposed 300,11 commutation, Mr. Riddle thus reprieve, pardon granted,” or id. case of refer power” grant any term to the “pardoning used inclusive clemency. of executive type McCormick, delegate, thought provision requir- Mr.
Similarly, another reprieve, pardon granted report each ing Governor Legislature except names of the nothing to be communicated to the “required If improperly getting reprieves had interfered persons pardoned. men criminals, stood, required in that section as it now which nothing there was * * object it *. The naming who interfered to obtain persons *24 Department, reported by Standing Mr. from the Committee on the Executive the 11. As Leadbettér 11, originally incorporated as Article III read: provision later into the Constitution of 1851 power grant reprieves, pardons the commutations and “Sec. 11. The Governor shall have to conditions, conviction, offenses, treason, upon except impeachment, all and cases of such after for may subject regulations proper, to such restrictions and limitations as he think and such treason, law, by pardons. Upon provided to manner of for conviction for he relative the sentence, reported suspend shall to have of the until the case shall the execution Legislature sentence, pardon, Legislature meeting, shall commute the at next when either its sentence, grant reprieve. annually a shall communicate of the or further He direct execution commutation, pardon Legislature reprieve, granted; stating case of or the name each date, convict, convicted, sentence and its the date of the the crime for which he was reprieve.” Proceedings, supra, at pardon or 1 Debates and 11, present III report as Section Article after the Executive Committee reached its form report delegates and voted proposed to the were debated on. amendments committee prisoners number of of the was the ascertainment by this section gained * * added.) thus used the at 307. Mr. McCormick Id. (Emphasis *.” pardoned clemency. act of executive any sense to refer to a broad “pardon” word Stanton, require to further proposal delegate, opposed Another Mr. a reprieve, had applied names of all who report persons Governor of the section was part that the latter supposed commutation. “He pardon people accountable to the the Governor purpose making for the intended had par- to inform them whom he pardoning power, exercise of the added.) Id. (Emphasis doned.” no doubt Larwill, that Governor would “[t]he Mr. stated delegate,
Yet another added.) Id. power.” (Emphasis exercising pardoning reasons for good have that the argument refute defendants’ persuasively statements delegates’ These in a narrow sense that “pardon” III the word Article used framers of Section at the delegates Many of commutation. concept not include the did to mean clemen- “pardoning power” 1850-1851 used Convention of Constitutional refer to executive Furthermore, word was used to “pardon” cy power. clemency power. exercise (in 1851) executive clemen- had amended its Constitution’s
Not after Ohio long commutations, the United include the cy provision specifically (18 How.) 307, (1855), 59 parte decided Ex Wells U.S. Supreme Court States the court: L.Ed. 421. In the words of Columbia, District of convicted of murder petitioner
“The granted Fillmore April, on the 23d of 1852. President hung sentenced to be [sic] of it is as follows: ‘For divers part him a conditional The material pardon. him, the hereby grant I and do unto granted, and sufficient reasons have good Wells, upon of the offense of which he was said William convicted— is, life; natural the sentence of imprisoned during condition that he be his ” * * 15 L.Ed. for life *.’ Id. hereby imprisonment death is commuted at 423. out that Section Article petitioned corpus, pointing for writ of habeas
Wells to grant pardons authorizes the President II of the United States Constitution place authorize the President to conditions reprieves, explicitly but does not II authorizes pardon. argued Wells upon under the pardoned and that since he had been pardons, absolute section, an absolute with a he must have received such conferred condition, entirely. Id. at actually that his sentence was remitted void so of Columbia refused at 423. The Circuit Court of District L.Ed. *25 affirmed. Supreme and the Court application, to power that the President’s parte in Ex determined
The court Wells (commutations) to power implicit was within pardons”12 “conditional II of the United States Section Article conferred pardons” “reprieves argument petitioner’s court found that the determining, so Constitution. legal meaning due of the mistaken, “arising from want of consideration exclusively it be used It is that was meant to supposed pardon. word punishment a criminal from the exempting pardon, to an absolute reference How.) (18 309,15 at for a he has committed.” 59 U.S. law inflicts crime which the 423. L.Ed. at not so is narrow “pardon” court that word
The Ex Wells determined parte “In the meanings, an law it has different pardon”: as include “absolute to was made other well understood when Constitution which were as at at 423. The court in now is.” Id. 15 L.Ed. legal word the Constitution constitution, to its by giving of the words to state that this view “[i]n went on one of inference at meaning, power conditionally to is not pardon their proper all, one conferred terms. but argument is, considering power incident of the to mistake an
“The of the being part power of a instead of its pardon power, the exercise new 315, 15 Id. at L.Ed. at pardon.” Supreme determined in 1855 that President’s
If the United States Court in the it is reasonable implicit power pardon, to commute a sentence is under of the state’s 1802 operating that Ohio’s Governors assume sentences, since the also had the to commute implicit power Constitution resembled provision closely Ohio on executive Constitution’s delegates the 1850-1851 Constitutional United States Constitution. totally did new to the Constitution therefore not add Convention III, but Section Article affirmed adding adopting the word “commutations” judice lengths distinguish appeals in the 12. The court of case sm6 went some between upon necessity basing part pardon, and a conditional the distinction in commutation However, major recipient pardon acceptance by is one before a conditional valid. factor condition, pardon a conditional separates two is the of a which is what makes attachment attached, way pardon can have a a commutation can In the same that a condition “conditional.” subject recipient must a condition. condition is attached that the consent also It is when the required commutation is effective. No consent when before the conditional conditional In re Victor 31 Ohio no attached to the or commutation. St. condition is Ohio, syllabus, paragraph recognized that is not the same as a three of the commutation parte purposes though the Ex Wells pardon, court stated that it was conditional even presumed Since Victor a commutation is “for the interpreting States the United Constitution. benefit,” validity. acceptance required commutation for its See 31 culprit’s no of an unconditional syllabus. paragraph Ohio St three *26 already possessed.13 power the Governor in the line of Section of “commutations” first It that the inclusion apparent is quiet was to doubt clemency powers III one of done Article as the Governor’s power not the to so limited that it did include pardon that the to was power into some thereby magically altered “pardon” of not meaning commute. of to the delegates only one connotation. The statements precise word “par- the word imprecision indicate the of 1850-1851 Constitutional Convention 2967.01(B)’s addition, pardons may “partial,” be provision don.” In R.C. demonstrate recognition pardons, of further partial Peters and Gordon courts’ there is an only pardon, is of and that pardon” type that a “full and absolute one concept of and the of generic “pardon” sense the word overlap between Thus, to can understood be power commutation. since the commutation (in sense) 11, Article power Section Ill’s pardon contained within to its broad (as “subject pardon) to well as to is provision power that the Governor’s commute * * * * * * is broad regulations, applying pardons” to as to the manner of regulations include as to the manner of for commutations. enough applying to short, to power power even commutations though grant power grant pardons, meaning “pardon” distinct from the to the common-law clearly subjects “commutation.” III the Governor’s included Article commutations, pardons, as power grant as well the Governor’s to pgwer regulations. power to authorized Hence the Governor’s commutations III is pursuant subject regulations to Section enacted Assembly application General as to the process. argue that the omission of the word “commutations” from the
Defendants “subject clause of Article III a conscious decision to” reflects commutations, to make manner of and not pardons, drafters subject regulation. pardon, guilt Defendants claim that a because it remits as if crime recipient position well so that'the is in the same as no had punishment as committed, to be out. singled They been is the ultimate act was meant merely punishment claim that a which reduces without further out degree intentionally is a and so was left remitting guilt, lesser to” clause. implicit power power has to commute is within the One researcher determined pardon: pardon of 1851 the term to the [Ohio] “The Constitutional Convention added ‘commutation’ However, ‘commutation,’ provision present although section 11 Article III. term not used constitutions, early long interpreted being pardon, has included within and texts have been pardon.” often to commute from the 3 Ohio Constitutional not disassociated 1970-1977, Proceedings Legislative-Executive & Committee Revision Commission Research (Mar. 1972), Study Research No. 11. pardon a “full and unconditional” reasoning Although is specious. Defendants’ from greatly whether a commutation differs pardon, the ultimate pardon, of a full unconditional recipient of the beholder. To the eye (even commutation a commutation to time pardon is much different from a served, full relieves the punishment) would also remit because the which finding wipes record guilt of disabilities associated with recipient whole, However, society there is no difference between virtually clean. as a earlier, a full mentioned defendant pardon. commutation to time served and As *27 served, a commutation to time granted in this case was purportedly DeLeo the yet a full action of purportedly granted pardon, defendant Salim to receive the clemency despite allowed both offenders determi- Governor Celeste of the judicial system imposition original in the which led the guilt nation of of commutations in longer punishment. Although purported terms of some the parole, without and so did imprisonment this case reduced a death sentence to life commutations, pardons, very not the release of like are recipients, effect the last by the To the hours of significant permit actions Governor. Governor first the APA his commutations without would be term day recognized. in a are devastating rights finally being blow when victims’ One Chapter that at important requirement the most factors under R.C. 2967 is the before APA recommends or any pardon least three weeks the be “sent pendency clemency application notice of the of the must to the attorney and of the court of of the prosecuting judge pleas county the common against was found.” Additionally, which the indictment the convict R.C. 2967.12. APA must send a to the under certain circumstances the similar notice victim of 2967.12(B). crime, representative family. the or to a member of the victim’s R.C. very requirements. are for these is to avoid shock good There reasons One the the the victims when hear over they families of would encounter first the news sentences of the who murdered their loved ones senselessly the convicts were commuted. unius est alterius has no expressio exclusio
Lastly, application the doctrine of “subject though to” Even words “commutation” regarding clause. III, times “pardon” together elsewhere three Article appear Section “subject fact that the to” not mention specifically clause does commutations does “pardons” not a narrow word in that clause. It is require reading readily of the 11, Article apparent “subject that the to” clause was inserted into Section III as a regulate application process invoking the entire compromise (with just used in its power, grant pardons pardon and not narrow sense). the Ohio significantly, More consideration debates of Constitution- regarding reporting requirement al Convention of 1850-1851 it not use the apparent III makes drafters did terms readily Article finding require which would precision with the “commutation” “pardon” commutations. not include to” clause does in the “pardons” clemency was to the Governor’s leading application process Since regula- III Article allowed abuse, the drafters subject seen were authorized regulations Those to curb that abuse. to be prescribed tions (or on the someone applicant initiated whether process, application behalf) Governor, to act is of the Governor but the applicant’s inmay A certain Governor regulations. to the subject exercised specifically may have applicant a commutation when to grant situations choose concepts interrelationship of the full pardon. for a applied by the obviously recognized interrelationship an ignored, cannot be commutation Convention to the Ohio Constitutional delegates statements reported from “commutation” of the word that the omission It is inconceivable 1850-1851. regulation. commutations from intended to exclude “subject to” clause was Ill III authorizes that Section apparent it is foregoing
From the clemency, for executive process Assembly regulate application General I emphati- being which is considered. or a commutation whether it is a *28 11, Article conclusion that Section opinion’s curiam per with the cally disagree not commutations. respect pardons, with regulations only “III authorizes offending supposedly sever the attempt to misguided curiam per opinion’s The conclusion misguided necessary by equally its 2967.07 is made portions of R.C. by the Constitu- is unfettered to commute sentences power that the Governor’s toto, manda- makes APA involvement 2967.07 is constitutional tion. R.C. or a commutation. pardon may grant before the Governor tory of this of the citizens top priority it should become a today’s In view of decision not be of a Governor will part behavior on to ensure that such reckless state today are amending reasons for Constitution It is ironic that the repeated. amended the the 1850-1851 Constitutional Convention to the reasons similar Constitutional Convention delegates to the 1850-1851 of Constitution though Even powers. pardoning the Governor’s felt the need to enumerate commute, there remained give did the Governor 1802 Constitution (later Supreme Court to rest the United States put of doubt degree small clarify Wells) was amended to not, Constitution that it did so Ohio parte Ex must be it that our Constitution way, appears In much the same matter. applica- includes manner of that the specify amended to that no it is clear to me While pardons. as well as tions for commutations agree. this court do not majority necessary, amendment should such people of Ohio that it is time for case, I convinced strongly this am After unavoidable limitations placing explicit and a constitutional amendment consider and to (including clemency power on the Governor’s limits specific far as to on the commute, reprieve), go place so but not pardoning I that the power. agree While discretion the use of Governor’s justice system, pardoning of our criminal indispensable aspect an power is relatively few conditions to the important too to be trusted power whims of a lame duck Governor. unfettered judgment
I the court of in case No. 93-1165 and appeals reverse the would purported the trial declaratory court that judgment reinstate are invalid. commutations Douglas JJ., in the foregoing opinion. F.E. concur Sweeney, City Spadafora ex rel. et al. v. Toledo Council. State Toledo City State ex rel. v. Spadafora
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