Did Haley Barbour, now the ex-governor of Mississippi, act within his gubernatorial powers when he pardoned at least 200 convicts as he left office in January, or did he flout a constitutional rule put into place by Mississippi framers in 1890?
That's the question the Mississippi Supreme Court faced Thursday as it heard arguments in a case that has roiled America's most conservative state. The pardons, which included some of the state's most infamous killers, have shocked and angered many citizens, law enforcement officials, and families of victims.
Mr. Barbour cited his Christian belief in mercy and redemption in signing off on the long list of pardons, but Attorney General Jim Hood, the only Democrat to hold statewide office in Mississippi, received an injunction from a lower court to stay 193 of the pardons because the felons in question allegedly didn't give proper legal notice to the public.
Mr. Hood, who has characterized Barbour's list of pardons as a mockery of justice and a “slap to the face” of victims, argued in court Thursday that most of the pardons violate a notice requirement put in the state constitution in 1890. That requirement, he said, is intended to give the public some influence over the process.
But lawyers representing Barbour and 10 pardoned felons argued that an invalidation of pardons on procedural grounds by the state Supreme Court would undermine the separation of powers between the executive and judicial branches. It would allow judges, without precedent, “to climb inside the heads of governors,” said defense attorney Tom Fortner, who represents four of the pardoned criminals.
“Were the rights retained by the people usurped by any branch of government? That's the argument that we have to analyze,” said Justice Michael Randolph.
Mississippi is one of dozens of states that allow governors to pardon felons, but the power has been used sparingly in modern times. Barbour departed from that tradition when he left office in early January, and the sheer number of pardons, the severity and high profile of some of the cases, and the fact that 56 felons filed no public notice at all are part of what drew the attorney general's ire.
The fact that Barbour, a former Republican National Committee head, took a law-and-order view during his two-term tenure has fueled a national debate about whether the pardons were an overreach of executive power or whether they amounted to a unique critique of an unjust legal system.
“The [publication requirement for the pardoned] was put in the constitution to have a cooling-off period, to let people comment, so there wasn't a last-minute rush and errors in the pardons themselves,” Hood argued on Thursday. “So, I believe there's been a violation of people's constitutional right, and I believe this court has the duty do correct it ... by voiding these pardons.”
But the problem for Hood, as several justices noted, is that established case law in Mississippi supports a governor's right of unbridled discretion in pardon cases.
Citing a 1923 case dealing with whether a lieutenant governor can sign pardons, Justice Jess Dickinson noted that the majority view was that “the governor is the sole judge of the sufficiency of facts and that no authority other than his judgment and conscience can determine whether [a pardon] is proper, and no other government [branch] has discretion. That' a pretty binding precedent.”
Mr. Fortner, whose clients include three convicted murderers, put the issue in blunter terms. “I believe the governor has the right to reach his hand into prison and pull out a handful of people and pardon them,” he said.
Hood said the framers of the 1890 constitution specifically added language that said, in effect, that pardons aren't valid until applicants publish notifications in local newspapers for 30 days. That addition came amid concern about last-minute pardons, he said, and was an attempt to remind the state's chief executive that his power came from the people, “not the opposite.”
But the actual application of that rule came under questioning, specifically concerning what, exactly, the 30-day requirement meant, for whose benefit it was made, and whether failure to properly post a notification could be defined as a “harmless” error that didn't substantially change the outcome. And how would an application for pardon be publicized by several felons whom one justice paraphrased as saying, “I never asked for nothing and someone just walked up and gave me a pardon for murder”?
“The public isn't being deprived of anything,” said Charles Griffin, an attorney for Barbour. “In the governor's opinion, nothing could have been said or done which would have changed his decision as it relates to the pardons.” He added, the court "cannot go beyond the constitutional power of the governor to use the deliberative process to grant grace in any manner he sees fit.”
The court has several options. It can throw the case out, void the 193 pardons in question, or remand each case to a lower court to be heard in a full trial. In any case, the nine justices will set a precedent about how far, exactly, a MIssissippi governor can go to use his or her personal judgment to administer mercy.