APPARENT ILLEGALITIES OF SENTENCING & EXECUTIVE CLEMENCY PRACTICES IN ARKANSAS - Apparent Illegalities Part 1 - Government - http://www.maxpagesplus.com/darkevilworld/Apparent_Illegalities_Part

The twisted and inherently unjust criminal sentencing and executive clemency situation is created by Arkansas’ “good ol’ boys,” as discussed in the article “Arkansas’ Executive Clemency Carrot” which explains the 25-year sentencing and clemency nightmare in Arkansas. The injustices within the system are deepened manifold and aggravated by the fact that the entire host of clemency “regulation” policies and laws that have been implemented since 1977 are most probably unconstitutional as well. To demonstrate why that may be so, it is necessary to briefly discuss some constitutional principles at the very heart of American government and law.

I. THE EXECUTIVE POWER & SEPARATION OF POWERS

The “executive power” has its root directly in the Arkansas Constitution itself. Article VI of that Constitution describes the various powers and duties of the Executive Branch of the government, and of the Governor himself. Section 18 of Article VI states in pertinent part, “In all criminal penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutation of sentences, and pardons after conviction...”

The Constitution otherwise separates the government of Arkansas into three basic spheres of powers and duties: the Judicial Branch that interprets and enforces the laws; the Legislative Branch that makes the laws; and the Executive Branch that administers the affairs of state and enforces the laws. Since the beginning of America’s form of government, the division between these branches of government was intended to be clear and distinct, and none of these branches is to intrude into the business of one or the other branches. Loosely speaking, this means that the courts are never to make laws, the Legislature is not to enforce the laws, and the Executive Branch is not to make nor interpret laws.

This strict division between the three branches of the state and federal governments is called “separation of powers”. A doctrine has evolved at law, stating that when one or the other of these entities improperly crosses the line into the business of one of the other branches, a violation of separation of powers has occurred, and the resulting acts or omissions are unconstitutional.

Perhaps the most visible recent “demarcation line” involving the separation of powers doctrine involves the “separation of church and state,” as the battle lines are again drawn because Congress has authorized the display of the Ten Commandments of the Christian faith in schools and other public places.

This issue of separation of powers is a very serious one, mainly because both the United States and the Arkansas Constitutions purposefully implemented this type of “check and balance” system so that no branch of government could easily take control over the other two, nor act independently and without the existence of the other two.

Therefore, since the judicial system has its Supreme Court, and the Legislature has its General Assembly, the Executive Branch was also given a balancing power in the form of the Attorney General, the ‘veto” power, and the “executive” power to grant clemencies vested in the Office of the Governor. Clemency is a collective term that actually includes reprieves, pardons, and commutations of sentence. That way, whenever an injustice or violation of law occurs, three branches of government have both the power and the duty to separately and independently set things right.

Of all the powers extended by the Constitution to the respective branches, the executive power of the Governor is one of the most important of all. This is so in part because, due to the many other laws that separate them, both the Legislature and the courts sometimes cannot act to correct an injustice, even if they want to. Issues of legal jurisdiction, or limits on such matter, or a Legislature being out of session, can prevent these branches from correcting an error or injustice.

For example, the Legislature may not pass laws in an extended session, if the law was not proposed in the General Session first; and the courts may not hear an appeal or an issue on an appeal if procedural requirements were not first met.

II. THE PURPOSE OF THE EXECUTIVE POWER

In the context of Arkansas’ criminal justice and executive clemency systems as discussed here, retired Arkansas Supreme Court Justice John I. Purtle, one the strongest champions of constitutional law and integrity in good ol’ boy Arkansas, recently said:

“Clearly, the framers of the Constitution realized the courts could simply not always mete out justice in criminal cases and wanted to provide a means to rectify those cases...

It is equally clear that the framers realized that the General Assembly MIGHT SOMETIMES PRONOUNCE LAWS THAT WOULD RESULT IN THE DENIAL OF JUSTICE, THEREBY CREATING SITUATIONS WHERE ONLY EXECUTIVE CLEMENCY COULD ACHIEVE A FAIR AND JUST RESULT. THEREFORE, THE PARDONING POWER OF THE GOVERNOR OVERREACHES BOTH JUDICIAL AND LEGISLATIVE BRANCHES OF GOVERNMENT IN CLEMENCY MATTERS ONLY.” (Emphasis mine).

Unquestionably, by means of the executive power the Governor of the State can correct an injustice or extend a mercy on behalf of the State and The People at any time, for any reason he wants to. That is, he needs no particular reason to grant clemency. There needs to be no error in a trial, any illegality in a case, nor injustice of a certain kind. The exercise of the executive power is generally left to the judgment of the Governor alone, without qualification, and without either the Legislature or Judicial branches being able to limit or somehow assail that power to make it ineffective.

Remember that it is intended as a final and absolute power of the Executive Branch for the very purpose of creating a “check and balance” first to supplement, but also to act against and to off-set when necessary, the powers of the Legislature and the Judiciary, precisely because that’s how the American form of government is designed.

In theory, any governor of any state could abuse the executive power. In theory, a governor could free all criminals within his respective jurisdiction, and there is not much that either the courts of the legislature could legally do about it. However, that kind of potential to abuse is simply submitted to the good judgment of voters who elect a governor to office. If they don’t trust him, if they don’t have faith in his sense for fairness, justice and public duty, they don’t have to elect him. It’s as simple as that. However, the Constitution itself does not otherwise impose any limitation whatsoever upon the exercise of the executive power, except perhaps in cases of treason and impeachment.

It is also very important to understand that the executive power is not extended to any particular governor, but rather than to the Office of the Governor. This is so because governors are elected to and leave office all the time (and that will be especially true with term limits soon to be imposed), while the executive power remains the same and exists for the same purpose it always has; to serve as a final and virtually absolute check and balance in the American way of government. In other words, the “rules” of the executive power are not to change with each new governor with by his whim; and the rules of the executive power are generally beyond the reach of the courts or the legislature, except if the Arkansas Constitution is rewritten on that subject.

Also, because the executive power exists in the first place, it goes without saying that the Constitution obviously creates a channel of petition directly between that office and the applicant for clemency. There is, therefore no per se “procedure” for anyone applying for clemency to follow, and by the very nature of the power itself, none is needed, simply because every governor can grant or deny clemency for whatever reason he wishes, any time he wishes. Moreover, there is nothing in the Constitution that requires that ONLY the offender himself may apply for clemency on his behalf. It appears that any interested party, such as a parent, spouse, sibling, offspring or friend can do so on the prisoner’s behalf. A governor may also HIMSELF initiate the grant of clemency in any case, and he is not required to “await” an application.

As a demonstration that the Governor’s Office both knows that no procedures are required, and as to how the “policies” are sometimes manipulated by the governor and his staff, two fairly recent clemency application responses should be considered.

The first response came in the case of a prisoner whose family had spent many thousands of dollars trying to “guarantee” that clemency would be granted. However, the Board then ended up finding the man’s appeal without merit, despite the involvement of a well-known and high caliber good ol’ boy attorney. I do not mean to imply that the thousands of dollars was spent by the prisoner’s family to actually buy clemency from the Governor, only that it was spent for good ol’ boy assurances from some source that the “guarantee” was to materialize for their son. Lawyers have been fleecing ADC prisoners and their families for years, charging exorbitant fees where they knew as a matter of fact and law that their “client” could not prevail on a legal claim BECAUSE there was no jurisdictional vehicle for raising the claim. More on that in another article.

The Board’s unfavorable vote, of course, left the governor in a precarious position in “doing the favor”, (if that, in fact was to be the case), so something had to be worked out to undo the political “block” of the Board vote. That letter, dated April 17, 1998, written by Robyne Doyle, the Governor’s Assistant for Executive Clemency, stated:
“After careful review and consideration of your file, the Governor has decided to take no action on your application.

According to Arkansas Code Annotated 16-93-207(c)(2) you may immediately reapply for executive clemency. If you wish to do so, an application can be obtained from the institutional Parole Officer.”

Under Act 5 of 1993, if the Governor did not act on an application within 120 days the prisoner could immediately reapply, while those whose applications were acted upon (unfavorably) would be required to serve another two or three years before running the gauntlet again.

In the wake of Act 498 of 1999, another prisoner more recently asked that his application be withdrawn, because he felt that it was unfair that he had been found without merit by the Board on an application submitted well before any word was received that SB 112 was being proposed, to require four years (really 5 or 6 years, as explained in “Arkansas’ Executive Clemency Carrot”) to reapply if the previous application was denied. The letter, dated July 1, 1999, was also written by Robyne Culver (now either married or resuming her maiden name), still the Assistant for Executive Clemency. It stated:

“While there is no procedure for withdrawing an application for executive clemency, you can write a letter to request that the Governor take no action on this particular application.

Executive clemency is an act of mercy given at the sole discretion of the Governor. THERE ARE NO STANDARDS upon which he must rely to decide WHO MAY OR MAY NOT RECEIVE CLEMENCY.” (Emphasis mine.)

TRANSLATION: By the time the prisoner writes his letter asking that the Governor take no action, (which a request to withdraw the application obviously already is), the prisoner will almost assuredly be informed that the before the letter was received the Governor had already acted to deny the application, and thus he must now wait four years to reapply pursuant to Act 498.

These letters echo the chess-like gambits, loop-holes, and good ol’ boy scams still present within “the process.” Also to be noted in these letters is the fact that the Governor and his staff do know that he is bound by no “procedures” for either granting or denying clemency to anyone. However, as stated earlier, governors are also not themselves free to implement a host of clemency procedures and policies that, in essence, would hamper or obstruct a petition for an exercise of the executive power, in part because the request for clemency is made to the Office of the Governor, not the individual Governor. Therefore, if every governor in his turn were free to “change the rules” on clemency, he would in some sense be legislating laws to obstruct otherwise “inviolate” constitutional rights, (but only those of an arbitrarily selective group), and it would create a wholly capricious clemency system at the whim of each new governor. In the ideal, however, the law and justice are to become stable, predictable, and uniform, not subject to happenstance and reactionary whims, political agendas, or private philosophies.

Throughout the history of the United States, the executive power has been exercised by the President or one of its governors thousands of times. And, yes, simply because the governor essentially does not have to have any reason other than “because,” clemency can be granted for political favors, for good ol’ boy interests, for creating political chits, or for any other reason. Prisoners no more have a right to complain about that, than the public would. If a governor is unscrupulous enough to do these things, then it’s just tough. Just like with the public, all that we as prisoners can have is the basic belief and faith that governors use the executive power with a little more integrity and for reasons of true merit, not for “political” reasons.

Again, Justice Purtle stated that:

“...from the beginning of statehood Arkansas has had an apparatus for CORRECTING THE FAILURES OF THE SYSTEM or for assuring the reward of those individuals who have slipped through the cracks, or who have been legally dealt an unfair sentence. THIS IS A CHECK AND BALANCE PROCEDURE for the criminal justice system. Whether an individual is afforded this procedure rests upon matters that are largely subjective and may, to an extent, even be political in nature.” (Emphasis mine.)

Of course, if the citizens get really upset with a governor over clemency, they will simply vote him out of office, like they did Bill Clinton in 1980. If a legislature is upset with him, they may try to impeach him (as they did to Bill Clinton in the Presidency.). As condemned prisoners, we simply go on serving our unjust sentences and die in prison; or find a means for legally challenging the misuse or abuse of power. It’s the way the cookie crumbles.

It is important to understand that the courts could never order a Governor to exercise the executive power, no matter what the circumstances. To do that would be a flagrant violation of the separation of powers doctrine. However, it is likewise true for he same reasons that no court could ever order the Governor not to grant clemency, except perhaps in cases of treason or impeachment.

Because the executive power is generally unqualified and unassailable by the other two branches of government as a matter of design, clemency has, in fact been granted to people even before trial took place, after indictment, while a trial was going on, and while a direct appeal of a conviction was still in process. See generally, COLE V. STATE, 98 ARK. 73. 106 S.W.2d 673 (1907): OSBORNE V. STATE 237 ARK. 5, 371 S.W.2d 518 (1963): SMITH V. SMITH. 262 ARK. 239. 555 S.W.2d 569 (1977) (Arkansas courts commenting on the executive power).

In other words, there is no CONSTITUTIONALLY required set limit of time that an applicant must serve before he can apply for executive clemency, and there is no criteria that he or she must first meet before doing so. No matter what the circumstances of an applicant’s case are, the Governor simply has the power to deny it for any reason, or to grant it at any time for any reason.

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