and is not represented by paid attorneys, the Governor in his discretion may grant the pardon without the publication requirement being complied with.10

12

It is declared to be a misdemeanor punishable by fine of from $100 to $500, for anyone to present an application for a pardon to the Governor without first having complied with the requirement for publication." The courts may inquire as to whether or not there has been compliance.1 If there has not been, and if there is no recital on the face of the pardon to show that it is an exception, as provided by the statute, the pardon is void. A court of chancery may not reform the instrument to incorporate this recital nor may an acting Governor do so after his authority as Governor has ceased.13

The 1937 act creating an advisory pardon board, authorizes the board to "make such rules and regulations covering procedure as are not inconsistent with the law.14

Pleading and proof.-It is not admissible to prove a pardon by parole evidence without showing that the pardon itself, or a certified copy of it, could not be introduced.15

16

Effect of pardon.-The legal effect of a pardon is to restore the convict at once to the right of liberty and citizenship. A pardoned convict is restored to his former capacity to testify as a witness, but the fact of conviction may still be urged against his credibility." A later case holds that a pardon removes "every vestige of infamy" and places the defendant "in statu quo in his relations to the State." But it seems that the court was referring only to the rights of citizenship.18

A pardon absolves the defendant from the necessity of paying an imposed fine to the State. Likewise, it takes

10 Id. 4221.

11 Ibid.

12 Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1928).

13 Nelson v. Hall, 171 Ark. 683, 285 S. W. 386 (1926); Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1926).

14 Ark. Dig. Stat. (Pope, 1937) § 12773.

15 Redd v. State, 65 Ark. 475, 40 S. W. 374 (1898).

18 Ex parte Hunt, 10 Ark. 284 (1850).

"Werner v. Stat, 44 Ark. 475, 40 S. W. 374 (1898) (a full pardon may be one which designates the particular offenses for which the defendant was convicted and any recital that the defendant is restored to his rights of citizenship is superfluous).

18 Redd v. State, 65 Ark. 475, 40 S. W. 374 (1898).

away the criminal character of the judgment for costs, preventing their collection by imprisonment, but leaves in force the judgment of costs to be collected as a civil debt.19

Delivery. A pardon takes effect upon its delivery to the defendant or his representative. Acceptance is presumed in the absence of any proof to the contrary.20 So a warden who refused to discharge a convict immediately upon the latter's receipt of a pardon from the Governor was guilty of false imprisonment.21 So, too, where the defendant was pardoned after he had paid his fine to the sheriff, but before the latter had paid it into the treasury of the county, it was held that title to the money had not vested in the county and the sheriff must refund it.22 And where defendant had paid the sheriff by delivering to him his promissory note for the fine, the note was not collectible after the Governor had granted the maker a full pardon, the note not being payment of the fine which, therefore, had not passed beyond the pardoning power.23

24

Conditional pardon.-The Governor has the constitutional power to pardon convicts upon such conditions and restrictions as he deems proper. Under this unrestricted power, "he has the right to attach to his pardon any condition, precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed." 25

In addition to this general power, the Governor, by a statute in effect from 1838 to 1935, has specific authority to grant a pardon on condition that the convict leave the State and never return. A person pardoned on such a condition who was found within the State more than 10 days thereafter had to serve his full sentence over again, losing all time served prior to being pardoned.26 This provision did

19 Villanes v. State, 105 Ark. 471, 151 S. W. 1022 (1912) ; Edwards v. State, 12 Ark. 122 (1851); Ex parte Purcell, 61 Ark. 17, 31 S. W. 738 (1895).

20 Redd v. State, 65 Ark. 475, 40 S. W. 374 (1898).

21 Weigel v. McCloskey, 113 Ark. 1, 166, S. W. 944 (1914).

22 Fishel v. Mills, 55 Ark. 344, 18 S. W. 237 (1892).

23 Baldwin v. Scroggin, 15 Ark. 427 1855).

24 Ex parte Hunt, 10 Ark. 284 1850); Baldwin v. Scroggin, 15 Ark. 427 (1855); Ex parte Hawkins, 61 Ark. 321, 33 S. W. 106 (1895).

25 Ex parte Hawkins, 61 Ark. 321, 324, 33 S. W. 106 (1895).

A reward of

20 Ark. Dig. Stat. (Crawford & Moses, 1921) §§ 3375–3379. $200 was provided for the arrest of any convict so pardoned who was found within the State after a 10-day period. Ibid. Pardons granted under this statute have been held not to violate the constitutional prohibition against the infliction of exile. Ea parte Hawkins, 61 Ark. 321, 33 S. W. 106 (1895).

not, however, restrict the Governor's discretionary power, and if the pardon did not follow the conditions set forth in the statute, it was to be construed to have been issued under the general pardoning power, and rot, under this statute. Thus, if a convict pardoned with the condition to leave the State, but with no reference to return, did leave but later returned, he was not guilty of a violation." In 1935 the legislature repealed the provisions authorizing pardon upon condition that the prisoner leave the State and never return.2

28

Revocation.-On breach of a conditional pardon and conviction thereof, the former judgment of conviction is restored to its full force and effect,29

Restoration to citizenship.-While full pardon restores citizenship, it is the practice in Arkansas to refer to pardons granted after the expiration of sentence for the sole purpose of restoring political rights as "restorations to citizenship." Twenty to forty such restorations are granted annually, as compared with only three full pardons in 8 years (1928–35). Furloughs.-Beginning about 1924, it has been the practice of the Governor to grant both definite and indefinite furloughs. The practice does not seem to be based upon any specific statutory or constitutional authority. No supervision of any kind is provided for men released on furlough. "Furloughs are granted by the Governor, with the assistance of his secretary and a full-time clerk. Temporary furloughs of 30 to 90 days, usually 60 days, are used to enable prisoners to attend funerals, harvest the crops, etc. There are no regulations as to the time which must be served before a 'furlough' is granted. Indeed, they are sometimes granted before the convicted defendant reaches the penitentiary." It has been suggested that furlough is in the nature of a conditional pardon, also that it is a form of reprieve. It appears that a furlough is neither of these things, but is a commutation of sentence which the Governor by the constitution is authorized to give. In upholding the "indefinite furlough," the court states: "It is true that the word 'fur

*Ex parte Hunt, 10 Ark. 284 (1850).

"Ark. Acts 1935, No. 60.

"Es parte Brady, 70 Ark. 377, 68 8. W. 34 (1902).

80

lough' is a military term and means leave given to a soldier to be absent from service for a certain time, but the name should not control where it is at variance with the substance of the instrument." so The furlough system seems to have grown up in Arkansas partly to supplement the present practice of not allowing a prisoner to apply for parole until one-third of this sentence has been served. But this rule is self-imposed and may be changed by the board. We believe that while definite short-time furloughs have something to recommend them when carefully administered, the indefinite furlough is, from the point of view of public protection much inferior to release under parole. In the long run the use of parole will best protect the interests of society when it is completely divorced from the Governor's power of executive clemency." 3

The present Governor has stated that his granting of furloughs was conditioned on receiving the approval of the trial judge, the prosecuting attorney, and the sheriff of the county a quo. An exception to this rule is where the furlough is applied for to allow the applicant to go home on account of death in his family.

That there has been serious dissatisfaction with the system of releasing prisoners on pardons, paroles, furloughs and the like is indicated by the vigorous protest embodied in the report of the Pulaski County grand jury made to Judge McGehee in the first division of the circuit court, in Little Rock, in September 1935. It was partly as a response to such criticism that the legislature in 1937 created the board of pardons and paroles.

GOOD-TIME DEDUCTIONS

History. The first good-time law in Arkansas appears to have been passed in 1867. This statute made it the duty of the Governor, when it appeared that the conduct of the prisoner had been satisfactory, to grant a deduction of not more than 2 days per month from the term of his imprison

30 Williams v. Brentz, 171 Ark. 367, 284 S. W. 56 (1926).

31 The Prison Labor Problem in Arkansas, a survey by the Prison Industries Reorganization Administration (1936) 35-36.

In 1899 this statute was revised into its present

form, providing for graduated deductions.2

By whom administered.-The granting of good-time deductions rests with the Governor, who acts upon the reports and recommendations of the superintendent of the penitentiary."

Persons eligible.-The deductions apply to "convicts confined in the penitentiary," whose conduct "has been exemplary and unexceptional for one whole year

Amount of deduction.-The allowances are graduated according to the length of the sentence. One month is granted for the first year, 2 for the second, 3 months for each year thereafter up to the tenth year, and 6 months for the tenth and each succeeding year. These deductions are cumulative; that is, on a 10-year sentence the prisoner would actually have to serve only 72 years.

Forfeiture.-Escape or attempt to escape forfeits all rights to the "commutation" accrued up to that time Breach of prison rules for which the prisoner is corrected three times entails a loss of 1 month or so much of each month as the keeper may recommend."

Restoration. There is no explicit provision relating to the restoration of credits forfeited because of misconduct. However, there seems to be no doubt that the Governor has the power to do so.

EXPIRATION OF SENTENCE

Formalities of release.-Upon release at expiration of sentence the prisoner is given a certificate of discharge showing that he is entitled to be at large.

Effect of release.-Discharge at the expiration of sentence, whether by operation of good time deductions or by actual service of the full period of confinement fixed by the court, operates as a full satisfaction of the judgment. However, the person is not restored to electoral privileges, since it is