only which properly bear on the propriety of extending executive clemency." 17

The pardoning power is not a corrective judicial process to remedy a wrong. "It is, of course, not intended by the constitution that the pardoning power should review and correct the decisions of the courts. The fact of the defendant's guilt or innocence of the crime with which he is charged should be finally settled by the courts, when the evidence can be received and weighed under the well-established rules of law, and where it is supposed that the truth can be ascertained with as much certainty as human imperfection will admit." 18

The statutes provide that "any citizen of Nebraska and the applicant for clemency shall be given the right to appear and be heard." The board, however, determines by its own rules what evidence it will receive. All evidence submitted at the hearing must be made upon oath either by affidavit, deposition, or oral testimony. The presiding officer of the board has power to administer the oaths or affirmations.19

But "any person who shall knowingly submit any false affidavit or deposition to the board of pardons, or shall knowingly testify falsely upon any hearing of the board of pardons shall be guilty of perjury and may be imprisoned in the State penitentiary not exceeding 1 year or more than 5 years." 20

The board has power to subpoena witnesses from any part of the State, whenever the majority of the board shall so direct. Failure to obey the subpoena or testify at the hearing is subject to the same penalties as though the proceedings were by a district court. A report of the disobedience and proof of service is filed with the district court of the county which imposes the penalties.21

It is made unlawful for "any person at any time in any place, in any manner directly or indirectly to approach or

17 Neb. Const. (1920) art. IV, § 13; Neb. Comp. Stat. (1929) §§ 29-2606, 29-2612.

18 See Carlsen v. State, 129 Neb. 84, 94, 261 N. W. 339, 344 (1935) quoting from Evers v. State. 87 Neb. 721, 127 N. W. 1066 (1910).

19 Id.

20 Id.

statute.

29-2608, 29-2609, 29–2611.

29-2613. The "not exceeding 1 year" is an error in drafting of the

" Id. 29-2610.

try to approach, or to discuss or attempt to discuss with any member of the board of pardons any matters relating to any application for clemency that may be pending under the provisions of this act, or that may later become pending under the provisions of this act, except at the time set for formal hearing upon said application, and except that persons may communicate with a member of said board at the same member's request." The board takes advantage of this section to require paid attorneys to limit their activities to the regular hearings and to avoid undue pressure in certain cases.22

Although the prisoners must be called by the board and permitted to testify in their own behalf, they cannot be present at any other time during the hearing. Communications concerning any facts of the hearing are privileged and must not be divulged to the applicants.23

24

The board is empowered to fix any time for rehearing of an application in behalf of any person confined in a penal institution. It has ruled that no application for clemency will be reconsidered until after a year from denial of the first application.

At the conclusion of the hearing, the members of the board go into executive session and deliberate upon each application. The decision to grant or deny the application as determined by the majority vote, is entered of record in the minutes, with a statement by one or all of the majority members of the reasons for the action, if any is taken. Every majority member must certify to the correctness of the order and sign the record. Any dissenting member may incorporate in the permanent records of the case immediately following the majority decision of his dissenting opinion. It has been found that after discussion, the vote is invariably unanimous. The grant of clemency is made under the seal of the State countersigned by the secretary of State.25

22 Id. 29-2617. The penalty imposed for violation of this section is punishment by imprisonment in the penitentiary not exceeding 1 year or a fine of from $100 to $500.

The statutes provide for a reporter to make a complete transcript of all of the proceedings of the board as in the district court. All of the testimony, recommendations, reports of investigation, and other evidence considered by the board must be entered upon the record of the case as exhibits and the whole bound and filed in the form of a simple permanent record in the office of the secretary of the board.20 At present, the records are kept in the office of the chief State probation officer.

Revocation. The statutes make no express provision as to the revocation of conditional pardons. A provision of the indeterminate sentence law, however, makes an order passed by a majority of the board of pardons and certified by the presiding officer sufficient warrant for the retaking of “any inmate released under the orders of the board." 27

Reprieve by Governor.-The Governor is empowered to grant "respites or reprieves in all cases of conviction for offenses against the laws of the State, except treason and cases of impeachment, but such respites or reprieves shall not extend beyond the next meeting of the board of pardons, and in no case for a greater period than 30 days." 28 He may, however, grant successive reprieves which in the aggregate exceed 30 days.20

If in case of any reprieve the board of pardons deems it expedient and proper to confine persons so reprieved in the penitentiary and it is so specified in the warrant, the board may do so.80

Parole. The administration of the parole laws is also in the hands of the board of pardons, so that all release procedures are handled through this one board. The details of the parole procedure are treated elsewhere.

Commutation.-The most frequent use of commutation is in connection with parole. Since the same authority administers both parole and pardon, it is not uncommon for the board, where it wishes to parole a life prisoner or one who

"Neb. Comp. Stat. (1929) § 29-2624.

Neb. Const. art. IV, § 13; Neb. Comp. Stat. (1929) § 29-2630.

» Simmons v. Fenton, 113 Neb. 768, 205 N. W. 296 (1925).

"Neb. Comp. Stat. (1929) § 29–2632.

has not served his minimum sentence (neither one of whom is eligible under the parole law), to enter an order consisting of both a commutation and parole. Thus by use of the commutation power the board may parole a prisoner sooner than would otherwise be the case.

Effect of pardon.-Persons deemed incompetent, by reason of conviction and sentence for felony, to be an elector or juror, or to hold any office of honor, trust, or profit within the State, are restored to their civil rights and privileges by a general pardon from the Governor under his hand and seal of the State.31

Similarly effective is a general pardon from the Governor of another State, agreeable to the laws thereof, to a person actually imprisoned in the penitentiary of that State for a crime which, by the laws of Nebraska, is punishable by imprisonment in the penitentiary.

82

However, a more general method of restoring the pris oner's civil rights is now in use. The law provides that "whenever any convict shall have completed the lawful requirements of his sentence, the board of pardons upon receiving certificate of good conduct from the warden shall immediately issue a warrant for the discharge of said convict, and such warrant shall in all cases restore the prisoner's civil rights the same as though a pardon had been issued.” 33 A general pardon does not release a person convicted of felony from the costs of his conviction, unless otherwise ordered by the Governor."

A pardon granted after a divorce has been secured on the ground that one of the parties has been sentenced to imprisonment for 3 years or more does not restore the party to his marital rights. Nor does a pardon granted after a divorce is secured on the ground that the spouse is sentenced to imprisonment for life "affect a decree of divorce for that cause rendered."

9 85

a1 Id. 29–112. Since the Governor no longer possesses the power to pardon, this section would probably be construed to refer to a pardon by the board.

83 Id. 29-113.

33 Id. § 29-2634; see Furley v. State, 74 Neb. 471, 476, 104 N. W. 934 (1905). Neb. Comp. Stat. (1929) § 29-112. The reference to the Governor would probably be construed under the present law to mean the board of pardons, Id. 42-301.

GOOD-TIME DEDUCTIONS

History. The first good-time statute appears in the General Statutes of 1873.1 This was repealed in 1875 and succeeded by an act which liberalized the amount of deduction granted. The act of 1875 has remained in effect without substantial change to the present time. In 1915 was added the provision authorizing additional good-time deductions for outside trusties and prisoners attending school.3

4

By whom administered.-The statute regarding forfeiture of the statutory good time refers to the "warden and inspectors" and the statute on extra good time authorizes the board of commissioners of State institutions to grant such deductions, but in practice the warden administers both.

5

The judges of the district courts are required to make rules for county workhouses, including rules for rewarding prisoners for good behavior and willingness and industry, by deduction of time from the sentence."

Persons eligible.-Good-time deductions are available to all inmates of the penitentiary or boys' reformatory who have no infractions of prison rules recorded against them and who faithfully perform their assigned duties in an orderly and peaceable manner."

When a sentence is commuted, the new sentence is treated precisely as if it had been imposed by the court in the first instance, and good-time deduction is allowed on such a commuted sentence. But where the order of commutation called for "9 years actual time," the court will give full effect to the order by requiring 9 years service without any reduction. Amount of deduction.—The statute provides for reduction of sentence to the extent of 2 months the first year, 2 months the second year, 3 months the third year, and 4 months the

1 Neb. Gen. Stat. (1873) p. 848, 569. This act provided for a deduction of 1 month for each of the first 2 years, 2 months each on the third to the fifth years, 3 months on the sixth to tenth years and 4 months on each remaining year.