may be prescribed by law; and, after conviction, to grant reprieves, paroles, commutations of sentence and pardons, except in cases of impeachment." 1 The pardoning power is confided exclusively to the executive, and cannot be exercised or limited by the legislature." However, the legislature may enact laws to render its exercise convenient and efficient. The legislature has enacted such provisions, providing, among other things, that the board may call upon any judge, solicitor, or other public officer of the State for information or recommendations which may seem necessary or desirable in the consideration of any application.* The statutes also provide that at the end of each fiscal year, the board is to make a written report to the Governor of all applications acted on by it and its recommendations in each case. The Governor is required by the constitution to communicate to the legislature at each session all remissions of fines and forfeitures, reprieves, commutations, paroles, and pardons granted by him, together with his reasons therefor." The constitution also establishes a board of pardons composed of the attorney general, secretary of state, and state auditor, "who shall meet on the call of the Governor and before whom shall be laid all recommendations and petitions for pardon, commutation or parole in cases of felony." The board is required to hear the petitions in open session and notify the Governor in writing of its decision, with 1 Ala. Const. art. V, § 124. The statute says he shall have this power "in all cases except treason and impeachment." Ala. Code Ann. (Michie, 1928) § 5127. But this statute was enacted under older constitutions which were similarly worded. The present constitution, adopted in 1901, eliminated treason as an exception, and so the Governor's pardoning power today undoubtedly extends to treason, the statute to the contrary notwithstanding. 'Haley v. Clark, 26 Ala. 439 (1855) (act to require a county treasurer to pay to sureties of a defendant the amount which they paid as his fine, held unconstitutional as invasion of the Governor's pardon power); State v. Stone, 224 Ala. 234, 139 So. 328 (1932) (semble). When a defendant is sentenced * Fuller v. State, 122 Ala. 32, 26 So. 146 (1898). Ala. Code Ann. (Michie, 1928) § 2780. for a term of 5 years or more, the presiding judge is required to submit to the Governor a statement, on forms provided by the board of pardons, setting forth the name of the defendant, the term of court at which tried, the offense, the aggravation or mitigation developed at the trial, and the proof in reference to his previous character. Id. § 5322. Id. § 2781. Ala. Const. art. V, § 124; Ala. Code Ann. (Michie, 1928) § 5127. 73115-39-VOL. I-5 the reasons therefor, within 60 days after the application is referred to it. Its recommendations, however, are of a purely advisory character. After the board has made its recommendation, or failed to do so for more than 60 days, the Governor may grant or refuse the commutation, parole, or pardon, as seems to him best for the public interest." In misdemeanor cases, it is specifically provided that the Governor may grant a pardon even without formal application being made. Persons eligible.-The constitution makes eligible for executive clemency all persons convicted of any crime except in cases of impeachment." Persons at liberty on temporary parole 10 and persons convicted of misdemeanor may receive a pardon with or without payment of court costs, in the discretion of the Governor.11 The executive pardon is the only remedy for a defendant, who, unattended by counsel, pleads guilty to the wrong indictment.12 Similarly, a pardon is the only redress where no record of the proceedings in the trial court is incorporated in the transcript on appeal, so that the appellate court cannot find the lower court in error in overruling the motion for a new trial. "To do so (i. e., grant relief) would be an assumption by this court of the pardoning powers." 18 13 "The power of the Governor to reprieve, commute, and pardon is limited to offenses for which there may be conviction and punishment." The nonpayment of taxes is not a criminal offense, and therefore, an act of the legislature absolving a taxpayer from liability for nonpayment is not an invasion of the pardon power.14 Procedure: Application.—The exercise of the pardoning power is subject to such "regulations as may be prescribed by law." The legislature has prescribed that any formal ap Ala. Const. art. V, § 124. Ala. Code Ann. (Michie, Supp. 1936) § 5133 (1). Ala. Const. art. V, § 124; Ala. Code Ann. (Michie, 1928) § 5127. Until 1901, treason was another exception. 10 See supra Parole. 11 Ala. Code Ann. (Michie, Supp. 1936) § 5133 (1). 12 Harper v. State, 18 Ala. App. 584, 93 So. 273 (1922). 13 Shaw v. State, 21 Ala. App. 387, 110 So. 168 (1926). 14 Mobile and Girard R. R. v. Peebles, 47 Ala. 317 (1872). plication for pardon be preceded by a 2 weeks' notice of the intention to request a pardon. This notice must be published in a newspaper in the county wherein the prisoner was convicted or resides. If no newspaper is published there, the notice must be posted at the courtroom door in such county or at three other public places therein. A copy of this notice and proof of the publication must accompany the application.15 These requirements are addressed to the applicant. The Governor if he chooses may, no doubt, act even where these requirements have not been met.16 Where a defendant is sentenced to death or imprisonment in the penitentiary, the presiding judge, if he is of the opinion that the defendant should be pardoned, may postpone execution of the sentence for such time as may appear necessary to obtain action by the Governor on an application for pardon.17 Procedure: Hearing.-The constitution requires the board to hear petitions in open session.18 Regular meetings are held monthly for hearing applications, but final action is not taken until some days after the hearing. It is the policy of the board not to grant special hearings except for reprieve, or commutation of death penalties or extraordinary emergencies. Delivery and acceptance.-In order to be complete, a pardon must, in contemplation of law, be delivered and accepted.1 Delivery of a pardon to the warden having custody of the pardoned prisoner has, however, been held constructive delivery to the prisoner. "Being an act of mere clemency, without conditions, the law presumes that it was accepted, in the absence of evidence showing the prisoner's dissent." 20 Conditional pardon.-"It is settled law that this grant (of power to grant pardons) includes power to grant conditional pardons, the condition to be either precedent or 15 Ala. Code Ann. (Michie, 1938) § 5128. 18 As to misdemeanors, the statutes specifically so provide. Ala. Code Ann. (Michie, Supp. 1936), § 5133 (1). 17 Id. (Michie, 1928) § 5321. 18 Ala. Const. art. V, § 124. 19 Ex parte Powell, 73 Ala. 517 (1883); Michael v. State, 40 Ala. 361 (1867) (failure to plead a pardon constitutes a waiver). 20 Ex parte Powell, 73 Ala. 517, 523 (1883). subsequent, and of any nature so long as it is not illegal, immoral, or impossible of performance; and that a breach of the condition avoids and annuls the pardon." "21 Commutation.-Under the constitution, the Governor has the broad power to grant "commutations of sentence." 21a It is provided by statute that he may commute a death sentence to imprisonment in the penitentiary, or to hard labor for the county, "for not less than 2 years." 22 Whether this limitation on the Governor's power to commute punishments is constitutional has not been decided. When sentence is commuted, the Governor certifies a statement of the commutation to the clerk of the court in which the conviction was had. The clerk is directed to enter the commutation of record at the next ensuing session under the direction of the presiding judge. The commuted sentence is then executed as if it had been rendered by the court.25 23 Revocation. The legislature may provide that on violation of the conditions, the person conditionally pardoned shall be considered an escaped convict and may be recommitted without a hearing.24 Effect of pardon.-By constitutional provision, in cases of felonies and offenses involving moral turpitude, a pardon does not relieve the person pardoned from civil and political disabilities, unless approved by the board of pardons and specifically expressed in the pardon.2 25 Where a person has been sentenced to fine and imprisonment, his pardon must specifically mention the fine to release him therefrom. Otherwise, the pardon will be construed to release him from the imprisonment only.26 A par 21 Fuller v. State, 122 Ala. 32, 37, 26 So. 146, 147 (1898). 21a Ala. Const. art. V, § 124. 22 Ala. Code Ann. (Michie, 1928) § 5129. 23 Id. 5130. The failure of the clerk to record the statement of commutation does not affect the validity or legality of the commutation or its admissibility as evidence. Johnson v. State, 183 Ala. 79, 63 So. 163 (1913). 24 Fuller v. State, 122 Ala. 32, 26 So. 146 (1898). Under 25 Ala. Const. art. V, § 124; Ala. Code Ann. (Michie, 1928) § 365. older constitutions, not containing this provision, the court held that a full pardon restored competency as a witness, though not so stated in the pardon. Yarborough v. State, 41 Ala. 405 (1868). 20 State v. Richardson, 18 Ala. 109 (1850). don for one offense does not operate as a discharge of other distinct offenses.27 Parole. The constitution of 1901 expressly includes in the Governor's pardoning power the power to grant paroles.28 Even before the adoption of the present constitution, when the Governor's power extended only to "reprieves, commutations, and pardons," it was held that parole "is in the nature of a conditional pardon and within the constitutional grant of the pardoning power to the Governor." 29 However, the Alamaba parole laws are discussed elsewhere.30 GOOD-TIME DEDUCTIONS History. As early as 1843 the Governor was authorized to remit 2 months from a year's sentence for the "encouragement of convicts to conduct themselves with industry and propriety." It was made the duty of the Governor to reduce the period of imprisonment whenever it appeared from the report of the warden that the prisoner's conduct was "exemplary and unexceptionable." Several decades later the Governor was authorized to deduct 2 months from a year's sentence whenever it appeared from the report of the board of convict inspectors that the prisoner's conduct was unexceptionable. The board consisted of a president and two other inspectors of convicts, one of whom was required to be a physician.3 In 1890 the amount of time by which the period of incarceration could be reduced for good conduct was extended on a scale graduated according to the length of the sentence. That scale is identical with the one now in operation. In 1923 the powers and duties of the board of convict inspectors were conferred on the newly created State board of prison administration which at that time consisted of "Hawkins v. State, 1 Port. (Ala.) 475 (1834). 28 Ala. Const. art. V, § 124. See also Ala. Code Ann. (Michie, 1928) § 5132 id. (Michie Supp. 1936) § 5133 (1). 20 Fuller v. State, 122 Ala. 32, 26 So. 146 (1898). See Parole, supra. 1 Clay's Digest (Ala. 1843) p. 406, § 67. 2 Ala. Laws 1882-83, p. 147. Ala. Laws 1894-95, p. 849. |