Carolina Curious: Does The Governor's Pardon Power Undermine The Judicial System?

Carolina Curious: Does The Governor's Pardon Power Undermine The Judicial System?

4:39pm Aug 29, 2017
The President of the United States and governors have pardon power. It's more commonly used in some states, but experts say pardons are rarely granted in North Carolina. (Associated Press photo, photographer Gerry Broome)

For the latest in our Carolina Curious series, we’re taking a closer look at a major power the governor of North Carolina has. Listener Leigh Leverenz has been wondering about this:

I’m curious about the fact that our governor has the ability to pardon individuals who have gone through our well-developed judicial system and can set them free.

So, does the pardon process undermine the state’s judicial system? WFDD’s Keri Brown and Sean Bueter did some digging to find the answer to that question.

North Carolina’s top executive is Governor Roy Cooper. And he has a decent amount of power. He can appoint executive branch officials, some judges, and members of boards and commissions. The governor can also veto legislation.

And one of the most controversial things he can do is grant clemency.

Clemency means showing leniency or mercy. It’s a way to tamp down the harshness of a punishment given to a prisoner.

The governor can do this for all sorts of offenses, including murder. And in some cases, it can mean the difference between life and death. One way to offer clemency is by reducing or ending a prison sentence. But today, we’re talking specifically about pardons.

That’s when a governor officially forgives a person for a crime.

Leverenz says it doesn’t seem right that one individual has the power to wipe the slate clean.

When one person comes up and overrides all of that, to me, it’s very demeaning to the whole judicial system. It doesn’t seem very democratic.

Types of pardons:

Let’s break this down. In North Carolina, we have three types of pardons. The first one is also the most requested: a pardon of forgiveness.

Elon law professor Steven Friedland says this type of pardon can help people regain their footing in society.

“It can be made with certain conditions,” says Friedland. “A pardon of forgiveness is helpful if someone is seeking future employment and they can go with the pardon to show [that] the state has forgiven that person of the conviction.”

Up next: the pardon of innocence. Friedland says this can happen after new evidence like DNA is found in a case.

“This is when an individual has been convicted and the charges are dismissed and there is a showing of innocence,” says Friedland. “This is when a person can seek monetary compensation for being wrongfully convicted.”

When you’re convicted of a crime, you lose certain rights. That leads to the third type of pardon: an unconditional one. This is done primarily to restore a person’s right to own a gun.

On where this executive power comes from:

Bob Orr, a former justice on the North Carolina Supreme Court and professor with UNC School of Law, says pardons have deep roots in North Carolina.

“This particular power has been in the North Carolina Constitution since the very beginning in December 1776 when the first constitution was adopted shortly after the Declaration of Independence,” says Orr.

So pardons have been around for a while. And whether a governor uses them is a very personal decision. They’re common in some states, but Orr says, not so in North Carolina.

“It’s a power that is only rarely used and it tends to come, at least in the context of pardons, they tend to come when a governor is leaving office,” Orr says.

Most recently, former Gov. Pat McCrory issued eight pardons before leaving office.

Legal experts say they come at the end of a term because political backlash can be severe if the person who is pardoned reoffends. And they say in some cases, pardons are granted as political favors.

It’s important to note that a pardon does not expunge or erase a criminal record, but a person who is granted a pardon of innocence is allowed to petition for this under North Carolina law.

Where it leaves the judicial process:

That still leaves the question, does the power to pardon really undermine the state’s judicial process? Elon law professor Steven Friedland says he doesn’t think so.

"What you are seeing is checks and balances,” says Friedland. “When a jury finds someone guilty, they have done their work, their process but then there are parole boards, for example, that determine whether this person should be released at particular times. This pardon power also is another check and balance on convictions, so is habeas corpus. There are lots of checks and balances all the way through. We want to ensure accuracy and also over time things change.”

Since 2001, there have been 29 pardons granted in North Carolina, according to the governor’s office.

And if you’re curious, the most common type given during that period was the pardon of innocence.

*Follow WFDD's Keri Brown on Twitter @kerib_news

 
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