Indiana governor&#39;s pardon powers Can the governor of Indiana issue preemptive pardons like the POTUS can? If so, what is the source of law that expressly confirms this, or at least leaves little doubt that this is within the governor's authority (e.g. judicial interpretation, statute, commentary etc.); have there been any instances in the past of it happening; and is the scope of such pardons limited in any way? Thanks in advance for any answers.
The Indiana constitution is phrased differently to the US constitution in such a way to exclude pre-emptive pardons: (Indiana) The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment (US constitution) he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. (my emphasis) The Indiana constitution explicitly states that the Governor may grant pardons after conviction and does not give the Governor the power to grant pardons before conviction. By contrast, the Supreme court has judged that the President may issue pardons after commission, that is after the offence has been committed, and potentially before the arrest, trial, conviction or punishment. They can't issue pardons for crimes not yet committed. The scope of pardons issued by the Governor is limited; this power is subject to regulation by law issued by the Legislature, and (if there is no regulation giving sole power of pardon to the president) the Legislature may form a council to review pardons. The council's advice and consent must be sought. In fact, the Legislature appoints the Parole Board to this role. So the Parole Board gives advice and consent to pardons issued by the Governor. In practice, therefore, the Parole Board makes these decisions, as Governors rarely refuse pardons recommended by the Board. Generally, though, pardons are rare, Mike Pence granted only three during his tenure as Governor. References: Constituion of Indiana Guide to pardons in Indiana
All ex post facto laws are unconstitutional in the United States. But, not all retroactive laws are unconstitutional in the United States. An ex post facto law is basically a law that retroactively makes conduct illegal or punishes it more severely than it was punished at the time if it was already illegal. By way of example, tax legislation is often constitutionally retroactive, and laws that retroactively make the punishments for acts that are crimes at the time more lenient (or retroactively grant amnesty for previously illegal conduct) are legal. I strongly suspect, but do not know for certain, that India's constitutional law makes the same distinction that U.S. constitutional law does in this regard.
In many US states (and in the UK), statutory rape is a strict liability offense. This means that there is no intent requirement at all; the only allowable defenses are those that negate the actual act (there was no sex, the person was of age, or sometimes that the action was not a conscious or voluntary action), it falls within a statutory exception to the crime, or there is an applicable defense that has nothing to do with intent. Many general defenses do not apply to strict liability crimes; in particular, "I thought X when Y was true" tries to show there was to intent to commit the crime, which is irrelevant. In Michigan (where the crime took place), statutory rape is evidently such an offense. That throws some standard defenses into doubt, because anything based on negating criminal intent doesn't matter. However, Michigan does specifically say that it is not criminal to have sex with a person under 16 if they are your legal spouse; this is a very common exception to statutory rape laws. So, marriage is a way to not risk jail for statutory rape in Michigan. However, things do vary by state. In Indiana, it is specifically a defense that the defendant had a reasonable belief that the victim was over the age of consent (unless it was a forcible rape).
There are 2 separate issues here: what happens to such a President and what happens to the person who has been pardoned. What happens to the person who has been pardoned? While at least one attempt at reversing a pardon has been discussed in recent history (Clinton's pardon of Mark Rich), there is no case of a pardon that has been reversed without the wishes of the person who was to be pardoned. There were 2 SCOTUS cases which decided that a pardon is a form of clemency rather than an act of overturning a judgement. United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833) established that if a person does not accept a conditional pardon, then it is not in effect. Burdick v. United States, 236 U.S. 79 (1915) decided that if a person does not accept an unconditional pardon, then the pardon is not in effect. Burdick specifically did not want to accept the pardon because his contention was that accepting it would be tantamount to admitting guilt and would strip him of his 5th amendment right to not incriminate himself. There is very little case law surrounding the understanding of the power to pardon, so it may help to simply list the relevant instances of considerations and available opinions. Both (fmr President) Nixon and (fmr Sec of Defense) Weinberger were pardoned without ever being tried for the crimes for which they were pardoned. Even after Burdick v US, the issue of whether a pardon does amount to a formal admission of guilt remains controversial (i.e., not fully settled legally). In Nixon v US (not to be confused with the more famous US v Nixon), the court referred to Black's Law dictionary, rather than to the previous 2 opinions, to state that a pardon does not overturn a &quot;guilty&quot; judgement but rather provides a clemency. It is established that all punishments (jail time or fines), that one would receive for the crime, would not be applied if the person is pardoned. However, it is not established, for example, if the the presumption of guilt that goes with the accepting of a pardon counts as a &quot;strike&quot; for the purposes of &quot;3 strike&quot; laws (because of no precedent); would result in a requirement to continue registering as a sex offender in case the crime was a sex crime (because of no precedent). The current DOJ FAQ states that a pardon removes &quot;civil disabilities&quot; such as restrictions on the right to vote hold state or local office sit on a jury It is widely claimed that a President cannot pardon anyone for state crimes. However, as far as I know, it's never been attempted. The current interpretation of the US Constitution's Supremacy Clause is that states cannot interfere with the proceedings of the Federal government. So should a President attempt to pardon anyone for a state crime, it would (almost certainly) result in a court challenge. Any claims, that the outcome of such a challenge would result one way or another, are (by definition) nothing but a speculation. Further, if a pardon does remove the civil disability of not being able to hold a state office, then it does remove punitive consequences of some states' laws. Which may potentially bolster the claim that a President may pardon a state crime. But again, this is a pure speculation and there are plenty of good arguments to be made against such a possibility. What happens to the President who has taken a bribe? That having been said, no official act performed by a President is automatically reversed if the act is found to have been done corruptly (in exchange for a bribe or any other personal consideration contravening his oath of office). However, the Congress has the enumerated power to impeach a President and remove him from the office if he is found to have taken a bribe. Removing him from the office does not, in itself, reverse any of his official actions (including the ones performed corruptly). The Congress, however, does not have the power to reverse pardons. Nor can it create such a power with a legislature. For Congress to gain such a power would require a constitutional amendment.
Can Congress essentially pardon a violation of law through legislation? Yes. Congress has the power to retroactivity reduce the sentence for a crime for which someone has been sentenced. This was done most recently in the Fair Sentencing Act of 2010 that reduced excessive penalties for crack cocaine relative to powder cocaine. In the same way, when the death penalty is legislatively repealed in a state, the death sentences of the handful of people on death row at the time is often commuted legislatively. While Congress cannot impose criminal penalties on someone legislatively, which is a Bill of Attainder and constitutionally prohibited, it can single out people for special treatment in a private bill, which is a constitutional exercise of legislative power at the federal level (not every state allows private bills to be enacted due to Progressive era reforms to state constitutions). For example, private bills often eliminate the collateral effects of a criminal conviction upon a person, there is even a standard procedure for doing so, which is functionally equivalent to a Presidential pardon of the crime for that purposes (the vast majority of Presidential pardons are issued after the person convicted has served the sentence for the crime). A private bill cannot impair contract or property rights, which would be a prohibited ex post facto law. But no one other than the federal government has a legally protected interest in keeping someone incarcerated or otherwise punishing them for a crime. Crimes are prosecuted in the name of the People and victims of crimes do not have legal rights in those proceedings except as created by statute. So, this would not be an ex post facto bill or a taking governed by the Fifth Amendment for takings of property interests. And, Congress may, by legislation, determine what the federal government will do in essentially all cases where it is not expressly prohibited from doing so (some argue that there is a minimum of federal authority vested exclusively in the President in the area of foreign affairs and military affairs, but that exclusivity of power does not extend to domestic criminal justice). Basically, anything that Congress could do for everyone via a public bill, it can do for someone in particular via a private bill, unless a specific constitutional prohibition applies, and there is no such prohibition when it comes to relieving someone from a sentence or the collateral effects of a criminal conviction prospectively via a private bill. This isn't exactly equivalent to a Presidential pardon or commutation, but it is very close to one in practical effect. For a fuller, but somewhat outdated treatment of the issue, you can read this 1939 article in the California Law Review which acknowledged that legislative pardons were possible under existing law. This said, government prosecutors routinely fervently oppose any retroactive criminal legislation that reduces punishment, particularly via private laws (although some countries, such as France, have constitutional requirements to retroactively reduce the sentences of anyone currently serving time for a crime whose punishment is legislatively reduced prospectively). Private bills that constitute legislative pardons are very rare. A 2011 law review article recounts how the tool of the legislative pardon (in parallel with the executive pardon which is also used much less frequency) has fallen into disuse. Part of the decline is due to the adoption of the right to appeal from a trial court criminal convictions which did not exist in the federal system until the 1890s. Until then, the only judicial relief available from a federal criminal conviction was via a writ of habeas corpus, and that was available only on very limited grounds such as a lack of jurisdiction to conduct the trial, or the non-existence of the crime of conviction. Conviction by a jury in a court with jurisdiction of a constitutionally permissible crime was an absolute defense to the extent of the sentence imposed to a habeas corpus petition at that time. (As a footnote, the term "private bill" can be confusing. In many governments with a parliamentary system, a "private bill" means one sponsored by an individual legislator rather than the prime minister and his or her cabinet. But, in U.S. terminology, a "private bill" refers to a bill with an effect limited to one person or a small number of persons who are either identified by name or by a very narrowly defined situation.)
Yes, they can be sued civilly Or, for that matter, be prosecuted by another jurisdiction- pardons only work within the jurisdiction that issued them. In a common law jurisdiction, the pardon cannot be used as evidence Nor, for that matter, can a criminal conviction. This is partly because the elements that need to be proved for the civil wrong won’t correspond to the elements of the crime. But mostly, because it just isn’t allowed.
States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates. For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts).
Yes, here is an example. Gerald Ford pardoned Richard Nixon: Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974. But he was not charged with anything.