The power to pardon in Minnesota should be the governor’s

The executive pardon power has existed from the very beginning of our republic and from the beginning of our state, too. But executive pardons are much older than that; they were once called a sovereign’s “prerogative of mercy.” According to sources, it was first used by King Ine of Wessex in the seventh century. Alexander Hamilton argued – successfully – for the inclusion of a plenary pardon power at the Constitutional Convention.

The first presidential amnesty (pardons granted to multiple people or a class of people) was granted by President George Washington to pardon participants in the Pennsylvania’s Whiskey Rebellion (the Whiskey Tax was an effort to pay the federal government’s Revolutionary War debt on the backs of whiskey distillers, rather like today’s enthusiasm for legalizing cannabis in order to tax it); Thomas Jefferson granted amnesty to any citizen convicted of a crime under the Alien and Sedition Acts.

The federal pardon power has suffered serious indignity recently, although even there much good was done, including pardons and commutations of many low-level drug offenders serving absurdly long sentences. The indignities shouldn’t distract us from a regard for its ancient purpose and the value of the prerogative of mercy in Minnesota.

Under the U.S. Constitution, the pardon power for federal crimes is vested in the president, while it is claimed that in Minnesota the governor’s pardon power for state crimes is encumbered by a veto by either the attorney general or the chief justice of the Minnesota Supreme Court. The issue is the subject of a lawsuit, one of first impression, that was heard in Ramsey County District Court on Jan. 20. A decision is pending.

Minnesota’s Board of Pardons

In 1897, an amendment to the Minnesota Constitution, adopted by a voter referendum in 1896, provided for a Board of Pardons in Minnesota; before that the Constitution referred to the governor only. The new language is as follows, found in Article 5, Section 7 of the Constitution (the article creating the office of governor and describing the power of the office) and not in the articles creating the Legislature or the judiciary:

Board of pardons. The governor, the attorney general and the chief justice of the supreme court constitute a board of pardons. Its powers and duties shall be defined and regulated by law. The governor in conjunction with the board of pardons has power to grant reprieves and pardons after conviction for an offense against the state except in cases of impeachment.

In 1905  the Legislature passed a law that Pardon Board decisions to grant a pardon or clemency had to be unanimous. That has now been challenged in a suit: Amreya Rahmeto Shefa v. Attorney General Keith Ellison, Governor Tim Walz, and Chief Justice Lori Gildea.

In the briefest outline, Shefa argues that Minn. Stat. § 638.02 subd. 1, is unconstitutional because the language of the Constitution does not require unanimity; in fact, it describes the attorney general and the chief justice has having a subordinate, advisory role. Tellingly, the language uses the singular verb “has,” as in “the governor has,” not “the governor and the pardon board have.” If the constitutional amendment had been intended to require unanimity, it would have been surpassingly simple to write it that way. It is beyond the power of the Legislature to do something that the Constitution does not authorize.

It is also argued by Shefa’s lawyers that the statute adopted by the Legislature is an invasion of the authority of the governor to exercise his prerogative of mercy. In other words, the statute is a breach of the separation of powers — required by the Minnesota Constitution — by both the Legislature and the chief justice. Related to this, I think, is that both the attorney general, and especially the chief justice, have a conflict of interest in sitting on a pardon board.

The attorney general is the chief law enforcement officer in Minnesota, and the chief justice is the top jurist in the state. Their respective offices sit atop the two instruments that try and convict people in the first place. Prosecutors and judges always think they did a good job. But pardons, those prerogatives of mercy, exist because that isn’t always true, and because sometimes the law isn’t fair, or it’s unfairly applied.

Pardons in Anglo-American law have existed for 1,400 years and they’ve always been the sovereign, or the president, or the governor, reaching down, outside of the prosecutorial and judicial systems, and saying, “We forgive you.” And I think that is how it should be.

Amreya Rahmeto Shefa’s suit

Some of you may recall Shefa’s case. Here are the opening paragraphs of her lawyers’ brief in support of her motion for summary judgment in the case:

In 2006, Habibi Tesema—a Minnesota resident—traveled to Ethiopia to visit his relatives and in search of a bride. He found Plaintiff Amreya Shefa. Tesema married Shefa and agreed to bring her to the United States, but only once she had given birth to three children. Six years later, Shefa had only provided two children (following Tesema’s infrequent visits aimed at that result), but he nevertheless finally agreed to bring her to live with him in Minnesota.

It was only then that Shefa learned she was no wife, but a sex slave. Tesema raped her [and let his friends do it, too, ed.], beat her, and abused her—every single day—for the year-and-a-half that followed. In December 2013, in the midst of being raped yet again, Shefa defended herself and killed Tesema. Because the court concluded Shefa had exceeded the force necessary to defend herself, however, she was convicted [in a bench trial with a judge sitting as trier of fact, ed.] of first degree manslaughter and served five years in prison. Given that conviction, Shefa lost custody of her two children and ICE charged her as removable. She now faces deportation to Ethiopia, where Tesema’s relatives wait to honor a blood oath to kill her if she ever returns (under the local custom—an eye for an eye).

These are part of a stipulated fact record.

After her petition hearing at the Board of Pardons, members Tim Walz and Keith Ellison would have granted the pardon; Chief Justice Lori Gildea said, even in advance of the hearing, that she wouldn’t grant it. This lawsuit is the result of the Pardon Board action.

The quality of mercy has fallen on hard times in Minnesota, as outlined in detail in a July, 2015 story in MinnPost. The Shefa case is Exhibit A in why the judiciary, especially, ought not to be involved in pardon decisions.

Alexander Hamilton argued in the Constitutional Convention and in the Federalist Papers that the pardon power should only be vested in the chief executive.

Professor Mark Osler of the St. Thomas University Law School, a nationally recognized leader and expert on issues of executive clemency, had this observation about Hamilton’s thinking:

Alexander Hamilton was right in Federalist 74 when he said in advocating for the pardon power that “a single man” is best positioned to decide clemency, as one person is the best vessel for decisions of the conscience. Requiring that one decider to consult others doesn’t violate Hamilton’s wisdom; giving others a veto does.

Comparing the Shefa case with that of Myon Burrell

Contrast the handling of the Shefa pardon petition with that of Myon Burrell, who was recently granted clemency, after serving 18 years for a murder that he maintains he didn’t commit. In Burrell’s Pardon Board hearing, Chief Justice Gildea recused herself because she worked for the Hennepin County Attorney’s office at the time of the Burrell prosecutions (he was tried twice). The conflict of interest jumps out at you in the Burrell case, but it’s there any time the chief justice or the attorney general vetoes a pardon.

I believe that Shefa’s lawsuit has merit; I hope it succeeds. The governor does, too, because notwithstanding being a defendant, he has filed a brief in support of Shefa’s suit.

Steve Timmer is a retired Twin Cities lawyer. His twitter handle is @stevetimmer.

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CORRECTION: An earlier version of this piece had 1941 as the first time the Legislature required Board of Pardons decisions to be unanimous. However, laws enacted in 1905 included a requirement for unanimity.