Gubernatorial Pardons to Defeat Deportation vs. State 'Take Care' Requirements

By Dan Cadman on August 9, 2019

I recently addressed the fact that Attorney General William Barr had certified to himself a case involving reduction of a sentence by a state judge who had done so for the clear purpose of defeating the immigration laws. (See here and here.) The post-facto reduction of a sentence, occurring significantly after conviction and the original passing of sentence, was designed to provide an "escape chute" for an alien whose conviction and initial sentence rendered him removable and ineligible for relief.

I mentioned in those posts that this phenomenon has increased in frequency, but that it doesn't end there: State governors are engaged in the same kind of activity with respect to commutations of sentences and even pardons, and I expressed the hope that Barr might turn his legal eye to these matters as well.

It is a long-established principle that chief executives — presidents and governors — have the unfettered power to pardon. This sometimes leads to scurrilous exercises of that power, such as when President Bill Clinton pardoned fugitive financier Marc Rich in the hours just before he departed the White House.

The question of the reach of a pardon is somewhat more nuanced, however, when a state executive issues it for the primary purpose of defeating federal deportation laws. Should it be allowed to have effect? The question is particularly pressing when the happy recipients of that pardon have engaged in crimes of moral turpitude: killing a pedestrian while driving under the influence of drugs or alcohol; trafficking in opiates and other narcotics; child molestation; or assault with a deadly weapon, for example. All of these crimes have figured in past gubernatorial pardons of aliens.

It may be that AG Barr doesn't wish to walk into the legal thicket of taking on pardons using his certification power, although one would hope that he would at least take on commutations of sentences in the same spirit as the resentencing of alien felons. Certainly to question the pardon power would set off a battle royale in federal courtrooms.

But attorney general certifications aren't the only remedy to governors' overreach. Many state constitutions have the equivalent of the U.S. Constitution's Article II, Section 3 "Take Care" clause, which requires the president to ensure that the laws are faithfully executed. The people of states where governors — such as those in California, New York, Washington State, and elsewhere — are exercising their pardon power to undo the strings of their own criminal justice systems simply because they disagree with the workings of federal law, have to ask themselves whether their governors are, in fact, "taking care" that the laws are duly executed.

Short of impeachment proceedings (doubtful in states where legislative majorities and the governor share the same party), concerned voters' institution of a recall petition might focus enough of a spotlight on the practice to make thinking people, including moderates of the same party, ask whether a governor's exercise of pardon and commutations in such cases is appropriate or wise.