Pardons: A state law perspective

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The Constitutional authority granting presidents unlimited, unfettered power to pardon people for federal offenses or furnish other relief from criminal convictions, such as commutation of sentences, has raised many eyebrows and prompted some to eye other ways of handling these types of dispositions.

The current concerns have been fueled by the thousands — more than 3,000 — of wide-ranging clemency directives issued by former President Joe Biden and President Donald Trump over a span of less than two months, encompassing Biden family members, white collar offenders, murderers and other violent lawbreakers, those convicted of major and lesser drug offenses, targets of potential retribution by President Trump and capped off, of course, by the more than 1,500 Jan. 6 rioters.

Collectively, the pair of presidents has pardoned or commuted nearly 10,000 people (Biden with 8,064, including some 6,500 marijuana offenders; Trump with 1,740) with more assuredly to coming during the present administration. That’s 2 ½ times the number issued by Franklin Delano Roosevelt in his 12-plus years in office (3,678) and even exceeds the 7,654, of Andrew Johnson’s four-year post-Civil War term, mostly former Confederate officials and military members.

The continuing and growing concerns about the limitless, unilateral presidential pardon power, enshrined in Article II, Section 2, of the U.S. Constitution have led to cries about “abuses” and calls for Constitutional restraining amendments. But it’s hard to abuse an unlimited authorization. That boundless power highlights the differences between federal and state clemency procedures.

The relative ease with which the pardon power can be — and has been — executed at the presidential level contrasts with the process of clemency in Minnesota.

Various formats are used for clemency in the states, ranging from the federal unilateral executive authority model to specialized bodies and commissions and other arrangements.

In Minnesota, the process of issuing pardons and commutations is handled through a Board of Pardons, comprised of the governor, attorney general and chief of the state Supreme Court. A statute enacted in 1897 required unanimity among the three members of the board, following its creation a year earlier by constitutional amendment. Before then, the governor alone exercised clemency authority.

The referendum that approved the constitutional amendment, one of some 121 that have been added to the state Constitution since its inception in 1857, modified the prior practice allowing the governor, like the president, unconditional and unilateral power to pardon. The statute replaced it with the three-member board, without specifying the voting requirements for the body.

The statute imposing the unanimity requirement was the subject of litigation, first in Ramsey County District Court, where Judge Laura Nelson deemed the measure unconstitutional. But the state Supreme Court overturned that decision in 2022 in the case Shefa v. Ellison, in which Gov. Tim Walz and Attorney General Keith Ellison wanted to pardon an immigrant woman victim of domestic abuse in order to avoid her prospective deportation after she killed her spouse, but the third member of the pardon panel, Chief Justice Lorie Gildea, did not.

The justices, with the chief removing herself from the case, rejected the governor’s argument that the three-member unanimity requirement infringed the constitutional provision, which is silent on that issue, and impermissibly gives each board member a “unilateral veto.” The court reasoned that the language and history of the statute mandates unanimity.

That alignment, which caused some impasse in the past, as in the Shefa case, is likely to be alleviated over the next couple of years with Chief Justice Natalie Hudson, a Walz appointee to the position, joining the governor and Attorney General Ellison on the panel.

There is one common feature to both the federal and Minnesota provisions. They expressly do not extend to one type of offense: impeachment.

But the differences between the two structures greatly outweigh that similarity, and those who have experienced the recent flurry of Federal clemencies can be gratified for the dichotomy that facilitated them now being relieved of criminality and released from confinement.

Marshall H. Tanick is a Twin Cities Constitutional and employment law attorney.