Attorney General: Honorable Lowell P. Weicker, Jr., Governor-State of Connecticut. 1992-020 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 27, 1992

Honorable Lowell P. Weicker, Jr.
Governor-State of Connecticut
State Capitol
Hartford, CT 06106

Dear Governor Weicker:

In your letter of May 12, 1992, you join with Howard G. lger, M.D., Chairman of the Board of Pardons, in seeking our opinion as to the respective authority of the Governor and the Board in the granting of pardons for persons sentenced to death. For the reasons discussed below, it is our opinion that the pardoning authority in I such "cases lies with the Board of Pardons.

Article Fourth, Sec. 13 of the Constitution of the State of Connecticut provides that:

The governor shall have power to grant reprieves after conviction, in all cases except those of impeachment, until the end of the next session of the general assembly, and no longer.

In Palka v. Walker, 124 Conn. 121, 124, 198 A.265 (1938), the Court reviewed this aspect of the Governor's power and concluded, in relevant part, that:

The thought in the minds of the makers of the Constitution in giving the Governor the power to grant reprieves until the end of the next session of the General Assembly was evidently that if, upon the facts before him, he believed that the General Assembly should have , an opportunity to determine whether to extend clemency to a prisoner beyond a merely temporary stay of execution, a reprieve might be granted until the Assembly had had an opportunity to act in the matter....A reprieve does no more than stay the execution of a sentence for a time; it is ordinarily an act of clemency extended to a prisoner in order to afford him an opportunity to procure some amelioration of the sentence which has been imposed upon him. Often the purpose is to enable him to take advantage of remedial measures which may result in his being pardoned of the offense of which he has been convicted, or in a commutation of sentence, or in an opportunity to present his case for review before an appellate tribunal or to secure a new trial. (Underlining added).

In contrast to the power to grant reprieve as provided for in Article Fourth, Sec. 13 of the Connecticut Constitution as construed by the Court in Palka, Conn. Gen. Stat. 18-26 provides, in part, that:

(a) Jurisdiction over the granting of, and the authority to grant, commutations Of punishment or releases, conditioned or absolute, in the case of any person convicted of any offense against the state and commutations from the penalty of death shall be vested in the board of pardons. (Underlining added).

In McLaughlin v. Bronson, 206 Conn. 267, 270-71 537 A.2d 1004 (1988), the court construed this statute to provide, in part, that:

Commutation of sentence is the substitution of a lesser punishment for that to which a person has been sentenced. Schick v. Reed , 419 U.S. 256, 273, 95 S. Ct. 379, 42 L. Ed. 2d 430, reh. denied, 420 U.S. 939, 95 S. Ct. 1150, 43 L. Ed. 2d 416 (1974) (Marshall, J., dissenting); Biddle v. Perovich, 274 U.S. 480. 483, 47 S. Ct. 664, 71 L. Ed. 1161 (1927); 59 Am. Jur. 2d, Pardon and Parole 5 (1987). Power to commute a sentence is part of the pardoning power, under which it may be exercised. 59 Am. Jur. 2d, Pardon and Parole 23 (1987). Ordinarily, the pardoning power resides in the executive. Dumschat v. Board of Pardons, 432 F. Sup. 1310, 1312 (D. Conn. 1977) (Dumschat I), aff'd, 593 F.2d 165 (2d Cir. 1979), remanded, 618 F.2d 216 (2d Cir. 1980), rev'd, 452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981). In Connecticut, the pardoning power is vested in the legislature; Palka v. Walker, 124 Conn. 121, 198 A. 265 (1938); which has delegated its exercise to the board of pardons. Dumschat v. Board of Pardons, 452 U.S. 458, 463, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981) ( Dumschat II). Granting of a commutation is an act of clemency. State v. Walters, 145 Conn. 60, 72-73, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45 (1958). Section 18-26 creates no right or entitlement that may be claimed by any prison inmate. Dumschat II, supra, 467. Furthermore, the statute vests in the board unfettered discretion in making its pardon and commutation decisions; it imposes no definitions, no criteria and no mandates giving rise to a duty to commute a sentence or grant a pardon, or creating a constitutional entitlement to an exercise of clemency. Id., 466. (Underlining added).

It is clear from reading and comparing the powers of the Governor and the Board of Pardons that the authority to permanently commute a death sentence lies with the latter. The authority of the Governor is limited "to grant[ing] reprieves after conviction . . . until the end of the next1 session of the General and no Assembly and no longer."

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Stephen J. O'Neill
Assistant Attorney General

RB/S.O'N/gab

cc: Howard G. Iger, M.D.


1 "The word 'next' in the constitutional provision does not refer to a session of the General Assembly in existence when I reprieve is granted but to one which begins thereafter." Palka, supra, at 124.


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