Bulletin No. 17
Function of the
Pardon Board as a Part
of Our Legal
BY FORMER ATTORNEY G (NERAL
FRED H. DAVI't
STATE OF FLORIDA
DEPARTMENT OF AGRICUTI,TUIRE
NATHAN MAYO, Commissioner
\rr ir.ft I',int r, T iIha .-., t..frld
FUNCTION OF THE PARDON BOARD AS A PART OF
OUR LEGAL SYSTEM
BY FORMER ATTORNEY GENERAL IFRED II. DAVIS
'Setcion 12 of Article IV of the Constitution of the
State of Florida provides that the Governor, Secretary of
State. Comptroller. Attorney General and Commissioner
of Agriculture. or a majority of them, of which the
Governor shall be one, may upon such conditions and
with such limitations and restrictions as they may deem
proper. remit fines and forfeitures, commute punishment,
and grant pardons after conviction in all cases except
treason and impeachment, subject to such regulations as
may be prescribed by law relative to the manner of apply-
ing for pardons.
Originally a pardon was considered as an act of grace.
It proceeded from the king as supreme ruler of the State.
and its effect was to exempt the individual on whom it
was bestowed from the punishment which the law in-
flicted for a crime he had committed against the
Considered strictly as an act of grace only, every par-
don granted to the guilty is in derogation of the law.
because under this theory if the pardon be equitable to
give. the law whose effect it overrules must be bad. It
has been stated, on the other hand, that as human actions
are necessarily imperfect, so pardoning power must be
vested somewhere, in order to prevent injustice when it
is ascertained that an otherwise irredressible error has
been committed in rendering judgment in special cases.
It has been assumed that because the last stated con-
clusion is true, that the only justifiable right itself to
pardon must be predicated upon a legal finding by the
pardoning authority that some error has actually been
committed in convicting the accused and that in the
absence of unrighteous conviction of the convict in the
first instance that he should.never be pardoned at all, be-
cause to do so would discredit the authority of the Courts
which convicted him.
The reasoning upon which such an assertion is taken
for granted is the premise that since the administration
of the law is ordinarily perfect, pardons must necessarily
do violence to the law.
So it is contended that pardons ought to be discouraged
altogether, or at least most narrowly restricted to those
few and exceptional cases where conviction must be set
aside, not as an act of clemency, but because of subse-
quently established proof of innocence, which was not
revealed to the convicting court.
It is pertinent, therefore, to determine whether or not
the right of pardon in Florida, vested in the Governor
together with his board of Iardons, is, under our Amer-
ican system of constitutional law. still considered to be a
mere act of grace such as was the pardoning power of
the King under the common law of England, or whether
it is a constitutional function expressly granted and pre-
served in the organic law itself, resting on some broader
and more important constitutional consideration than
originally applied to the King.
In this connection it will be noted that the Constitution
does not provide that the pardoning power in Florida
shall be exercised directly by the sovereign representa-
tive. else it would be the legislature as the repository of
the sovereign power of the State and not the Governor
and members of his cabinet, who would be vested with
the authority to grant pardons.
So it is only in cases of treason and impeachment that
our constitutional system contemplates the exercise of the
pardon power directly as an act of grace by the sovereign
power of the State. Power to pardon for ordinary of-
fenses rests upon a different principle.
Hence it is obvious that the pardon board must be con-
sidered as a part of our legal system provided by the
Constitution for the administration of justice, and is to be
regarded as much so as the courts themselves are to be
considered as a part of our legal system.
The power of pardon vested in the Board can only be
exercised through the action of a majority decision of five
state officers acting together in committee. This circum-
stance suggests the idea of hearing and judgment by the
board upon consideration of public welfare as a condition
precedent to its exercise. It is plain that this pardon
power when exerted is not to be taken as the casual
indulgence of individuals on the Pardon Board possessing
power of a personal nature, to award relief from im-
prisonment according to personal caprice as a mere act
of private grace, such as would apply to a King exer-
cising like power. but as a constitutional act, by consti-
tutional act. by constitutional officers, performed in a
constitutional manner, to accomplish a constitutional pur-
pose in the administration of la-w. L-'
This theory of the power to pardon as a constitutional
function under a constitutional system of government is
adequately supported by the observations of the Supreme
Court of the United States in an opinion written by Justice
Oliver Wendell Holmes of that Court (Biddle vs. Pero-
vich. 71 L. Ed. 1161). who in describing it said:
"We will not go into history, but we will say
a word about the principles of pardons in the
law of the United States. A pardon in our days
is not a private act of grace from an individual
happening to possess power. It is a part of the
constitutional scheme. When granted, it is the
determination of the ultimate authority that the
public welfare will be better served by inflict-
ing less than what the judgment fixed."
Notwithstanding such a forceful declaration by a most
eminent judge speaking with the unanimous approval
of the highest court in these United States, it has fre-
quently been declared by some members of the judiciary
that the exercise of the pardon power in any instance not
predicated upon some demonstrated miscarriage of
justice amounting to an error in the justice of the original
conviction is an usulrpation of the authority of the Courts,
and is an interference with the orderly administration of
Such a statement overlooks the fact that as to mere
errors leading to judgment the Courts themselves have
always asserted the power through granting new trials
and appellate reviews of nisi prius judgments to correct
their own mistakes insofar as mere matters of law and
fact are concerned, thereby eliminating any necessity for
the creation of a special board, whether a pardoning
Board or some other tribunal, to perform that function.
This is true because writs of error lie to correct errors
of law and writs of error coram nobis and coram vobis
lie to correct errors in the judgment in point of fact.
Assuming. however, that we are forced to admit that
in particular cases errors of fact may have occurred.
which even the Courts themselves are unable to remedy
by any known judicial processes, in consequence of which
some other tribunal must be vested with absolute dis-
cretion to grant executive relief, the proposition must by
this line of reasoning be admitted to have been estab-
lished that not all judicial judgments can be righteous
and not all verdicts of Courts can import absolute verity,
such as must. in theory at least. be the objective of our
So the doctrine, which supports the establishment and
maintenance of the pardoning power in a separate tri-
bunal, such as the pardoning board of a state, rests upon
neither of the foregoing hypotheses. On the contrary.
according to the above quoted declaration of the Supreme
Court of the United States, it is the function of the par-
doning power not merely to rectify mistakes or miscar-
riages of justice. but to make an official determination
that the public welfare will be better served by inflicting
less than what the judgments of the law, expressed
through the Courts, fix as the punishment for public
offenses denominated in our jurisprudence as crimes.
Nor can it be justly said that the mere existence of
such power as the pardon board is authorized to exer-
cise, nor even the possibility of unscrupulous officials,
interferes with the administration of justice by the Courts.
To this effect we quote no less authority than Mr. Chief
Justice Taft, a former President of the United States, who
denied that the power of pardon weakened the judicial
authority of the Courts. and said in writing an opinion
of the highest court in the world upholding the power
of the President of the United States to issue a pardon
to one convicted of contempt of court (Ex Parte Gross-
man, 69 L. Ed.. Text 535) :
"Finally, it is urged that criminal contempts
should not be held within the pardoning power
because it will tend to destroy the independence
of the judiciary and violate the primary con-
stitutional principle of a separation of the legis-
lative. executive, and judicial power. By
affirmative action through the veto power, the
executive and one more than one-third of either
house may defeat all legislation. One-half of
the House and two-thirds of the Senate may
impeach and remove the members of the judi-
ciary. The executive can reprieve or pardon all
offenses after their commission, either before
trial. during trial, or after trial, by individuals,
or by classes, conditionally or absolutely, and
this without modification or regulation by Con-
gress. Negatively one House of Congress can
withhold all appropriations and stop the opera-
tions of government. The Senate can hold up
all appointments, confirmations of which 'either
the Constitution or a statute requires, and thus
deprive the President of the necessary agents
with which he is to take care that the laws be
faithfully executed.' These are some instances
of positive and negative restraints possibly
available under the Constitution to each branch
of the Government in defeat of the action of
the other. They show that the independence of
each of the other is qualified, and is so subject
to exception as not to constitute a broadly posi-
tive injunction or a necessarily controlling rule
of construction. The fact is that the Judiciary.
quite as much as Congress and the Executive.
are dependent on the cooperation of the other
two. that Government may go on. Indeed.
while the Constitution has made the judiciary as
independent of the other branches as is practi-
cable, it is, as often remarked, the weakest of
the three. It must look for a continuity of
necessary cooperation, in the possible reluct-
ance of either of the other branches, to the
force of public opinion. Executive clemency
exists to afford relief from undue harshness or
evident mistake in the operation or enforcement
of the criminal law. The administration of
justice by the Courts is not necessarily always
wise or certainly considerate of circumstances
which may properly mitigate guilt. To afford a
remedy, it has always been thought essential in
popular governments, as well as in monarchies,
to vest in some other authority than the courts
power to ameliorate or avoid particular criminal
judgments. It is a check entrusted to the
executive for special cases. To exercise it to the
extent of destroying the deterrent effect of judi-
cial punishment would be to pervert it; but
whoever is to make it useful must have full dis-
cretion to exercise it. Our Constitution confers
this discretion on the highest officer in the
Nation in confidence that he will not abuse it.
An abuse in pardoning contempts would cer-
tainly embarrass Courts, but it is questionable
how much more it would lessen their effective-
ness than a wholesale pardon of other offenses.
If we could conjure up in our minds a President
willing to paralyze Courts by pardoning all
criminal contempt, why not a President order-
ing a general jail delivery?"
The foregoing statement of the law thus made by the
eminent Chief Justice, with the unanimous approval of
his associates on the bench of the Supreme Court of the
United States. is at once an answer and a refutation of
the charge frequently made, that the pardoning power
exercised by a Board as a part of our constitutional
system of government by law is in any wise subordinate
to the superior dignity of judicial power. or that its appro-
priate exercise constitutes any obstruction in a constitu-
tional sense to the enforcement of law through the
An abuse of the pardon power. of course, like the abuse
of any other power.-legislative. executive or judicial.-
is inimical to the public welfare. Indeed, any abuse of
any delegated power would be a violation of the spirit of
our Constitution and would receive the just condemna-
tion of public opinion against officials who should be
guilty of it.
So I may therefore safely assert that the State Board
of Pardons is not only an instrumentality constituting a
part of our system for the administration of justice
through law, but that the proper exercise of the pardon-
ing power is demanded as a sound public policy in order
to effectuate justice and promote the public welfare in
numbers of cases not possible to reach through judicial
proceedings. or which could be adapted for being reached
You have frequently heard it stated or seen it printed
in the public press that the Pardon Board ought either
to be abolished entirely or its powers so curtailed as to
make them difficult to exercise except in cases where
the Board may be called on to act as a mere approved
of some previously declared judicial acknowledgment
of unjust judgment by the Courts. resulting in the sen-
tence to be relieved against.
It is significant that such expressions of opinion from
the same sources have almost invariably been uttered
against all public officers in high offices and against the
legislature, concerning which it has frequently been sug-
gested that it should meet two days every sixty years
instead of sixty days every two years.
The only reason I presume that these same unjustified
critics have not gone the limit and as heartily condemned
the Courts with equal severity, has been the fear of the
power exercised by the Courts to protect themselves from
unwarranted condemnation by contempt proceedings
against the offenders who were afraid that the pardoning
board as victim of the same unjust attacks might not feel
inclined to exercise any privilege of interference by par-
don in connection with an offense of such character.
Considering therefore the Pardon Board as a part of
our system of administration of law. it is but fitting and
proper to the State that primarily one of its functions
is to act as a great court of equity of the criminal law,
to grant relief in individual cases for the benefit of the
Just as courts of equity came into existence to relieve
against rigors and hardships of judgments rendered by
Courts of law in civil cases, so the Pardon Board must
exercise its powers in individual criminal cases with
appropriate procedure and with proper consideration of
equitable influences to grant relief against legally sound
criminal judgments, but practically on the same con-
siderations of substantial equities that courts of chancery
act on to relieve individuals in civil cases against civil
judgments by law.
In addition to this the Pardon Board must act for the
general welfare of the State at large. irrespective of the
particular convict's case, by reducing the character and
extent of punishment where the public welfare demands
that such reduction be made to prevent pauperization of
families, to prevent unwarranted incidence of the punish-
ment on the convict's family instead of on him as in-
tended, or where through the particular condition sur-
rounding incarceration of the prisoner, he should be re-
leased irrespective of the views of the accused or his
friends in the matter. The exercise of this kind of power
by the Pardon Board is like that exercised by courts of
bankruptcy, who in our civil law system relieve debtors
to individuals at the expense of their creditors, because
the public welfare demands that such relief be granted
to enable the bankrupt to support his family and avoid
the creation of new public charges, which would follow
if relief from civil debts were denied.
What, therefore, are some other considerations of gen-
eral welfare as distinguished from equitable relief flow-
ing from the pardoning power to the accused in particular
cases, by which the State Board of Pardons in Florida
must be generally guided?
One consideration outside of avoiding pauperization of
the convict's family or in direct punishment of the family
itself is the prevention of such a crowded condition in
our State Prison that there will be no adequate facilities
to take care of those who must be kept incarcerated
there. The tax payers would be unable to bear the
burden of expense required to support an excessive num-
ber of prisoners in idleness. Public policy is better sub-
served by reducing sentences in worthy cases as a means
of controlling excessive population for available facilities.
Records of our State Prison Department show that
every year a considerably greater number of prisoners
are committed to the State Prison than are discharged in
the natural course of events during the same year.
through expiration of the sentences imposed by the
For example. in 1927, 1273 prisoners were sent to the
Florida State Penitentiary, and only 336 received a dis-
charge by natural expiration of sentence. During the
twenty years from 1911 to the present date. there have
been sentenced to incarceration in the State Prison of
Florida, 13,738 prisoners, while during the same period
of time there have been discharged by natural expiration
of sentence. but 7.315 prisoners. This means that had
the State Board of Pardons not acted at all (luring the
last twenty years, there would have been a natural net
increase in the number of prisoners accumulated in the
State Prison, of 6.42:1 more put in than were let out
during that period of time.
This in turn means that instead of having 2,600 prison-
ers now incarcerated in a state prison scarcely designed
to hold 2.000 prisoners, we would have some 8.769
prisoners now in the State Prison instead of the 2.600 who
are now there.
In spite of the fact that the State Board of Pardons
has kept the present population down and has generously
exercised its power. to release the better class of prisoners
after they have served a reasonable portion of their
sentences without requiring them to serve in full, it has
been found necessary to raise the State village for the
support of State prisoners from seven-eighths of a mill to
one and one-fourth mills during the last two years.
This one and one-fourth mills, however, only takes care
of 1,500 prisoners at Rniftord, the other 1,100 being sup-
ported by the activities of the State Road Department,
whose need of convict labor is constantly decreasing.
It is therefore evident from the figures just pointed
out that if the State Board of Pardons neglects to exer-
cise its powers the prison population will reach unman-
ageable limits and the State millage for the support of
prisoners will steadily increase. For the support of State
prisoners alone. instead of being one and one-fourth mills,
ias it is now, the village would be nearly seven mills for
maintenance only. not taking into account the additional
millage that would be required to be levied to build a
larger State Prison and to maintain guards sufficient to
care for a greatly augmented number of State prisoners.
Therefore. the necessities of public welfare compel the
Pardon Board to hold stated sessions at regular periods
each year, at which time it receives and acts upon peti-
tions for the relief of prisoners, and grants such petitions
as appear to the Board to be most deserving out of the
hundreds of applications submitted.
In other words, the welfare of the State demands, and
actual necessity makes unavoidable, the release by the
Pardon Board of some 250 or 300 prisoners every year,
in order to keep the prison population from becoming
excessively increased and to prevent unnecessary pauper-
ization of families of prisoners.
Even at that, the number of prisoners still held has
increased from 1.326 in 1911 to 2,600 in 1931, despite the
liberality of action of the State Board of Pardons.
The Florida Pardon Board does not allow mere
maudlin sentiment to influence its actions as is popularly
supposed. Whatever it does in the way of granting re-
leases after its regular Board sessions held twice each
year, occurs several weeks, and sometimes more than a
month, after the oral petitions are heard, and after the
recollection of children's cries and mothers' tears have
been wiped out of rmeembrance by other matters of
State business, which have engaged the attention of the
members in the meantime.
To enable it to properly perform its duties, the Board
endeavors always to get an accurate record of the facts
of each case presented-facts leading to the conviction
and facts concerning the convict and his record subse-
quent thereto. Every member has before him, while the
Board is in session, a book in which this record is entered.
Every member has before him when he votes on an appli-
cation this same record.
Undoubtedly, in discharging its functions, the Pardon
Board makes mistakes. Undoubtedly, it sometimes re-
leases unworthy prisoners and retains the custody of
some more worthy. Pontius Pilate, sitting as a pardon
board nearly two thousand years ago. released a thief
and crucified Jesus Christ. Modern dlay pardon boards
have sometimes proven no less fallible.
But whatever defects may exist in the administration
of the duties of the Pardon Board, a consideration of the
facts and the figures will demonstrate that it is impossi-
ble for the Pardon Board to avoid the necessity of freely
exercising its powers.
In writing this article, it is my sincere hope that those
citizens, lawyers, and judges to whose attention my state-
ment may come. will in a spirit of cooperation and aid to
the Pardon Board, rather than of condemnation, lend to
the Governor and other members of the Board, that
assistance which is so essential to enable the Board to
select for favorable action, only those cases which are
more worthy of clemency.
I hope by an appeal to reason to bring about an appre-
ciation of the fact that the Pardon Board. under our
system of government, is just as truly a part of our system
of administering justice as the judicial department itself.
and that the members of the Pardon Board should not be
called upon to grant mere acts of grace solely according
to personal desire, or to yield to undue influences in either
granting or denying petitions for pardon, nor to act upon
and consideration of personal favoritism or prejudice that
would not be expected to control the actions of members
of the Supreme Court or Circuit Courts in the rendition
of judgments within their jurisdiction.
The Pardon Board is a part of our system of legal
tribunals. It is the great criminal court of equity which
must be resorted to by individuals in proper cases, in
order to obtain relief against criminal judgments at law.
which were they civil cases, would be relieved against by
courts of equity on equitable considerations not available
in ordinary courts of law.
It exercises power analogous to our Courts of Bank-
ruptcy, which have never been considered as thwarting
justice. even though they did set aside and make unen-
forcible judgments of judicial tribunals concerning which
there could be no question of miscarriage o)f justice in the
rendition of the judgments thus avoided.
Just as Courts ofI Bankrupl)tcy were established to for-
give the debtor his debt to his creditor. when to do other-
wise would increase pauperism of families and ill affect
the interests of society, so the State Board of Pardons
must in many cases forgive the acknowledged criminal his
debt to society, when to do so will better subserve the
wtfare )of the people of the State at large by preventing
pauperism and avoiding consequences which fall unduly
and unnecessarily heavy on innocent women and children
in particular cases.
"The quality ,f mercry i not strained.
It ldrp- like gentle dlelw from heaven utpor the earth beneath.
It i. twice blessed.
It blessed him that give's and himn that takes,
'Tis mighty in the miihtiest.
And becomes the throned monarch better than hi- crown.
Earthly justice dloth then seenfl like.t (;,l'-.
When mercy tempers justice.."