The opinion
[This opinion has been published in Ohio Official Reports at 71 Ohio St.3d 513.]
THE STATE EX REL. MAURER ET AL., APPELLANTS, v. SHEWARD, JUDGE,
APPELLEE.
WILKINSON, DIR., ET AL., APPELLANTS, v. MAURER ET AL., APPELLEES.
[Cite as State ex rel. Maurer v. Sheward, 1994-Ohio-496.]
Constitutional law—Commutations of death sentences by Governor not subject to
application process outlined in R.C. 2967.07—Section 11, Article III, Ohio
Constitution, construed.
(Nos. 92-1350 and 93-1165—Submitted September 20, 1994—Decided
December 30, 1994.)
APPEALS from the Court of Appeals for Franklin County, Nos. 91AP-1442, 92AP-
674, 92AP-675, 92AP-677 and 92AP-678.
__________________
Case No. 93-1165
{¶ 1} On January 10, 1991, two business days before the expiration of his
term in office, former Ohio Governor Richard F. Celeste commuted the sentences
of eight inmates and granted one full pardon. Two additional inmates also were
granted clemency, but their appeals below were either withdrawn or properly found
to be moot.1
1. In his application for clemency, Saram Bellinger stated that he was convicted of aggravated
robbery with firearm specifications and was sentenced to an indefinite term of five to twenty-five
years’ imprisonment, to be served consecutively with three years’ actual incarceration. Both former
Governor Celeste and Governor George V. Voinovich commuted that sentence to time served.
Bellinger withdrew his appeal.
According to his application for clemency, Freddie Moore was convicted of operating a
gambling house and received a suspended sentence. Former Governor Celeste granted Moore a full
and unconditional pardon on January 11, 1991, after which Governor Voinovich pardoned him on
August 24, 1992. The court of appeals noted that his appeal had been rendered moot by the pardon
from Governor Voinovich.
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{¶ 2} Donald Lee Maurer, Leonard Jenkins, Debra Brown, Willie Lee
Jester, Elizabeth Green, Lee Seiber and Rosalie Grant had been convicted of
aggravated murder and sentenced to death. With the exception of Rosalie Grant,
former Governor Celeste commuted the death sentences to life imprisonment
without eligibility for parole. The Governor commuted Rosalie Grant’s death
sentence to life in prison with no restriction as to parole eligibility. Ralph DeLeo
had been convicted of murder and was serving a sentence of fifteen years to life.
Former Governor Celeste commuted his sentence to time served. John Salim had
been convicted of felonious assault. He was serving a sentence of six to twenty-
one years when former Governor Celeste granted him a full pardon.
{¶ 3} When the former Governor granted the pardon and commutations, the
Ohio Adult Parole Authority (“APA”) had not been asked to conduct investigations
or formulate recommendations for seven of the applicants who had been sentenced
to death. Instead, their applications for clemency were filed directly with the former
Governor. With respect to Ralph DeLeo and John Salim, their applications were
submitted to the APA between December 6 and December 17, 1990. By January
9, 1991, the APA had taken no final action on the two applications. On that day, a
representative from former Governor Celeste’s office called the APA to request
that it expedite review of the two applications. The APA responded that it could
not complete the review process in two business days.
{¶ 4} On January 29, 1991, George Wilson, Director of the Department of
Rehabilitation and Correction, and John Shoemaker, Chief of the APA,2 filed a
complaint for declaratory judgment in the Franklin County Court of Common Pleas
2. Reginald Wilkinson was substituted as a party to this action pursuant to Civ.R. 25(D)(1) when
he replaced George W. Wilson as the Director of Rehabilitation and Correction effective March 25,
1991.
Jill Goldhart was substituted as a party for John W. Shoemaker when she became Acting
Chief of the APA.
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seeking a determination that former Governor Celeste’s actions were in
contravention of Section 11, Article III of the Ohio Constitution, and R.C. Chapter
2967. The plaintiffs sought a declaration that the pardon and commutations granted
to the defendants by former Governor Celeste were void. Current Governor George
V. Voinovich successfully petitioned the court for leave to intervene as a plaintiff.
{¶ 5} On March 6, 1991, the defendants moved to dismiss the complaint for
lack of jurisdiction, alleging that the matter was nonjusticiable, because any judicial
declaration as to the validity of executive clemency would unconstitutionally
infringe upon the Governor’s clemency power. The trial court overruled the motion
on September 26, 1991. Following a bench trial, the trial judge issued a decision
and entry granting a declaratory judgment to plaintiffs. The court explained that
“full compliance with the requirements of R.C. 2967.07 and R.C. 2967.12 is a
condition precedent to the valid exercise of the clemency power by the Governor
* * *” and that the pardon and commutations granted by former Governor Celeste
were invalid.
{¶ 6} The eleven defendants appealed in six separate notices of appeal to
the Tenth District Court of Appeals; their appeals were consolidated for decision.
The court of appeals reversed the decision of the trial court. After considering the
language of Section 11, Article III, the court of appeals found that the clause that
subjects the Governor’s clemency power to “such regulations, as to the manner of
applying for pardons” applies only to the Governor’s power to grant pardons. The
court stated that the constitutional provision does not provide the General Assembly
with authority to regulate the Governor’s power to grant commutations. The court
of appeals also determined that regulations enacted by the General Assembly apply
to individuals applying for pardons but do not affect the ability of the Governor to
grant a pardon on his own initiative. Specifically, the court of appeals held that
nothing in Section 11, Article III of the Ohio Constitution or R.C. Chapter 2967
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could limit the Governor’s power to grant clemency on his own initiative, even if
he chose to do so without first receiving a recommendation from the APA.
{¶ 7} This cause is now before this court upon the allowance of a motion to
certify the record.
Case No. 92-1350
{¶ 8} The second cause submitted for review emerged from the underlying
declaratory judgment action discussed above. On December 10, 1991, after the
trial court denied the defendants’ motion to dismiss the action, but prior to trial, the
defendants sought a writ of prohibition in the Franklin County Court of Appeals.
Defendants urged the court of appeals to bar the trial judge from exercising judicial
power over the declaratory judgment action, because the action did not present a
justiciable question. On January 28, 1992, a referee concluded that the defendants’
arguments lacked merit and recommended that the court of appeals dismiss the
prohibition action on the basis of this court’s decision in State ex rel. Ney v.
Governor (1991), 58 Ohio St.3d 602, 567 N.E.2d 986. The court of appeals
adopted the referee’s recommendation and dismissed the petition.
{¶ 9} This cause is now before this court upon an appeal as of right and has
been consolidated with case No. 93-1165 for purposes of final determination.
__________________
Ken Murray, for appellant Debra Brown in case No. 92-1350.
Barry W. Wilford and Dennis Pusateri, for Ralph DeLeo.
S. Adele Shank, for Rosalie Grant.
D. Shannon Smith and Timothy A. Smith, for Elizabeth Green.
Elizabeth A. McNellie, Joy Maciejewski and Sean M. McAvoy, for appellant
Leonard Jenkins in case No. 92-1350.
Shaw, Pittman, Potts & Trowbridge, Thomas C. Hill, Alvin Dunn and
Joseph Figini; Matan & Smith and Steven L. Smith, for Willie L. Jester.
Sowash, Carson & Shostak and Herman A. Carson, for Donald Maurer.
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January Term, 1994
Richard B. Igo, for Freddie Moore and John Salim.
Gregory W. Meyers, for Lee Seiber.
Michael Miller, Franklin County Prosecuting Attorney, and Bonnie L.
Maxon, Assistant Prosecuting Attorney, for appellee in case No. 92-1350.
Lee Fisher, Attorney General, John J. Gideon and Jack W. Decker,
Assistant Attorneys General, for appellants in case No. 93-1165 and urging
affirmance for amici curiae, George Voinovich, Reginald Wilkinson and Jill
Goldhart in case No. 92-1350.
K. Ronald Bailey, for appellee Debra Brown in case No. 93-1165.
Melanie S. Corcoran, James W. Brown III and Christopher P. Thorman, for
appellee Leonard Jenkins in case No. 93-1165.
Steven H. Steinglass, urging dismissal or affirmance for amicus curiae, Law
Professors’ Brief Amicus Curiae Committee in case No. 93-1165.
Kevin Francis O’Neill, Peter Joy, Daniel T. Kobil and Paul Moke; Moots,
Cope & Stanton and Benson A. Wolman, urging affirmance for amicus curiae,
American Civil Liberties Union of Ohio Foundation in case No. 93-1165.
Squire, Sanders & Dempsey and David J. Young, urging affirmance for
amicus curiae, Catholic Conference of Ohio in case No. 93-1165.
Law Enforcement Legal Association, Inc., Paul L. Cox and Walter T.
Florence, urging reversal for amicus curiae, Fraternal Order of Police of Ohio, Inc.,
in case No. 93-1165.
__________________
Per Curiam.
{¶ 10} Case No. 93-1165 requires this court to decide three issues: (1) Does
Section 11, Article III of the Ohio Constitution authorize the General Assembly to
prescribe procedural prerequisites to the exercise of the Governor’s clemency
power?; (2) If so, does the General Assembly have the authority to prescribe
procedural prerequisites for commutations as well as pardons?; and (3) Has the
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General Assembly in fact imposed procedural prerequisites upon the Governor’s
clemency power?
{¶ 11} We will address case No. 92-1350, which raises issues also
implicated by case No. 93-1165, in Part IV of this opinion.
I
{¶ 12} Section 11, Article III of the Ohio Constitution provides the
authority for the Governor’s clemency power:
“He [the Governor] shall have power, after conviction, to grant reprieves,
commutations, and pardons, for all crimes and offenses, except treason and cases
of impeachment, upon such conditions as he may think proper; subject, however,
to such regulations, as to the manner of applying for pardons, as may be prescribed
by law. Upon conviction for treason, he may suspend the execution of the sentence,
and report the case to the general assembly, at its next meeting, when the general
assembly shall either pardon, commute the sentence, direct its execution, or grant a
further reprieve. He shall communicate to the general assembly, at every regular
session, each case of reprieve, commutation, or pardon granted, stating the name
and crime of the convict, the sentence, its date, and the date of the commutation,
pardon, or reprieve, with his reasons therefor.”
{¶ 13} Section 11, Article III was adopted as part of extensive revisions to
the Constitution made in 1851. Prior to 1851, the Governor’s clemency power was
set forth in Section 5, Article II of the Ohio Constitution of 1802, which provided
in its entirety: “He [the Governor] shall have the power to grant reprieves and
pardons, after conviction, except in cases of impeachment.” This section was
modeled after Section 2, Article II of the United States Constitution, which gives
the President the “Power to grant Reprieves and Pardons for Offences against the
United States, except in Cases of Impeachment.”
{¶ 14} Both the United States Constitution and the Ohio Constitution of
1802 conferred broad powers of executive clemency. The only limitations on the
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clemency power were that it could be exercised only after conviction (Ohio
Constitution) and that clemency could not be granted in cases of impeachment (both
Ohio and United States Constitutions). Neither Constitution authorized the
enactment of laws to curtail the executive’s clemency power. However, with the
adoption of Section 11, Article III, Ohio significantly altered its provision on
executive clemency.
{¶ 15} Although the Ohio Constitution places the clemency power in the
hands of the Governor, that power clearly is not absolute. The Governor’s
clemency power is subject to whatever restrictions are contained in Section 11,
Article III. See State v. Morris (1978), 55 Ohio St.2d 101, 111, 9 O.O.3d 92, 98,
378 N.E.2d 708, 714. These restrictions provide that clemency may be granted
only after conviction, may be granted only partially in cases of treason, and not at
all in cases of impeachment.
{¶ 16} Though the Governor’s power to grant clemency is limited, the only
limits on the clemency power are those specifically authorized by Section 11,
Article III. Knapp v. Thomas (1883), 39 Ohio St. 377, 392. The General Assembly
may not interfere with the discretion of the Governor in exercising the clemency
power. Morris, 55 Ohio St.2d at 111, 9 O.O.3d at 98, 378 N.E.2d at 714. Likewise,
the Governor’s exercise of discretion in using the clemency power is not subject to
judicial review. See State ex rel. Whiteman v. Chase (1856), 5 Ohio St. 528, 535;
Knapp, 39 Ohio St. at 391.3
3. Even though courts may not review the substantive decision of the Governor on whether to
exercise clemency in a particular case, courts may consider whether constitutionally authorized
limitations on the clemency power have been respected. For example, if a Governor attempted to
grant a pardon before the recipient had been convicted, the purported grant would be outside the
scope of the clemency power conferred by Section 11, Article III and constitutionally invalid from
the outset. Similarly, a purported pardon is not really a pardon at all if constitutionally authorized
procedural limitations on the pardoning power are ignored. Knapp held that a pardon, once granted
and delivered, is irrevocable. Id., 39 Ohio St. 377, syllabus. However, Knapp did not consider the
issue of constitutional limitations on the Governor’s power. An attempted pardon which is granted
without adherence to constitutionally authorized requirements is invalid, and is not immune to
challenge.
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{¶ 17} The specific limitation at issue in this case comes from the “subject
to” clause of Section 11, Article III:
“He [the Governor] shall have power, after conviction, to grant reprieves,
commutations, and pardons, for all crimes and offenses, except treason and cases
of impeachment, upon such conditions as he may think proper; subject, however,
to such regulations, as to the manner of applying for pardons, as may be prescribed
by law.” (Emphasis added.)
{¶ 18} It is apparent from the structure of the first sentence of Section 11
that the “subject to” clause modifies the word “power.” The first clause of the first
sentence provides the Governor the power to grant executive clemency. The
presence of the word “however” in the second clause indicates a limit on that power.
Thus, the Governor’s power to grant clemency is limited by the “subject to” clause.
However, the authority granted to the General Assembly under the “subject to”
clause is itself limited to regulating the application process. Furthermore, as we
conclude below, the “subject to” clause only provides the General Assembly with
the authority to regulate “as to the manner of applying for pardons.” (Emphasis
added.) Consistent with Knapp and Morris, the authority to issue regulations is
further limited in that those regulations may not interfere with the Governor’s
discretion to grant or deny pardons.
{¶ 19} We believe that the authority to prescribe regulations “as to the
manner of applying for pardons” provides the General Assembly with the authority
to prescribe a regulatory scheme governing the manner and procedure of applying
for pardons. Unlike the court of appeals, we do not believe that the General
Assembly has the authority to regulate only the applicants for pardons. We
interpret the language of the “subject to” clause as providing the General Assembly
with the authority to establish a regulatory scheme that includes prerequisites to the
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exercise of the Governor’s power to grant pardons.4 Our interpretation is consistent
with the purpose of the “subject to” clause, which was to provide the General
Assembly with the authority to establish procedural safeguards against the granting
of pardons. The drafters of Section 11 were concerned that without such
safeguards, the Governor might grant pardons without thorough consideration or
might be too easily influenced by political factors to grant or deny clemency for
reasons other than the merits of an inmate’s claim. See 1 Report of the Debates and
Proceedings of the Convention for the Revision of the Constitution of the State of
Ohio 1850-1851 (1851) 306-307. Consistent with the language and purpose of
Section 11, the authority to regulate the application process must also include the
authority to establish prerequisites to the Governor’s exercise of the power to grant
pardons. To exempt the Governor from the “subject to” clause would allow the
Governor to circumvent the procedural safeguards for which the clause was
adopted, rendering the clause meaningless.
{¶ 20} For the foregoing reasons, we hold that the General Assembly is
authorized by Section 11, Article III of the Ohio Constitution to prescribe
procedural prerequisites to the application process for executive pardons. In order
to be valid, any grant of a pardon must be based on an application that complies
with the procedural prerequisites. The General Assembly is not authorized to
prescribe substantive regulations concerning the Governor’s discretion in the use
of the clemency power, or in any way intrude on the discretion of the Governor.
For example, the General Assembly could not, acting under the limited authority
provided by Section 11, Article III, enact a statute requiring the Governor to accept
4. Interpreting the “subject to” clause as authorizing the General Assembly to set up a regulatory
scheme which includes prerequisites to the exercise of the Governor’s pardoning power is consistent
with our earlier analysis where we found that the clemency power is subject to whatever limits are
set forth in Section 11, Article III. In the case of the “subject to” clause, the limit takes the form of
an authorization to the General Assembly to issue regulations that will themselves limit the
Governor’s pardoning power.
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the recommendation of the APA in the exercise of his clemency power. Likewise,
the General Assembly could not enact a statute forbidding the Governor from
exercising the clemency power in any specific class of cases.
II
{¶ 21} Having determined that Section 11, Article III authorizes the
General Assembly to prescribe procedural regulations as to the application process
for pardons, we next consider whether that authority extends to any other types of
clemency.
{¶ 22} The language of Section 11 expressly provides the extent of the
General Assembly’s authority to regulate the application process for executive
clemency: “[The Governor] shall have power * * * to grant reprieves,
commutations, and pardons * * *; subject, however, to such regulations, as to the
manner of applying for pardons, as may be prescribed by law.” (Emphasis added.)
The language of Section 11 clearly provides the General Assembly with the
authority to regulate the application process for pardons. However, the “subject to”
clause does not implicate in any way the Governor’s powers with respect to
commutations or reprieves.5 The issue then becomes whether commutations, even
though they are not mentioned within the “subject to” clause, may also be regulated.
{¶ 23} Plaintiffs argue that the authority to regulate the application process
for “pardons” also includes the authority to similarly regulate commutations. They
reach that conclusion based upon their perception that the word “pardons” may be
interpreted broadly to include all types of executive clemency. In other words, the
5. Though the validity of a reprieve is not at issue in this case, we believe that any interpretation of
the “subject to” clause is necessarily incomplete without considering each of the three types of
executive clemency. In terms of reprieves, we believe that they are fundamentally different from
pardons. A reprieve is temporary; execution of a sentence is delayed when the Governor grants a
reprieve. A reprieve is not permanent in the way that a pardon is. Reprieves, by their very nature,
often require prompt, totally unfettered action by the Governor. Consequently, we find that
reprieves are not governed by the “subject to” clause and, consistent with our analysis below, the
General Assembly may not regulate the application process for reprieves.
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plaintiffs argue that commutations are a subset of pardons, and by using the word
“pardons” the drafters intended that the General Assembly have the power to
regulate commutations as well as pardons.
{¶ 24} We do not believe that commutations are a subset of pardons. The
first step in determining the meaning of a constitutional provision is to look at the
language of the provision itself. Where the meaning of a provision is clear on its
face, we will not look beyond the provision in an attempt to divine what the drafters
intended it to mean. Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574.
{¶ 25} The meaning of Section 11 is obvious after a careful review of that
provision. The first sentence provides the Governor with the power to grant three
different types of clemency—reprieves, commutations and pardons. The end of the
first sentence is equally clear in providing the General Assembly with the authority
to regulate the application process for only one type of clemency—pardons. The
language of Section 11 could not be clearer in limiting the General Assembly’s
authority to regulate only pardons. Moreover, any argument that commutations are
a subset of pardons is, as shown below, simply unsupportable.
{¶ 26} The canons of statutory interpretation, which guide our
interpretation of constitutional and statutory text, support the conclusion that the
word “pardons” in the “subject to” clause does not include commutations. This
court has consistently held that words used more than once in the same provision
have the same meaning throughout the provision, unless there is clear evidence to
the contrary. State ex rel. Bohan v. Indus. Comm. (1946), 146 Ohio St. 618, 33
O.O. 92, 67 N.E.2d 536, paragraph one of the syllabus, overruled on other grounds,
State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O.3d 347,
390 N.E.2d 1190. The three types of clemency are each listed together four
different times in Section 11. In fact, the only time one type of clemency is
mentioned alone is when “pardons” appears within the “subject to” clause. To
define pardons to include commutations when the two types of clemency are each
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listed together so many times within the same small section would be nonsensical.
Additionally, interpreting “pardons” to include commutations has the problem of
rendering the presence of the word “commutations” useless. Our prior cases require
that we reject that result, because if possible we must give meaning to every word
in a provision. Steele, Hopkins & Meredith Co. v. Miller (1915), 92 Ohio St. 115,
110 N.E. 648.
{¶ 27} The argument that commutations are a subset of pardons is also
contrary to our previous decisions where we have held that commutations and
pardons are two entirely different types of clemency. In In re Victor (1877), 31
Ohio St. 206, 207, this court defined a commutation as “a change of punishment
from a higher to a lower degree, in the scale of crimes and penalties fixed by the
law * * *.” In State ex rel. Atty. Gen. v. Peters (1885), 43 Ohio St. 629, 650-651,
4 N.E. 81, 87-88, this court defined pardons:
“A pardon discharges the individual designated from all or some specified
penal consequences of his crime. It may be full or partial, absolute or conditional.
“A full and absolute pardon releases the offender from the entire
punishment prescribed for his offense, and from all the disabilities consequent on
his conviction.
“[A] commutation is ‘the change of a punishment to which a person has
been condemned into a less severe one.’
“It is not a conditional pardon, but the substitution of a lower for a higher
grade of punishment * * *.” (Citation omitted and emphasis added.)
{¶ 28} The Peters case conclusively established that pardons are different
from, and do not include, commutations. The interpretation of Section 11 ends
here, with the unmistakable conclusion that the “subject to” clause does not provide
the authority to regulate commutations.
{¶ 29} Instead of approaching Section 11 by considering its plain language,
the dissent attempts to justify its interpretation that the word “pardons” in the
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“subject to” clause includes commutations by wading into the morass of speeches
made by the drafters of Section 11. The dissent bases its interpretation on the
perception that because several drafters did not distinguish between commutations
and pardons in their speeches regarding the reporting clause of Section 11, they
intended that the word pardon in the “subject to” clause include commutations.
Such a conclusion is simply incomprehensible. We do not agree that imprecise
speeches by individual drafters give courts carte blanche to ignore the plain
language of a constitutional provision. Those drafters were precise when they
wrote the reporting provision. That provision, which is the last sentence of Section
11, precisely distinguishes among the three different types of clemency: “He shall
communicate to the general assembly, at every regular session, each case of
reprieve, commutation, or pardon granted, stating the name and crime of the
convict, the sentence, its date, and the date of the commutation, pardon, or reprieve,
with the reasons therefor.” (Emphasis added.) Moreover, as we stated in Slingluff,
we will not look to the history of a provision where, as here, the language of the
provision is clear.
{¶ 30} Given our tradition of interpreting statutory and constitutional
language, the only plausible interpretation of Section 11 is the one we adopt
today—the “subject to” clause provides authority to the General Assembly to
regulate the application process for pardons and not commutations.
III
{¶ 31} Because we have established that Section 11, Article III authorizes
the General Assembly to regulate the application process for pardons, we must
determine whether the General Assembly has, in fact, prescribed any regulations.
Plaintiffs claim that the General Assembly, through R.C. Chapter 2967 in general
and R.C. 2967.07 in particular, has established procedural requirements that must
be fulfilled before a pardon may be granted. Defendants argue that R.C. 2967 is
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merely a directory statute setting forth procedures which the Governor may choose
to ignore.
{¶ 32} R.C. 2967.07 provides:
“All applications for pardon, commutation of sentence, or reprieve shall be
made in writing to the adult parole authority. Upon the filing of such application,
or when directed by the governor in any case, a thorough investigation into the
propriety of granting a pardon, commutation, or reprieve shall be made by the
authority, which shall report in writing to the governor a brief statement of the facts
in the case, together with the recommendation of the authority for or against the
granting of a pardon, commutation, or reprieve, the grounds therefor and the records
or minutes relating to the case.”
{¶ 33} As we determined above, Section 11, Article III of the Ohio
Constitution authorizes the General Assembly to regulate the application process
only with respect to pardons, and not commutations or reprieves. Because the grant
of the clemency power with respect to commutations and reprieves is unfettered,
any regulation by the General Assembly that acts to limit the Governor’s power to
grant commutations or reprieves is a violation of the Constitution. To the extent
that the regulatory scheme under R.C. Chapter 2967 places limits or preconditions
on the Governor’s power to grant commutations or reprieves, it is unconstitutional
and void. We are particularly concerned with R.C. 2967.07. As we note below,
the General Assembly in R.C. 2967.07 has provided a regulatory prerequisite to the
granting of commutations, as well as pardons and reprieves: a clemency application
must be made to and acted on by the Adult Parole Authority before the Governor
may grant clemency. We do not question the wisdom of this legislation, but it has
no constitutional underpinnings beyond pardons.
{¶ 34} The question becomes whether we may sever the unconstitutional
references to commutations and reprieves from the otherwise constitutional
portions of R.C. 2967.07. R.C. 1.50 provides that statutory provisions are
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presumptively severable: “If any provision of a section of the Revised Code or the
application thereof to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of the section or related sections which
can be given effect without the invalid provision or application, and to this end the
provisions are severable.” In order to sever a portion of a statute, we must first find
that such a severance will not fundamentally disrupt the statutory scheme of which
the unconstitutional provision is a part. We set forth the test for determining
whether an unconstitutional provision may in fact be severed in Geiger v. Geiger
(1927), 117 Ohio St. 451, 466, 160 N.E. 28, 33:
“‘(1) Are the constitutional and the unconstitutional parts capable of
separation so that each may be read and may stand by itself? (2) Is the
unconstitutional part so connected with the general scope of the whole as to make
it impossible to give effect to the apparent intention of the Legislature if the clause
or part is stricken out? (3) Is the insertion of words or terms necessary in order to
separate the constitutional part from the unconstitutional part, and to give effect to
the former only?’” Id., quoting State v. Bickford (1913), 28 N.D. 36, 147 N.W.
407, paragraph nineteen of the syllabus.
{¶ 35} The references to commutations and reprieves meet the test for
severability provided in Geiger. R.C. 2967.07 provides a regulatory scheme that
imposes the same regulations upon the three types of clemency. In other words, it
is as if there were three separate but identical statutes each regulating one type of
clemency. Therefore, the regulation of each type of clemency is essentially
independent of the others. Because of their independence, the regulation of
commutations and reprieves are not so connected to the regulation of pardons that
without reference to commutations and reprieves the regulatory scheme will not
give effect to the intention of the General Assembly. The requirements of the
regulatory scheme concerning pardons will not change. We need only excise the
constitutionally offensive references to commutations and reprieves in R.C.
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2967.07 and need not add any other language in order to give effect to its regulatory
scheme. Thus, we hold that, pursuant to the Ohio Constitution, R.C. 2967.07 may
regulate the application process for pardons only.
{¶ 36} Because only a portion of the statute is constitutional, only the
Governor’s grant or denial of a pardon is “subject to” the application process
outlined in R.C. 2967.07. His power to grant or deny commutations is not subject
to those regulations. Therefore, the commutations at issue in this case remain valid.
{¶ 37} The validity of the one pardon granted without an application in
compliance with the procedure outlined in R.C. 2967.07 remains at issue. We must
now determine whether this noncompliance precluded the Governor from granting
a pardon. As we noted above, the Governor exercises the pardoning power “subject
to” these regulations, even though the General Assembly is not authorized by
Section 11, Article III to intrude in any way upon the Governor’s discretion to grant
or deny a pardon.
{¶ 38} The exercise of the pardoning power involves two distinct
elements—the application process and the consideration process. The phrase
“manner of applying” for pardons includes the entire application process, which
encompasses the filing of the application itself, the investigation, the
recommendation, and the full report compiled by the APA. We find that the
General Assembly’s authority to regulate the application process extends to the
time just before the Governor reaches a substantive decision concerning a pardon.
Once this point is reached, the General Assembly’s constitutionally granted
authority to regulate procedurally the pardoning power of the Governor is at its end.
{¶ 39} By its clear terms, R.C. 2967.07 contemplates that an investigation
by the APA that leads to a recommendation for or against a pardon may be initiated
in two distinct ways. The first way is for an applicant (or someone on the
applicant’s behalf) to file a pardon request directly with the APA. The second way
is for the Governor to direct that the investigation occur. The real issue in this case
16
January Term, 1994
is whether the Governor is required to await the APA investigation and
recommendation before he may grant a pardon.
{¶ 40} The first sentence of R.C. 2967.07 requires that all applications for
pardons shall be made to the APA. The General Assembly has chosen the word
“all” to indicate that every request for a pardon must go to the APA for evaluation.
In addition, the General Assembly has chosen to use the word “shall” in R.C.
2967.07 three times in connection with the APA’s role in the pardon application
process. This indicates the mandatory nature of the APA investigation and of the
entire APA involvement in the application process.
{¶ 41} We hold that R.C. 2967.07 mandates that the APA investigation
report and recommendation must be presented to the Governor before he may grant
a pardon. This mandate includes those situations in which the Governor initiates
the APA investigation.
{¶ 42} The requirement of APA involvement by the General Assembly is
permissible, because it is within the General Assembly’s authority to “legislate in
aid of the [pardoning] power.” Knapp, 39 Ohio St. at 392-393. The statute is meant
to ensure that information about each person for whom a pardon is considered will
be available to the Governor, so that an informed decision may be made. This is
precisely the type of regulation “as to the manner of applying for pardons”
contemplated by Section 11, Article III. The Governor’s power to grant pardons is
subject to this procedural mechanism, which requires the APA to investigate,
recommend and report before the Governor may grant a pardon.
{¶ 43} Because the Governor has ultimate substantive discretion whether to
grant or deny a pardon, there is no requirement that the Governor place any weight
whatsoever on either the investigative report or the recommendation of the APA.
However, the power to disregard is not equivalent to the power to proceed without
the procedural requirements first being fulfilled. The abuses sought to be remedied
by addition of the “subject to” clause in Section 11, Article III are those that occur
17
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during the application process. Thus, the process is subject to regulation, and
procedural requirements may be placed on the Governor’s power to pardon. To
find otherwise would be to read the “subject to” clause out of Section 11, Article
III, when it is clear that that clause affects the power of the Governor to grant
pardons.
{¶ 44} Defendants argue that if R.C. 2967.07 regulates in a way which
affects the Governor’s power to pardon, then the statute is unconstitutional.
However, the regulations placed on the pardoning power are those authorized by
the Constitution itself. See Knapp, 39 Ohio St. at 392. Since R.C 2967.07 was
enacted pursuant to the authority of Section 11, Article III, the statute is
constitutional to the extent that it regulates the application process for pardons.
{¶ 45} We recognize that the pardoning power conferred on the Governor
by the Ohio Constitution is essential to ensure justice in particular cases. Indeed,
as Alexander Hamilton stated in The Federalist No. 74 (Cooke Ed. 1961) 500-501,
in support of the broad clemency power conferred on the President by Section 2,
Article II of the United States Constitution: “Humanity and good policy conspire
to dictate, that the benign prerogative of pardoning should be as little as possible
fettered or embarrassed. The criminal code of every country partakes so much of
necessary severity, that without an easy access to exceptions in favor of unfortunate
guilt, justice would wear a countenance too sanguinary and cruel.”
{¶ 46} However, the power to pardon is subject to abuse. The framers
therefore authorized the Ohio General Assembly to enact regulations to limit those
abuses, thereby allowing procedural requirements which limit the Governor’s
exercise of the power. In R.C. Chapter 2967, the General Assembly has enacted
the authorized regulations as safeguards against abuse. Those safeguards do not
stand in the way of the Governor’s substantive exercise of the pardoning power. It
would take an amendment to Ohio’s Constitution to authorize substantive
limitations. Nevertheless, the safeguards do impose procedural requirements which
18
January Term, 1994
were bypassed in this case. The pardon purportedly granted was invalid from the
outset.
{¶ 47} Amicus curiae American Civil Liberties Union of Ohio Foundation
argues that if this court reverses the decision of the court of appeals, the cause
should be remanded to the court of appeals to resolve issues that court did not reach
in its previous opinion. However, we have determined, as a matter of law, that
former Governor Celeste acted outside the scope of his constitutionally conferred
clemency authority in granting the pardon. The other assignments of error raised
in the court of appeals cannot alter that finding. The judgment of the court of
appeals in case No. 93-1165 is affirmed with respect to the commutations and
reversed as to the pardon. The declaratory judgment of the trial court that the
pardon is invalid is reinstated.
IV
Case No. 92-1350
{¶ 48} In case No. 92-1350, the defendants in case No. 93-1165 appeal from
the court of appeals’ denial of their complaint for a writ of prohibition. Defendants
contend that the court of appeals erred in refusing to stop the trial court from
exercising jurisdiction in the declaratory judgment action, which is the subject of
the appeal in case No. 93-1165. We find that our resolution of the issues in case
No. 93-1165 is determinative of the issues raised in this appeal, and that any
remaining issues therefore are moot. Accordingly, we affirm the judgment of the
court of appeals in case No. 92-1350.
Judgment affirmed
in case No. 92-1350.
Judgment affirmed in part
and reversed in part
in case No. 93-1165.
A.W. SWEENEY, WRIGHT and EVANS, JJ., concur.
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MOYER, C.J., concurs separately.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in part and dissent in
part.
JOHN R. EVANS, J., of the Third Appellate District, sitting for RESNICK, J.
__________________
MOYER, C.J., concurring separately.
{¶ 49} I concur in the judgment and opinion of the majority that apply
Section 11, Article III, Ohio Constitution and R.C. Chapter 2967 as clearly intended
by the drafters of the Ohio Constitution and by the General Assembly. I write
separately to discuss an aspect of the majority decision that demonstrates one of the
very difficult responsibilities of being a judge.
{¶ 50} The majority’s careful and restrained interpretation produces the
only conclusion that is faithful to the words of the Constitution and to R.C. Chapter
2967. We are not required or even requested to review the wisdom or the judgment
of the acts of Governor Celeste when he pardoned and commuted the sentences of
the defendants two business days before he left office. If that were the issue, my
vote would be to invalidate all of the Governor’s actions. That, however, is not the
issue we are required to decide. Nor is there any dispute that even if the Governor
were required by the Constitution and the statutes to receive a report from the Ohio
Adult Parole Authority before granting a pardon or commutation, he could
disregard the recommendation contained in the report and grant the pardon or
commutation. Indeed, the manner in which Governor Celeste granted the
commutations and pardon in the cases before us suggests that even if he had
followed the statutory procedure, it is unlikely he would have followed a
recommendation of the Adult Parole Authority that any of the defendants not be
granted a commutation or pardon. It appears that that is precisely the reason the
dissent advocates an amendment to the Constitution that would limit the power of
the Governor to grant pardons, commutations and reprieves beyond the limitations
20
January Term, 1994
in Section 11, Article III. As Chief Justice Marshall observed, “[c]ourts are the
mere instruments of the law, and can will nothing.” Osborn v. Bank of United
States (1824), 22 U.S. (9 Wheat.) 738, 866, 6 L.Ed. 204, 234.
{¶ 51} The majority opinion reflects the fundamental role of judicial
responsibility and restraint. Every judge faithful to the judicial oath of office must
be able to separate the law from his or her personal views when deciding cases.
That fundamental aspect of judging is a unique challenge to judicial decision-
making. In separating personal opinion from the constitutional issues before us, I
am reminded of the observation that “[i]f the provisions of the Constitution be not
upheld when they pinch as well as when they comfort, they may as well be
abandoned.” Home Bldg. & Loan Assn. v. Blaisdell (1934), 290 U.S. 398, 483, 54
S.Ct. 231, 256, 78 L.Ed. 413, 452 (Sutherland, J., dissenting). There is no comfort
in applying the plain language of the Ohio Constitution to the facts in the case
before us. The conduct of the death-penalty defendants that produced their
convictions and death sentences is the lowest form of human behavior. If the death
penalty is appropriate for anyone, it is appropriate for them. However, that personal
belief has no relevance to the legal issues before us and must be separated from the
judicial decision we are required to render. The words of the Constitution can be
given their plain meaning only as applied by the majority decision. To analyze
away the words of the Constitution is to engage in an act of corroborating one’s
own belief that the Governor’s actions were unwise.
{¶ 52} The distribution of power among the three branches of government
rests on a delicate balance. It is a fundamental element of American government.
S. Euclid v. Jemison (1986), 28 Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136. We
are urged by the successor in the office of governor to exercise our constitutional
power to invalidate the commutations and a pardon of his predecessor in office.
Restraint should characterize the exercise of judicial power in such a case. If we
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abandon the words of the Constitution as adopted by the citizens of Ohio in 1851,
we invade both the authority of the executive branch and the will of the people.
{¶ 53} For the foregoing reasons, I concur, albeit regretfully, in the per
curiam opinion.
__________________
ALICE ROBIE RESNICK, J., concurring in part and dissenting in part.
I
{¶ 54} By a stroke of a pen a Governor is authorized by today’s opinion to
overturn the death penalty verdicts of judges and juries which have been upheld by
countless state appellate judges, Supreme Court justices and federal court judges.
Today’s per curiam opinion says it is perfectly acceptable for a Governor in the last
days of his or her administration to grant commutations to whomever he or she
desires without first awaiting the APA investigation and report. The basis of such
a holding is that the Constitution does not specifically authorize regulations “as to
the manner of applying for commutations.” As a result, only full and absolute
pardons are “subject to” any regulations enacted by the General Assembly.
{¶ 55} The per curiam opinion misconstrues Section 11, Article III and in
the process engages in an inaccurate interpretation of the scope of the Governor’s
pardoning power.6 While I agree that the pardon purportedly granted by former
Governor Celeste should be invalidated, it is clear to me that the commutations he
purportedly granted also should fail for the very same reason advanced for the
failure of the pardon.
{¶ 56} The per curiam opinion proclaims that Section 11, Article III is
unambiguous, and essentially ends its analysis of the “subject to” clause at that
point. However, this case involves constitutional interpretation which is not readily
6. It is appropriate to refer to the Governor’s “pardoning power” synonymously with “clemency
power.” The power to commute has historically been understood to be an aspect of the pardoning
power. For a thorough discussion of the development and scope of the pardoning power of the
President of the United States, see Hoffa v. Saxbe (D.D.C.1974), 378 F.Supp. 1221.
22
January Term, 1994
resolvable by resort solely to hornbook rules of construction, as if in a vacuum, but
must be considered with an eye on the historical context underlying Section 11,
Article III’s evolution into its current form. The per curiam opinion, in focusing
on a supposed semantical difference between pardons and commutations, does not
grasp the importance of this historical development, and thereby fails to
comprehend the entire scope of this issue. Section 11, Article III is certainly
capable of more than one interpretation, and the reference to the “manner of
applying for pardons” is not so clear as the per curiam opinion rashly presumes.
Given that the constitutional provision is ambiguous, resort to constitutional history
is not only appropriate, it is crucial. Even a cursory consideration of constitutional
history reveals that the per curiam opinion is erroneous.
{¶ 57} The drafters of Section 11, Article III were concerned with precisely
the type of abuse of pardoning power which former Governor Celeste accomplished
in his last days in office. As this case graphically illustrates, the power to commute
is just as easily abused as is the power to pardon. Former Governor Celeste
intentionally bypassed established procedures and flouted the constitutional limits
on his clemency authority, ignoring the procedural safeguards the Constitution
authorizes the General Assembly to put into place regarding the application process
for executive clemency. Members of this court are unwilling to give effect to the
binding statutory prerequisite for exercise of the clemency power, finding that an
APA investigation and recommendation (along with the accompanying required
notifications relating to victims’ rights) are conditions precedent for the Governor’s
grant of a pardon, but that no APA involvement is necessary for a commutation.7
7. With respect to the manner in which the Ohio Adult Parole Authority functions, the trial court
found as follows:
“When the APA receives a clemency application, the application is referred to the
investigation section of the APA, which prepares a report on the details of the crimes, the applicant’s
adjustment to prison or the community, and the support available to the applicant in the community.
When the completed investigation report is received by the Parole Board, an initial vote is taken
whether to immediately recommend against granting clemency or to conduct a hearing. If a hearing
23
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{¶ 58} This seems an especially curious result when one considers that both
the pardon and the commutation are aspects of the Governor’s clemency power,
which has as its source Section 11, Article III. Given the per curiam opinion, when
the Governor considers whether to pardon an applicant for clemency, the Governor
must wait until the APA process is complete before acting, but if the Governor
contemplates a commutation, in the alternative, for that same applicant, the
procedural investigation safeguards of the APA can be ignored. The near
schizophrenic result engendered by the per curiam opinion makes the point better
than any other argument that the Constitution does in fact authorize the General
Assembly to regulate the application process for executive clemency, and allows
that body to require APA involvement to ensure that the Governor is able to make
an informed clemency decision, whether the Governor is considering a pardon or a
commutation.
{¶ 59} In order to underscore the magnitude of this case, a brief
recapitulation of the circumstances of each defendant’s criminal conviction is in
order and appropriate.
A
is to be conducted, notice is sent to the local Prosecutor, the sentencing Judge, and those victims or
victims’ family members designated to receive notice by R.C. §§ 4943.04(A) and 2945.07(A), and
as required by R.C. § 2967.12(A) and (B). These obviously interested individuals are then given
the opportunity to submit comments to the APA on whether the applicant should receive clemency.
Generally, these individuals are allowed three weeks’ time within which to respond to the APA
notice. At the hearing, consisting of a panel of at least a majority of the members of the Parole
Board, the Board will consider the investigation, the microfiche records of the Ohio Department of
Rehabilitation and Corrections, and the testimony of the applicant. After a vote is taken, a report
is then prepared for the signature of the board members. See R.C. §§ 2967.07 and 2967.12. Usually,
there is a two to three week delay after the vote is taken to circulate the recommendations among
the voting Board members, who travel to each of Ohio’s 22 penal institutions attending hearings.
After signature, the APA submits the written report to the Governor which includes a brief statement
of the facts in the case, together with the recommendation of the APA. In such instances that an
application is submitted directly to the Governor, it is still required to be channeled back through
the APA review process pursuant to R.C. § 2967.07.”
24
January Term, 1994
{¶ 60} Donald Lee Maurer confessed to the killing of seven-year-old Dawn
M. Hendershot. The evidence presented at trial revealed that on September 29,
1982, Maurer drove to a school in Massillon, Ohio, to pick up his stepchildren and
a few neighborhood children at the end of the school day. Dawn Hendershot was
the first to arrive. Rather than wait for the other children to appear, Maurer decided
to depart alone with Dawn. Maurer drove Dawn out into the country to a wooded
area, where he stopped the vehicle, removed a twelve-gauge shotgun, and led Dawn
into the trees. He then began to sexually molest the girl. At some point Maurer
became frightened by his actions and attempted to strangle Dawn with her sweater.
When she started to struggle, Maurer shot Dawn in the back, covered her lifeless
body with twigs and leaves, and left the scene to return to his home.
{¶ 61} A jury found Maurer guilty of aggravated murder with a
specification, kidnapping, and gross sexual imposition. The trial court adopted the
jury’s recommendation that the defendant be executed. His conviction and
sentence were affirmed on direct appeal to the court of appeals and this court. See
State v. Maurer (Feb. 13, 1984), Stark App. No. CA-6166, unreported, 1984 WL
4469, affirmed (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768. On
January 10, 1991, former Governor Celeste purportedly commuted Donald
Maurer’s death sentence to life imprisonment without parole eligibility.
B
{¶ 62} Leonard Jenkins was convicted of aggravated murder with
specifications, eight counts of robbery, one count of attempted murder and five
counts of kidnapping. The convictions stemmed from a robbery that occurred in
Cuyahoga County, Ohio, on October 21, 1981. Jenkins and another individual
entered a branch office of National City Bank and held bank employees and patrons
at gunpoint. During the robbery, Jenkins observed a police officer, Anthony
Johnson, approach the front door of the bank and peer inside. Upon seeing the
officer, Jenkins stated that he and his partner would have to shoot their way out of
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the bank. Officer Johnson was mortally injured by a gunshot to the head when
Jenkins exited the bank and the two exchanged gunfire. A jury recommended and
the trial court imposed a sentence of death. His conviction and sentence were
affirmed on direct appeal to the court of appeals and to this court. See State v.
Jenkins (Feb. 24, 1984), Cuyahoga App. No. 45231, unreported, 1984 WL 14150,
affirmed (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264. On January 10,
1991, former Governor Celeste purportedly commuted Jenkins death sentence to
life imprisonment without parole eligibility.
C
{¶ 63} A jury convicted Debra Brown of the murder of fifteen-year-old
Tonnie Storey. The evidence showed that on the morning of July 11, 1984, Tonnie
left her home in Cincinnati to attend summer school. She was last seen on that day
with a man identified as Alton Coleman and a woman matching Brown’s
description. On July 19, 1984, a realtor entered an abandoned building that he was
preparing to show to a prospective buyer and found a partially decomposed body.
Scrawled above the body on the wall were the words “I hate niggers death.” Police
ultimately identified the body as that of Tonnie Storey. The evidence presented
during trial included Brown’s fingerprints on a Michael Jackson button Tonnie had
been wearing the day she disappeared. Brown admitted to another individual that
she had killed Tonnie “for her clothes” and that she, Brown, “had to do what [she]
had to do.” The state further introduced evidence linking Brown to at least five
other murders and several other attempted murders or assaults. After finding
Brown guilty of Tonnie’s murder, the jury recommended and the trial judge
imposed a sentence of death. Her conviction and sentence were affirmed in a direct
appeal to the court of appeals and to this court. See State v. Brown (Apr. 15, 1987),
Hamilton App. No. C-850434, unreported, 1987 WL 9743, affirmed (1988), 38
Ohio St.3d 305, 528 N.E.2d 523. On January 10, 1991, former Governor Celeste
26
January Term, 1994
purportedly commuted Brown’s death sentence to life imprisonment without parole
eligibility.
D
{¶ 64} On the morning of August 5, 1983, Willie Lee Jester entered an
AmeriTrust Company branch office in Cleveland, Ohio, soon after it opened for the
day. Jester approached Patrolman Benjamin Grair, the bank’s security guard, while
he was sitting at a desk speaking on the telephone and shot him in the chest. Jester
then ran to the bank counter, leaped over it, and took a total of $3,122 from a teller’s
drawer. Patrolman Grair died as a result of the gunshot wound to his torso. The
fatal injuries to his heart, right lung and liver were caused by a single, hollow-point
bullet—a bullet specifically designed to cause more damage than a smooth-point
bullet. Upon finding Jester guilty of aggravated murder with two specifications,
the jury recommended and the trial court imposed a sentence of death. The
conviction and sentence were affirmed in a direct appeal to the court of appeals and
to this court. See State v. Jester (Sept. 26, 1985), Cuyahoga App. No. 49065,
unreported, 1985 WL 8631, affirmed (1987), 32 Ohio St.3d 147, 512 N.E.2d 962.
On January 10, 1991, former Governor Celeste purportedly commuted the death
sentence to life imprisonment without parole eligibility.
E
{¶ 65} A three-judge panel in Hamilton County convicted and sentenced
Elizabeth Green to death for aggravated murder and to a consecutive term of ten to
twenty-five years for aggravated robbery. The convictions stemmed from the
killing and robbery of Thomas Willis, a neighbor of one of Green’s friends, Belinda
Coulter. On January 4, 1988, Coulter sold Willis some food stamps so that she and
Green could in turn use the cash to purchase drugs. Later that day, Green, with
Coulter, entered Willis’s apartment wearing socks on her hands so as to avoid
leaving any fingerprints. Green then stabbed Willis and took his money. Thomas
Willis died as a result of one hundred nine knife wounds to his neck, torso and arms.
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Green admitted to a psychologist that she had participated in the attack but claimed
she had stabbed Willis only three times. Green’s conviction and sentence of death
were affirmed in a direct appeal to the court of appeals and to this court. See State
v. Green (July 11, 1990), Hamilton App. No. C-880504, unreported, 1990 WL
95357, affirmed (1993), 66 Ohio St.3d 141, 609 N.E.2d 1253. On January 10, 1991,
former Governor Celeste purportedly commuted Green’s death sentence to life
imprisonment without parole eligibility.
F
{¶ 66} A jury convicted Lee “Crazy Horse” Seiber of aggravated murder
with three death penalty specifications in connection with the killing of Stanton
Norris. On May 21, 1985, Seiber entered a Columbus bar for the second time that
evening, carrying a loaded, cocked .38 caliber revolver. An accomplice stood at
the closed front door, shotgun in hand, barring anyone from leaving. Seiber had
returned to the bar to confront two men, Alvie and Louis Schoenberger, one of
whom had criticized Seiber during his earlier visit for making lewd remarks to a
woman in the bar. After forcing the brothers to lie face down on the floor and
holding them at gunpoint, Seiber threatened the crowd and tried to find out who
were friends of the Schoenbergers. Stanton Norris, who was drinking a beer at the
bar, admitted to being a friend of the Schoenbergers. When Norris refused to
comply with his order to lie face down on the floor, Seiber grabbed Norris by the
shoulders and fatally shot him in the back. The jury recommended and the trial
court imposed a sentence of death. Seiber’s conviction and sentence were affirmed
on direct appeal to the court of appeals and to this court. See State v. Seiber (June
8, 1989), Franklin App. No. 87AP-530, unreported, 1989 WL 61733, affirmed
(1990), 56 Ohio St.3d 4, 564 N.E.2d 408. On January 10, 1991, former Governor
Celeste purportedly commuted the death sentence to life imprisonment without
parole eligibility.
G
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January Term, 1994
{¶ 67} Rosalie Grant was convicted by a jury of two counts of aggravated
murder, each with two death penalty specifications, and one count of aggravated
arson. The evidence presented at trial revealed that around 6:00 a.m. on April 1,
1983, a fire ignited in the bedroom of Grant’s two infant sons, one-year-old
Donovan and two-year-old Joseph. The boys died in the fire as a result of severe
burns and smoke inhalation. Grant, however, escaped from the burning house
entirely unharmed, fully dressed in pants, jacket, shoes and socks, with unsinged
hair, no soot on her face or eyes, and free of any signs of smoke inhalation. Other
than Grant’s claim that she had tried to save her babies when the smoke first awoke
her, there was no evidence presented that Grant had attempted to put out the fire or
to save the children. Arson investigators determined that the fire had been
intentionally set and fueled by a liquid accelerant. No determination was made as
to the exact type of accelerant that had been used. The evidence also revealed that
approximately two weeks before the fire, Grant had purchased $5,000 worth of life
insurance for each of the boys with Grant listed as the beneficiary. Grant had not
purchased a policy for herself or for her three-year-old daughter Shylene, who was
living elsewhere. Furthermore, a can of charcoal lighter fluid, bearing Grant’s
fingerprints, and a partially burned kitchen chair matching those in Grant’s home
were found four days after the fire in a nearby vacant house. The conviction and
sentence were affirmed on direct appeal to the court of appeals and to this court.
See State v. Grant (Nov. 9, 1990), Mahoning App. No. 83 C.A. 144, unreported,
1990 WL 176825, affirmed (1993), 67 Ohio St.3d 465, 620 N.E.2d 50. On January
10, 1991, former Governor Celeste purportedly commuted Grant’s death sentence
to life imprisonment with no restriction as to parole eligibility.
H
{¶ 68} According to the court of appeals’ opinion, in May 1979, Ralph F.
DeLeo pled guilty to the murder of Dr. Walter Bond. After pleading guilty, DeLeo
was immediately sentenced to an indefinite term of fifteen years to life
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imprisonment. In 1989, the court of appeals affirmed the trial court’s dismissal of
DeLeo’s petition for enforcement of a plea bargain as to parole, or, in the
alternative, a petition to vacate the conviction and sentence. See State v. DeLeo
(Sept. 19, 1989), Franklin App. No. 89AP-107, unreported, 1989 WL 107559. On
January 10, 1991, former Governor Celeste purportedly commuted DeLeo’s
sentence to time served.
I
{¶ 69} A jury convicted John Salim of felonious assault with violence and
gun specifications in connection with an incident that occurred on January 23, 1988.
The evidence, as set forth in the court of appeals’ opinion, showed that on that date
Salim fired a gun at William Terbrack as the latter prepared to drive out of a
hardware store parking lot. A bullet was retrieved from the window post on the
passenger side of Terbrack’s car. Salim was sentenced to three years’ actual
incarceration for the gun specification to be served prior to a three-to fifteen-year
term for felonious assault. The conviction and sentence were affirmed on appeal
to the court of appeals. See State v. Salim (May 17, 1990), Cuyahoga App. Nos.
56925 and 57964, unreported, 1990 WL 66467. On January 10, 1991, former
Governor Celeste purportedly granted Salim a full pardon. As the above facts
indicate, among those who purportedly received clemency from former Governor
Celeste were some of the most notorious killers on death row. Celeste made the
clemency decisions without awaiting the APA investigation and report. Yet, given
the per curiam opinion, only the unfortunate John Salim, who supposed he had
received a full pardon (as opposed to a commutation), must pay the price for
Celeste’s wholesale disregard of the Constitution.
II
{¶ 70} While I agree with the per curiam opinion that Section 11, Article
III of the Ohio Constitution authorizes the General Assembly to prescribe
procedural regulations as to the application process for executive clemency, my
30
January Term, 1994
interpretation of Section 11, Article III convinces me that the authority granted by
the “subject to” clause to regulate “the manner of applying for pardons” includes
commutations. The per curiam opinion pays lip service to the history behind the
evolution of current Section 11, Article III, without realizing the consequences of
that evolution. A thoughtful analysis of the addition of the “subject to” requirement
of the Ohio Constitution should include consideration of the reason that clause was
added. The per curiam opinion fails to consider and put into effect the intention of
the drafters of Section 11, Article III.
{¶ 71} At the 1850-1851 Ohio Constitutional Convention, the debate on
Section 11, Article III was limited to the so-called reporting requirement, the last
sentence of Section 11, Article III. A delegate, Mr. Riddle, commenting on the
insertion of the clause, stated: “It was known that the exercise of [the pardoning]
power was much complained of. * * * [I]t was but too easy to excite the sympathies
of men in behalf of the convicted criminal. Gentlemen of the committee were aware
from their own experience that they had often put their names to papers soliciting
reprieves and pardons on the representation of persons, in whom they had
confidence. They knew also that persons in the same manner might influence the
governor; and they further knew that on the strength of that influence brought to
bear on him by the names of persons standing high in society he often exercised
that power in instances in which the public could not see any propriety. The power,
no doubt, had been abused, but when they looked into the entire matter they would
find that no blame could be attached to the Governor.” 1 Report of the Debates and
Proceedings of the Convention for the Revision of the Constitution of the State of
Ohio 1850-1851(1851) 306-307.
{¶ 72} In choosing to alter its constitutional provision on executive
clemency, Ohio adopted a provision remarkably similar to that incorporated by the
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state of New York into its Constitution of 1846.8 Only a brief discussion of the
New York debates is necessary to illustrate that Ohio’s drafters of Section 11,
Article III must have been motivated by the same concerns as New York’s drafters
when they decided to place restrictions on the Governor’s pardoning power. The
recorded proceedings of the New York Constitutional Convention which authored
the provision altering that state’s executive pardoning powers reveal that the
provision was extensively debated. In particular, several amendments were offered
relative to restrictions on the Governor’s pardoning power, including one, by a Mr.
Chatfield, that would have greatly curtailed the Governor’s pardoning power by
making it subject to “such restrictions as may be prescribed by law.” Report of the
Debates and Proceedings of the Convention for the Revision of the Constitution of
the State of New York (1846) 351. This Chatfield amendment ultimately was
rejected, id. at 353, and the wording “subject to such regulations as may be provided
by law relative to the manner of applying for pardons,” proposed by Mr. Taylor,
was adopted. In support of his position, Mr. Taylor “agreed that there should be
some conditions relative to the manner of applying the power, and he would offer
an amendment to carry his idea out in relation to that. This would leave the
8. Section 5, Article IV of the New York Constitution of 1846 provided:
“The governor shall have the power to grant reprieves, commutations, and pardons after
conviction, for all offenses except treason and cases of impeachment, upon such conditions and with
such restrictions and limitations, as he may think proper, subject to such regulation as may be
provided by law relative to the manner of applying for pardons. * * * He shall annually communicate
to the legislature each case of reprieve, commutation, or pardon granted, stating the name of the
convict, the crime of which he was convicted, the sentence and its date, and the date of the
commutation, pardon or reprieve.” New York State Constitution Annotated (1938) 54.
When Ohio’s Constitutional Convention of 1850-1851 discussed the substance of what was
to become Section 11, Article III of the Constitution of 1851, the Standing Committee on the
Executive Department presented for debate a draft version on executive clemency which very
closely resembled Section 5, Article IV of the New York Constitution of 1846. For the language of
this draft version, see 1 Report of the Debates and Proceedings of the Convention for the Revision
of the Constitution of the State of Ohio 1850-1851 (1851) 300. The text of the draft version is
reproduced in footnote 6 of this opinion.
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Legislature to provide rules for its carrying out, leaving the exercise of the power
entirely with the Governor.” Id. at 357.
{¶ 73} Since the “subject to” clause of Section 11, Article III of the Ohio
Constitution mirrors so closely the language of New York’s comparable section, it
is fair to assume that the Ohio delegates of 1850-1851 shared New York’s concerns
about abuses of the pardoning power, while also sharing the conviction of New
York’s delegates that the Governor’s ultimate discretion to exercise the pardoning
power should not be infringed. The “subject to” clause is a compromise which
reflects those concerns.
{¶ 74} Ohio’s 1802 Constitution, in Section 5, Article II, gave the Governor
“the power to grant reprieves and pardons.” No mention of commutations was
included in this authorization. The word “commutations” was added in 1851 to
Section 11, Article III at the Constitutional Convention of 1850-1851, which also
added the “subject to” clause at the end of the same sentence.
{¶ 75} “The terms ‘pardon’ and ‘reprieve’ have been adopted into the
constitution of this state without defining or explaining them.” Sterling v. Drake
(1876), 29 Ohio St. 457, 460. Just as “pardon” and “reprieve” are not defined in
the Constitution, “commutation” also is not defined, so that we must look to the
common law for its meaning. Although current statutes define these terms,9 those
9. R.C. 2967.01(B) provides:
“‘Pardon’ means the remission of penalty by the governor in accordance with the power
vested in him by the constitution. Pardons may be granted after conviction and may be absolute and
entire, or partial, and may be granted upon conditions precedent or subsequent.”
R.C. 2967.01(C) provides:
“‘Commutation’ or ‘commutation of sentence’ means the substitution by the governor of a
lesser for a greater punishment. A sentence may be commuted without the consent of the convict,
except when granted upon the acceptance and performance by the convict of conditions precedent.
After commutation, the commuted sentence shall be the only one in existence. The commutation
may be stated in terms of commuting from a named crime to a lesser included crime, in terms of
commuting from a minimum and maximum sentence in months and years to a minimum and
maximum sentence in months and years, or in terms of commuting from one definite sentence in
months and years to a lesser definite sentence in months and years.”
R.C. 2967.01(D) provides:
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statutory definitions do not necessarily control the consideration of their meanings
in the Constitution.
{¶ 76} In State ex rel. Gordon v. Zangerle (1940), 136 Ohio St. 371, 375,
16 O.O. 536, 538, 26 N.E.2d 190, 194, the court considered the “scope of the
executive power” conferred by Section 11, Article III, determining that the
common-law meaning of the terms “reprieves” and “commutations” are “not
materially different” from the statutory definitions (which are the same today).
Thus, the court noted, a reprieve was defined as “‘the temporary suspension by the
Governor of the execution of a sentence,’10 and commutation of sentence as ‘the
substitution of a lesser for a greater punishment.’” Id.
{¶ 77} The Gordon court went on to consider the definition of “pardon” and
the different forms of pardon:
“A pardon may be absolute or conditional, full or partial; and a conditional
pardon may be granted upon conditions precedent or subsequent.
“‘Reprieve’ means the temporary suspension by the governor of the execution of a
sentence. A reprieve may be granted without the consent of and against the will of the convict.”
10. I agree that reprieves do not fall within the broader meaning of “pardons.” Reprieves and
pardons are recognized as being fundamentally different at common law because a reprieve is
temporary. However, pardons and commutations are not recognized as fundamentally different at
common law, but are interrelated concepts. Even though the power to grant reprieves often is said
to come within the scope of the Governor’s pardoning power, a constitutional provision allowing
procedural regulation of “the manner of applying for pardons” does not allow for regulation of the
manner of applying for reprieves. Because of this fundamental difference between reprieves and
pardons, Section 5, Article II of Ohio’s 1802 Constitution, and Section 2, Article II of the United
States Constitution each conferred upon the executive the power to grant both reprieves and pardons.
The General Assembly has recognized the fundamental difference between pardons and
reprieves. R.C. 2967.08 provides that “[t]he governor may grant a reprieve for a definite time to a
person under sentence of death, with or without notices or application.” This provision obviously
recognizes the importance of prompt action in some reprieve cases and makes clear that procedural
requirements need not be fulfilled before a reprieve may be granted. In addition, R.C. 2967.03,
authorizing the Adult Parole Authority to recommend a pardon, commutation, or reprieve to the
Governor, provides procedural requirements which must be fulfilled before the authority may
recommend a pardon or commutation, but any such requirements regarding the recommendation of
a reprieve are conspicuously absent.
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“A full pardon purges away all guilt and leaves the recipient from a legal
standpoint, in the same condition as if the crime had never been committed (Knapp
v. Thomas, 39 Ohio St., 377, 381, 48 Am. Rep., 462); a partial pardon releases from
punishment without remission of guilt. Lee v. Murphy, 63 Va. (22 Gratt.), 789, 12
Am. Rep., 563. The essential characteristics of full and partial pardons are such
that either may be granted with or without conditions. * * *
“An absolute pardon sets the accused free from the custody of the law,
prevents further court action, terminates existing probation and makes anticipated
probation impossible. * * *
“The power of executive pardon carries with it, as incidental thereto, the
right to impose such valid conditions, precedent or subsequent, as the pardoning
power may determine.* * *” Gordon, 136 Ohio St. at 376-377, 16 O.O. at 538, 26
N.E.2d at 194.
{¶ 78} The per curiam opinion appears to equate “pardon” with “full and
unconditional pardon.” However, as the passage from Gordon illustrates, the word
“pardon” encompasses several concepts. A “full and unconditional” pardon, which
purges all guilt and places the recipient in the same position as if no crime had been
committed, is only one subset of the several types of pardons. Another type of
pardon, a “partial” pardon, which releases from punishment without remitting guilt,
appears to be virtually synonymous with a “commutation,” which substitutes a
lesser for a greater punishment, but does not remit guilt. Any definition of “pardon”
which limits its meaning to clemency actions of the Governor that remit guilt is a
narrow definition. While this narrow definition may appropriately be applied in
some situations, the common-law meaning of “pardon,” when applied in the
broader sense, also can easily encompass the concept of commutation, so that
commutation is a subset of pardon.
{¶ 79} The per curiam opinion’s citation of State ex rel. Atty. Gen. v. Peters
(1885), 43 Ohio St. 629, 4 N.E. 81, does not establish that pardons and
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commutations are in all cases mutually exclusive terms. In fact, the per curiam
opinion includes Peters’s definition of pardon among the material quoted from that
case: “A pardon discharges the individual designated from all or some specified
penal consequences of his crime. It may be full or partial, absolute or conditional.”
(Emphasis added.) Id. at 650, 4 N.E. at 87. By the Peters definition, a partial
pardon (which discharges the individual from “some * * * penal consequences of
his crime”) is a pardon just as a “full and absolute pardon” is a pardon. The very
language quoted belies the per curiam opinion’s conclusion. The constitutional
meaning of “pardon,” as well as the common-law meaning of the word, is by no
means precise. It is not possible, as the per curiam opinion attempts, to conclude
that pardons and commutations are two totally distinct concepts. Recognition of
the ambiguity in the word “pardon” instead leads to the conclusion that
commutation is a subset of pardon when pardon is used in the inclusive sense, and
that the “subject to” clause clearly does provide the authority to regulate
commutations.
{¶ 80} In this case, defendant Ralph DeLeo purportedly received a
commutation to time served, while defendant John Salim purportedly received a
full pardon. The per curiam opinion upholds DeLeo’s purported commutation, but
invalidates Salim’s purported full pardon. Yet, under the definition of “pardon” set
forth in Peters and in Gordon, what DeLeo purportedly received could just as easily
be termed a partial pardon, in which case, presumably according to the per curiam
opinion, Governor Celeste would have had to await the APA investigation and
recommendation before granting clemency to time served. This point, as much as
any other, belies the per curiam opinion’s assertion that the word “pardon” is used
with precision throughout Section 11, Article III.
{¶ 81} When Section 11, Article III was adopted in 1851 and the power of
commutation was specifically mentioned as one of the Governor’s clemency
powers, the delegates to the Constitutional Convention of 1850-1851 were either
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conferring a new power for the Governor to exercise, or they were explicitly
conferring a power which had been implicit in the 1802 Constitution’s conferral of
the power to grant pardons. If the delegates were conferring a new power, then it
would be safe to assume that the power to grant commutations was considered to
be something different from the power to grant pardons, and was not to be made
subject to regulations “as to the manner of applying for pardons.” But if the
delegates were confirming a power which already existed under the power to grant
pardons, then it may be fairly concluded that the use of the phrase “as to the manner
of applying for pardons” in the “subject to” clause was meant to include the
commutation power. If the latter is the case, and if the word “pardon” is broad
enough to encompass the word “commutation” in this way, then Section 11, Article
III uses “pardon” in two senses: in a limited way as one aspect of the clemency
powers in the first clause of the first sentence of Section 11, Article III, and also, in
the “subject to” clause, in an expansive way that includes the concept of
“commutation.”
{¶ 82} The records of the debates of the Ohio Constitutional Convention of
1850-1851 give no insight into why the “subject to” clause of Section 11, Article
III uses the words “as to the manner of applying for pardons,” or into whether
Section 5, Article II of the Ohio Constitution of 1802 conferred on Ohio’s Governor
the power to commute sentences.
{¶ 83} However, the discussions regarding the addition of the reporting
requirement to the executive clemency provision of the Constitution at the 1850-
1851 Constitutional Convention do reveal that many of the delegates
indiscriminately used the term “pardon” to refer generically to the Governor’s
clemency power.
{¶ 84} One delegate, Mr. Riddle, stated that “[t]he [Executive Department]
committee inserted that clause [the reporting requirement] into the report for the
purpose, that the legislature at its annual or biennial sessions might know what the
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Governor had done during the vacation in the exercise of the pardoning power.”
(Emphasis added.) 1 Debates and Proceedings, supra, at 306. Because the
reporting requirement as proposed required the Governor to communicate “each
case of reprieve, commutation, or pardon granted,” id. at 300,11 Mr. Riddle thus
used the inclusive term “pardoning power” to refer to the power to grant any type
of executive clemency.
{¶ 85} Similarly, another delegate, Mr. McCormick, thought that the
provision requiring the Governor to report each reprieve, commutation, or pardon
granted “required nothing to be communicated to the Legislature except the names
of the persons pardoned. If men had interfered improperly in getting reprieves for
criminals, there was nothing in that section as it now stood, which required the
naming of the persons who interfered to obtain it * * *. The only object to be gained
by this section was the ascertainment of the number of prisoners pardoned * * *.”
(Emphasis added.) Id. at 307. Mr. McCormick thus used the word “pardon” in a
broad sense to refer to any act of executive clemency.
{¶ 86} Another delegate, Mr. Stanton, opposed a proposal to further require
the Governor to report the names of all persons who had applied for a reprieve,
pardon or commutation. “He supposed that the latter part of the section was
intended for the purpose of making the Governor accountable to the people for the
11. As reported by Mr. Leadbetter from the Standing Committee on the Executive Department, the
provision later incorporated into the Constitution of 1851 as Section 11, Article III originally read:
“Sec. 11. The Governor shall have the power to grant reprieves, commutations and pardons
after conviction, for all offenses, except treason, and cases of impeachment, upon such conditions,
and such restrictions and limitations as he may think proper, subject to such regulations as may be
provided by law, relative to the manner of applying for pardons. Upon conviction for treason, he
shall have power to suspend the execution of the sentence, until the case shall be reported to the
Legislature at its next meeting, when the Legislature shall either pardon, commute the sentence,
direct the execution of the sentence, or grant a further reprieve. He shall annually communicate to
the Legislature each case of reprieve, commutation, or pardon granted; stating the name of the
convict, the crime for which he was convicted, the sentence and its date, and the date of the
commutation, pardon or reprieve.” 1 Debates and Proceedings, supra, at 300.
The report of the Executive Committee reached its present form as Section 11, Article III
after proposed amendments to the committee report were debated by the delegates and voted on.
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exercise of the pardoning power, and to inform them whom he had pardoned.”
(Emphasis added.) Id.
{¶ 87} Yet another delegate, Mr. Larwill, stated that “[t]he Governor would
no doubt have good reasons for exercising the pardoning power.” (Emphasis
added.) Id.
{¶ 88} These delegates’ statements persuasively refute defendants’
argument that the framers of Section 11, Article III used the word “pardon” in a
narrow sense that did not include the concept of commutation. Many of the
delegates at the Constitutional Convention of 1850-1851 used “pardoning power”
to mean clemency power. Furthermore, the word “pardon” was used to refer to any
executive exercise of the clemency power.
{¶ 89} Not long after Ohio (in 1851) had amended its Constitution’s
executive clemency provision to specifically include the power to grant
commutations, the United States Supreme Court decided Ex Parte Wells (1855), 59
U.S. (18 How.) 307, 15 L.Ed. 421. In the words of the court:
“The petitioner was convicted of murder in the District of Columbia, and
sentenced to be hung on the 23d of April, 1852. President Fillmore granted to him
a conditional pardon. The material part of it is as follows: ‘For divers good and
sufficient reasons I have granted, and do hereby grant unto him, the said William
Wells, a pardon of the offense of which he was convicted—upon condition that he
be imprisoned during his natural life; that is, the sentence of death is hereby
commuted to imprisonment for life * * *.’” Id. at 308, 15 L.Ed. at 423.
{¶ 90} Wells petitioned for a writ of habeas corpus, pointing out that
Section 2, Article II of the United States Constitution authorizes the President to
grant pardons and reprieves, but does not explicitly authorize the President to place
conditions upon a grant of pardon. Wells argued that Section 2, Article II
authorizes only absolute pardons, and that since he had been pardoned under the
authority conferred by that section, he must have received such an absolute pardon
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with a void condition, so that his sentence actually was remitted entirely. Id. at 309,
15 L.Ed. at 423. The Circuit Court of the District of Columbia refused the
application, and the Supreme Court affirmed.
{¶ 91} The court in Ex parte Wells determined that the President’s power to
grant “conditional pardons”12 (commutations) was implicit within the power to
grant “reprieves and pardons” conferred by Section 2, Article II of the United States
Constitution. In so determining, the court found that the petitioner’s argument was
mistaken, “arising from the want of due consideration of the legal meaning of the
word pardon. It is supposed that it was meant to be used exclusively with reference
to an absolute pardon, exempting a criminal from the punishment which the law
inflicts for a crime he has committed.” 59 U.S. (18 How.) at 309, 15 L.Ed. at 423.
{¶ 92} The Ex parte Wells court determined that the word “pardon” is not
so narrow as to include only an “absolute pardon”: “In the law it has different
meanings, which were as well understood when the Constitution was made as any
other legal word in the Constitution now is.” Id. at 310, 15 L.Ed. at 423. The court
went on to state that “[i]n this view of the constitution, by giving to its words their
proper meaning, the power to pardon conditionally is not one of inference at all,
but one conferred in terms.
12. The court of appeals in the case sub judice went to some lengths to distinguish between a
commutation and a conditional pardon, basing the distinction in part upon the necessity of
acceptance by the recipient before a conditional pardon is valid. However, one major factor that
separates the two is the attachment of a condition, which is what makes a conditional pardon
“conditional.” In the same way that a pardon can have a condition attached, a commutation can also
be subject to a condition. It is when the condition is attached that the recipient must consent before
the conditional pardon or conditional commutation is effective. No consent is required when no
condition is attached to the pardon or commutation. In re Victor (1877), 31 Ohio St. 206, paragraph
three of the syllabus, recognized that in Ohio, a commutation is not the same as a conditional pardon,
even though the Ex parte Wells court stated that it was for purposes of interpreting the United States
Constitution. Since Victor presumed that a commutation is “for the culprit’s benefit,” no acceptance
of an unconditional commutation is required for its validity. See 31 Ohio St. 206, at paragraph three
of the syllabus.
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January Term, 1994
{¶ 93} “The mistake in the argument is, in considering an incident of the
power to pardon the exercise of a new power, instead of its being a part of the power
to pardon.” Id. at 315, 15 L.Ed. at 425.
{¶ 94} If the United States Supreme Court determined in 1855 that the
President’s power to commute a sentence is implicit in the power to pardon, it is
reasonable to assume that Ohio’s Governors operating under the authority of the
state’s 1802 Constitution also had the implicit power to commute sentences, since
the 1802 Ohio Constitution’s provision on executive clemency closely resembled
that of the United States Constitution. The delegates to the 1850-1851
Constitutional Convention therefore did not add a totally new power to the
Constitution by adding the word “commutations” in adopting Section 11, Article
III, but affirmed a power the Governor already possessed.13
{¶ 95} It is apparent that the inclusion of “commutations” in the first line of
Section 11, Article III as one of the Governor’s clemency powers was done to quiet
doubt that the power to pardon was so limited that it did not include the power to
commute. The meaning of “pardon” was not thereby magically altered into some
precise word with only one connotation. The statements of the delegates to the
1850-1851 Constitutional Convention indicate the imprecision of the word
“pardon.” In addition, R.C. 2967.01(B)’s provision that pardons may be “partial,”
and the Peters and Gordon courts’ recognition of partial pardons, further
demonstrate that a “full and absolute pardon” is only one type of pardon, and that
there is an overlap between the generic sense of the word “pardon” and the concept
13. One researcher has determined that the power to commute is implicit within the power to
pardon:
“The [Ohio] Constitutional Convention of 1851 added the term ‘commutation’ to the
pardon provision in present section 11 of Article III. However, the term ‘commutation,’ although
not used in early constitutions, has long been interpreted as being included within pardon, and texts
have often not disassociated the power to commute from the power to pardon.” 3 Ohio
Constitutional Revision Commission 1970-1977, Proceedings & Research of the Legislative-
Executive Committee (Mar. 31, 1972), Research Study No. 11.
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of commutation. Thus, since the power of commutation can be understood to be
contained within the power to pardon (in its broad sense) Section 11, Article III’s
provision that the Governor’s power to commute (as well as to pardon) is “subject
* * * to * * * regulations, as to the manner of applying for pardons” is broad enough
to include regulations as to the manner of applying for commutations.
{¶ 96} In short, even though the power to grant commutations may be a
power distinct from the power to grant pardons, the common-law meaning of
“pardon” included “commutation.” Section 11, Article III clearly subjects the
Governor’s power to grant commutations, as well as the Governor’s power to grant
pardons, to authorized regulations. Hence the Governor’s power to grant
commutations pursuant to Section 11, Article III is subject to regulations enacted
by the General Assembly as to the application process.
{¶ 97} Defendants argue that the omission of the word “commutations”
from the “subject to” clause of Section 11, Article III reflects a conscious decision
by the drafters to make only the manner of applying for pardons, and not
commutations, subject to regulation. Defendants claim that a pardon, because it
remits guilt as well as punishment so that the recipient is in the same position as if
no crime had been committed, is the ultimate act and was meant to be singled out.
They further claim that a commutation, which merely reduces punishment without
remitting guilt, is a lesser degree of clemency and so was intentionally left out of
the “subject to” clause.
{¶ 98} Defendants’ reasoning is specious. Although a “full and
unconditional” pardon is the ultimate pardon, whether a commutation differs
greatly from a pardon is in the eye of the beholder. To the recipient of a full and
unconditional pardon, that pardon is much different from a commutation (even a
commutation to time served, which would also remit punishment) because the full
pardon relieves the recipient of disabilities associated with the finding of guilt and
wipes the record clean. However, to society as a whole, there is virtually no
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difference between a commutation to time served and a full pardon. As mentioned
earlier, defendant DeLeo in this case was purportedly granted a commutation to
time served, and defendant Salim was purportedly granted a full pardon, yet the
action of Governor Celeste allowed both offenders to receive clemency despite the
determination of guilt in the judicial system which led to the imposition of the
original longer terms of punishment. Although some of the purported
commutations in this case reduced a death sentence to life imprisonment without
parole, and so did not effect the release of the recipients, commutations, like
pardons, are very significant actions by the Governor. To permit a Governor in the
last hours of his term to grant commutations without first applying to the APA
would be a devastating blow in a day when victims’ rights are finally being
recognized. One of the most important factors under R.C. Chapter 2967 is the
requirement that at least three weeks before the APA recommends any pardon or
commutation, notice of the pendency of the clemency application must be “sent to
the prosecuting attorney and the judge of the court of common pleas of the county
in which the indictment against the convict was found.” R.C. 2967.12.
Additionally, under certain circumstances the APA must send a similar notice to
the victim of the crime, or to a representative member of the victim’s family. R.C.
2967.12(B). There are very good reasons for these requirements. One is to avoid
the shock the families of the victims would encounter when they first hear over the
news that the sentences of the convicts who senselessly murdered their loved ones
were commuted.
{¶ 99} Lastly, the doctrine of expressio unius est exclusion alterius has no
application regarding the “subject to” clause. Even though the words
“commutation” and “pardon” appear together elsewhere three times in Section 11,
Article III, the fact that the “subject to” clause does not specifically mention
commutations does not require a narrow reading of the word “pardons” in that
clause. It is readily apparent that the “subject to” clause was inserted into Section
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11, Article III as a compromise to regulate the application process invoking the
entire clemency power, and not just the power to grant pardons (with pardon used
in its narrow sense). More significantly, consideration of the debates of the Ohio
Constitutional Convention of 1850-1851 regarding the reporting requirement of
Section 11, Article III makes it readily apparent that the drafters did not use the
terms “pardon” and “commutation” with the precision which would require a
finding that “pardons” in the “subject to” clause does not include commutations.
{¶ 100} Since the application process leading to the Governor’s grant of
clemency was seen as subject to abuse, the drafters of Section 11, Article III
allowed regulations to be prescribed to curb that abuse. Those regulations were
authorized for the application process, whether initiated by the applicant (or
someone on the applicant’s behalf) or by the Governor, but the power of the
Governor to act is specifically exercised subject to the regulations. A Governor
may in certain situations choose to grant only a commutation when the applicant
may have applied for a full pardon. The interrelationship of the concepts of pardon
and commutation cannot be ignored, an interrelationship obviously recognized by
the reported statements of the delegates to the Ohio Constitutional Convention of
1850-1851. It is inconceivable that the omission of the word “commutation” from
the “subject to” clause was intended to exclude commutations from regulation.
III
{¶ 101} From the foregoing it is apparent that Section 11, Article III
authorizes the General Assembly to regulate the application process for executive
clemency, whether it is a pardon or a commutation which is being considered. I
emphatically disagree with the per curiam opinion’s conclusion that Section 11,
Article III authorizes regulations only with respect to pardons, and not
commutations. The per curiam opinion’s misguided attempt to sever the
supposedly offending portions of R.C. 2967.07 is made necessary by its equally
misguided conclusion that the Governor’s power to commute sentences is
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unfettered by the Constitution. R.C. 2967.07 is constitutional in toto, and makes
APA involvement mandatory before the Governor may grant a pardon or a
commutation.
{¶ 102} In view of today’s decision it should become a top priority of the
citizens of this state to ensure that such reckless behavior on the part of a Governor
will not be repeated. It is ironic that the reasons for amending the Constitution
today are similar to the reasons the 1850-1851 Constitutional Convention amended
the Constitution of 1802. The delegates to the 1850-1851 Constitutional
Convention felt the need to enumerate the Governor’s pardoning powers. Even
though the 1802 Constitution did give the Governor power to commute, there
remained a small degree of doubt (later put to rest by the United States Supreme
Court in Ex parte Wells) that it did not, so the Ohio Constitution was amended to
clarify the matter. In much the same way, it appears that our Constitution must be
amended to specify that the manner of applying for clemency includes applications
for commutations as well as for pardons. While it is clear to me that no such
amendment should be necessary, members of this court do not agree. After this
case, I am strongly convinced that it is time for the people of Ohio to consider a
constitutional amendment placing explicit and unavoidable limitations on the
Governor’s clemency power (including the power to pardon and to commute, but
not to reprieve), to go so far as to place specific limits on the Governor’s discretion
in the use of the power. While I agree that the pardoning power is an indispensable
aspect of our criminal justice system, the pardoning power is too important to be
trusted with relatively few conditions to the unfettered whims of a lame duck
Governor.
{¶ 103} I would reverse the judgment of the court of appeals in case No.
93-1165 and reinstate the declaratory judgment of the trial court that the purported
pardon and commutations are invalid.
DOUGLAS and F.E. SWEENEY, JJ., concur in the foregoing opinion.
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