John A. Coggeshall for petitioner.
Stuart A. Raphael, Solicitor General (Mark R. Herring, Attorney General; Linda L. Bryant, Deputy Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney General; Michael T. Judge, Senior Assistant Attorney General; Katherine Quinlan Adelfio, Assistant Attorney General; Matthew R. McGuire, Assistant Attorney General; Trevor S. Cox, Deputy Solicitor General, on brief), for respondent.
OPINION BY JUSTICE CLEO E. POWELL. JUSTICE KELSEY, with whom JUSTICE McCLANAHAN and JUSTICE ROUSH join, dissenting.
PRESENT: All the Justices
CLEO E. POWELL, JUSTICE
Pursuant to Article VI, Section 1 of the Constitution of Virginia, we accepted the following certified questions from the United States District Court for the Eastern District of Virginia, restated for the ease of presentation, pursuant to Rule 5:40(d):
(1) Is the document which emanated from the Executive Department [on January 10, 2014 and signed by then-Governor Robert F. McDonnell] to be considered [(a)] a . . . pardon or [(b)] a commutation?
(2) Were the actions taken by the Governor of Virginia in [the aforementioned document] valid under the Virginia State Constitution?
(Letter designators and alterations added).
In September 2006, then-fifteen-year-old Travion Blount participated with Morris Downing and David Nichols, both adults, in the armed robbery of numerous attendees of a house party in Norfolk, Virginia. Blount was indicted on 51 felony charges stemming from the robbery. Downing entered a guilty plea and was sentenced under a plea bargain to 10 years. Nichols similarly pleaded guilty and was sentenced to 13 years. Blount pleaded not guilty.
On March 12, 2008, the Circuit Court for the City of Norfolk (" trial court" ) found Blount guilty of 49 counts, including multiple robbery, attempted robbery, conspiracy to commit robbery, abduction, and firearm charges. Blount was sentenced to 118 mandatory years in prison for 24 firearm convictions and to six consecutive life terms for three abduction convictions and three robbery convictions. Blount unsuccessfully appealed his convictions to the Court of Appeals of Virginia and to this Court.
The United States Supreme Court later ruled in Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), that " [t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide" without offering a meaningful opportunity for release. Blount's habeas petition and subsequent habeas appeals were refused, with our courts relying upon Angel v. Commonwealth, 281 Va. 248, 273-75, 704 S.E.2d 386, 401-02 (2011), in holding that Code § 53.1-40.01, which permits inmates to apply for conditional release at age sixty, provides " an appropriate mechanism" for compliance with Graham.
On December 21, 2012, Blount filed a " Petition for Habeas Corpus By Prisoner In State Custody" pursuant to 28 U.S.C. § 2254 (" federal habeas petition" ) in the United States District Court for the Eastern District of Virginia (" the District Court" ), contending that his six life sentences without parole for the non-homicide offenses he had committed as a juvenile were unconstitutional under Graham and that this Court incorrectly held in Angel that Code § 53.1-40.01 offered him a meaningful opportunity for release in his lifetime. The District Court denied the Commonwealth's motion to dismiss Blount's federal habeas petition. While discovery was pending in the District Court, Blount's counsel filed a request for a conditional pardon with the Governor's office on December 30, 2013. In his letter, Blount requested that then-Governor McDonnell grant him a conditional pardon of his six life sentences and 118-year sentence and modify his term of imprisonment " to a more appropriate amount of time for the crimes he committed, which many believe might be somewhere between ten and twenty years' incarceration."
On January 10, 2014, Governor McDonnell issued an executive order stating:
NOW THEREFORE, in light of the record before me and in the interest of justice based on Blount's young age at the time of the crime, his multi-life sentences compared to the sentences of his older co-conspirators without the possibility of parole, and in light of his complete criminal history and conduct while incarcerated in accordance with the provisions of the powers granted to me under Article V, Section 12 of the Constitution of Virginia, I Robert F. McDonnell, do hereby immediately grant Travion Blount, a COMMUTATION OF SENTENCE, reducing his term of incarceration for a total of forty (40) years for his offenses.
* * * *
Pardon granted: January 10, 2014
On January 15, 2014, the Commonwealth filed a " Notice of Pardon" with the District Court and thereafter contended that the Governor's " commutation" of Blount's sentence made Blount's petition for habeas corpus moot. In response, Blount filed a supplemental motion for a continuance, claiming that the Governor's executive order may be construed only as a " conditional pardon" because the Governor has no power to commute non-capital offenses under Article V, Section 12 of the Constitution of Virginia as this Court construed that provision in Lee v. Murphy, 63 Va. (22 Gratt.) 789 (1872).
The District Court entered an Order on August 6, 2014 granting Blount's motion to continue and ordering further discovery,
holding that the Governor did not have the authority to commute a non-capital offense as argued by Blount. In response, the Commonwealth filed a motion for reconsideration claiming that the District Court did not have the authority to decide this question of state constitutional law, that Lee was wrongly decided, and that, as a matter of practice for the past 143 years, the Governors of the Commonwealth have regularly exercised their power to commute non-capital offenses without contest.
A. Certified Question (1)
1. Executive Clemency in Virginia
Article V, Section 12 of the Constitution of Virginia provides:
The Governor shall have power to remit fines and penalties under such rules and regulations as may be prescribed by law; to grant reprieves and pardons after conviction except when the prosecution has been carried on by the House of Delegates; to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution; and to commute capital punishment.
He shall communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same.
In construing constitutional provisions, the Court is " not permitted to speculate on what the framers of [a] section might have meant to say, but are, of necessity, controlled by what they did say." Harrison v. Day, 200 Va. 439, 448, 106 S.E.2d 636, 644 (1959). If there are " no doubtful or ambiguous words or terms used, we are limited to the language of the section itself and are not at liberty to search for meaning, intent or purpose beyond the instrument." Id.
" Constitutions are not esoteric documents and recondite learning ought to be unnecessary when we come to interpret provisions apparently plain. They speak for the people in convention assembled, and must be obeyed.
It is a general rule that the words of a Constitution are to be understood in the sense in which they are popularly employed, unless the context or the very nature of the subject indicates otherwise."
Lipscomb v. Nuckols, 161 Va. 936, 945, 172 S.E. 886, 889 (1934) (internal quotation marks and citation omitted) (quoting Quesinberry v. Hull, 159 Va. 270, 274, 165 S.E. 382, 383 (1932)).
The words of Article V, Section 12 are unambiguous. Pursuant to its language, the Governor is vested with the power to (1) grant reprieves; (2) grant pardons; and (3) commute capital punishment. Nothing in the plain language of the Constitution purports to give the Governor power to commute sentences imposed for convictions on non-capital offenses. However, a brief review of the history surrounding the terms " pardon" and " commutation" is necessary to answer the certified questions propounded by the District Court.
A pardon may be full or partial, absolute or conditional. In some of the States this is so by the express words of the constitution; and where the words are not express, the same result flows from the doctrine that with us a power general in its terms takes the construction given it in the English common law, whence our law is derived.
Lee, 63 Va. (22 Gratt.) at 794.
A pardon is defined as " [t]he act or an instance of officially nullifying punishment or other legal consequences of a crime." Black's Law Dictionary at 1286 (10th Ed. 2014). A conditional pardon is " [a] pardon that does not become effective until the wrongdoer satisfies a prerequisite or that will be revoked upon the occurrence of some specified act." Id. A partial pardon is " [a] pardon that exonerates the offender from some but not all of the punishment or legal consequences of a crime." Id.
A pardon in our days is not a private act of grace from an individual happening to possess
power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. See Ex parte Grossman, 267 U.S. 87, 120, 121, 45 S.Ct. 332, 69 L.Ed. 527 [(1925)]. Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done. So far as a pardon legitimately cuts down a penalty, it affects the judgment imposing it. No one doubts that a reduction of the term of an imprisonment or the amount of a fine would limit the sentence effectively on the one side and on the other would leave the reduced term or fine valid and to be enforced, and that the convict's consent is not required.
Biddle v. Perovich, 274 U.S. 480, 486-87, 47 S.Ct. 664, 71 L.Ed. 1161, 5 Alaska Fed. 359 (1927).
A commutation is defined as " 1. An exchange or replacement. 2. Criminal law. The executive's substitution in a particular case of a less severe punishment for a more severe one that has already been judicially imposed on the defendant." Black's Law Dictionary at 339. When the General Assembly adopted the proposed and ratified Constitution of 1851, the term " commutation" signified a change or substitution " in kind" of punishment, a substitution of a " lesser" form for a " greater" form. Thus, a reduction in the term of imprisonment at that time would not have been understood as a " commutation," but only a " partial pardon," because it did not concern a change in the kind of punishment.
Initially, the Executive Committee recommended imbuing the Governor with the power to " commute the punishment" generally. Register of the Debates and Proceedings of the Va. Reform Convention 71-72 (1851). Subsequently, the word " capital" was inserted to modify punishment, along with the clause requiring the Governor to communicate the " particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted." Debates and Proceedings of the Va. Reform Convention, Supplement. No. 82-1, Richmond Enquirer (July 14, 1851) (on file at the Library of Virginia).
Then, during the debate on the provision at issue, Delegate Stanard spoke in opposition to giving the Governor the power " to commute capital punishment." In his speech he articulates an understanding that a commutation is a change in the kind of punishment and is distinct from a pardon.
It ought not to be left to the executive to say that he shall not be pardoned and that he shall be punished, not in the mode prescribed by law for a crime of which he has been guilty, but by some other mode which the executive may think more proper to be applied.
Debates and Proceedings of the Va. Reform Convention, Supp. No 82-2, Richmond Enquirer (July 15, 1851) (on file at the Library of Virginia) (emphasis added).
Delegate Stanard's understanding of the term " commutation" as a change in the kind of punishment finds support from Justice McLean in Ex parte Wells, 59 U.S. 307, 319-20, 15 L.Ed. 421 (1856) (McLean, J., dissenting). In dissent, Justice McLean distinguished between the power to pardon and the power to commute while explaining why the executive order at issue was actually an unauthorized commutation, not a conditional pardon. Justice McLean wrote regarding the power to pardon:
I have no doubt the President, under the power to pardon, may remit the penalty in part, but this consists in shortening the time of imprisonment, or reducing the amount of the fine, or in releasing entirely from the one or the other. This acts directly upon the sentence of the court, under the law, and is strictly an exercise of the pardoning power in lessening the degree of punishment . . . .
Id. at 319-20. In contrast,
[t]he power of commutation overrides the law and the judgments of courts. It substitutes a new. . . punishment for that which the ...