May 22, 2001




By: Christopher Reinhart, Associate Attorney

You asked about the pardon power in Connecticut and constitutional requirements for the pardons process.


In Connecticut, the Board of Pardons is authorized to grant pardons for any crime and commutations from the death penalty (CGS § 18-26). The General Assembly exercised the pardons power until legislatively delegating it in 1883 to the newly created Board of Pardons.

The governor has the power to grant reprieves, in all cases except impeachment, until the end of the next session of the General Assembly (Ct. Constitution Art. IV § 13). The 1818 constitution granted the governor this power. A committee draft originally gave the governor the pardon power but the provision was deleted during the debates in 1818 (Horton, Connecticut Constitution and Commentary).

In Palka v. Walker, the Connecticut Supreme Court stated that a reprieve is a stay of the execution of a sentence and is often used to give a prisoner an opportunity to seek a pardon, commutation, or further judicial review. The court stated that the makers of the constitution gave the governor the power to grant reprieves until the end of the General Assembly's session so that the legislature could have an opportunity to consider an inmate's case and decide whether to grant clemency. A reprieve granted during a legislative session can last until the end of the next session. The governor can grant multiple reprieves to the same person (124 Conn. 121 (1938)).

A 1992 attorney general's opinion considered whether the governor had any pardon power. Based on the powers conferred to the board and governor and the Connecticut Supreme Court's opinions, he concluded that the governor did not have any residual power. At least one commentator argued that the governor does have some pardoning power but other sources disagree.

The federal constitution places few if any requirements on pardons procedures. In a case that considered the Connecticut pardons process, the U.S. Supreme Court stated that a prisoner who requests a pardon or commutations has no expectation of one but only a "unilateral hope." In a more recent case, the Court ruled that Ohio's clemency procedure was valid but the justices split on whether there were any due process concerns in a death penalty pardons case. There was no majority opinion on this issue but five justices argued that some due process requirements apply to pardons procedures.

Attached is OLR Report 98-R-0255 that describes the Board of Pardon's procedures and the history of pardons in Connecticut.


Connecticut's colonial charter gave the General Court authority to grant clemency. Unlike most states, Connecticut did not confer the pardoning power in its constitution. The General Assembly exercised this power until creating the Board of Pardons in 1883.

In a 1992 opinion to Governor Weicker, the attorney general considered whether the governor had any residual power to grant pardons or commutations in death penalty cases (Attorney General's Opinion 1992-020). The attorney general compared the authority of the Board of Pardons and the governor and considered the Supreme Court's discussion in Palka. He stated that only the Board of Pardons has the power to grant pardons and commutations and the governor has no residual powers. He also cited a Connecticut Supreme Court case that, citing to Palka, states "the pardoning power is vested in the legislature which has delegated its exercise to the Board of Pardons" (McLaughlin v. Bronson, 206 Conn. 267 (1988)).

At least one commentator argues that because the Connecticut Constitution does not give the power to any branch of government, the governor may have some clemency power. He argues that clemency is traditionally an executive power. Although there is no record of any pardons by the governor before creation of the Board of Pardons, he argues that this only proves that the power was not exercised and not that the governor does not have it as an inherent power of the executive office (William R. Ginsberg, Punishment of Capital Offenders, 27 Connecticut Bar Journal 273 (1953)).

Other sources suggest that under the American form of government, the clemency power is a power of the people and it does not inherently belong to any branch of government (59 Am. Jur. 2d, Pardons § 12, Jensen, The Pardoning Power in the American States (1922)).


In Connecticut Board of Pardons v. Dumschat, the U.S. Supreme Court considered the procedures used by Connecticut's board. The Court stated that pardon and commutation decisions were not traditionally the business of the courts and are rarely if ever appropriate for judicial review. The Court stated that a decision to commute a long-term sentence depends on objective fact-finding and also subjective evaluations and predictions of future behavior. The Court stated that a person requesting a pardon or commutation has no expectation of receiving one but only has a "unilateral hope." The Court concluded that because Connecticut's pardons statute has no definitions, no criteria, and no requirements it creates no duty or constitutional entitlement (452 U.S. 458 (1981)).

In a more recent case, the Court considered a request for a pardon from a death row inmate. In Ohio Adult Parole Authority v. Woodard, the Court ruled that Ohio's clemency procedure was valid but the justices split on whether there were any due process concerns in a death penalty pardons case (523 U.S. 272 (1998)).

Chief Justice Rehnquist, in an opinion joined by Justices Kennedy, Scalia, and Thomas, stated that the Court's ruling in Dumschat applies to death penalty cases and that imposing procedures on the pardons process is "inconsistent with the heart of executive clemency." He stated that due process protects a person from deprivation of life, liberty, or property without due process of law but a person's life interest is primarily relevant at trial. He stated that a death row inmate's petition is a "unilateral hope" and clemency would no longer be a matter of grace if it were constrained by the formal procedures requested by the defendant.

Justice O'Connor, in an opinion joined by Justices Breyer, Ginsburg, and Souter, argued that a "prisoner under a death sentence remains a living person and consequently has an interest in his life." She stated that some minimal procedural safeguards apply to clemency proceedings and judicial intervention might be warranted if the state arbitrarily denied a prisoner access to its clemency process.

Justice Stevens wrote separately and argued that a person has a constitutionally protected interest in his life and minimal, perhaps even barely perceptible, procedural safeguards are required in clemency proceedings. He stated that even if due process is required in clemency proceedings, there are reasons that only the most basic elements of fair procedure are required. He stated that a state might eliminate this aspect of capital sentencing entirely and it can give its executive virtually unfettered discretion in determining the merits of an appeal for mercy. But he also saw reasons why clemency proceedings should not be entirely exempt from judicial review. He stated that a governor could not use race, religion, or political affiliation as the standard for granting or denying clemency. He stated that the Court's cases support the conclusion that "if a state adopts a clemency procedure as an integral part of its system for finally determining whether to deprive a person of life, that procedure must comport with the due process clause." He added that it is irrelevant that states are not required to have clemency proceedings because once they are established they must comport with due process.