The legality of last-minute clemency decisions by outgoing Mississippi Gov. Haley Barbour appears to hinge on whether the recipients gave sufficient public notice of their intent to seek release. The state’s attorney-general, Jim Hood, has said there was not proper notice. A state judge, responding to the attorney general’s request, temporarily blocked the release of 21 prisoners, ordered by Barbour.
In Mississippi, public notice is a constitutional requirement for acts of clemency, which include pardons, or acts of forgiveness after the completion of a sentence, and commutations, or shortened prison sentences. Under Mississippi law, the notification onus appears to be on the applicant and allows time for victims to comment on a potential pardon or early prison release before it takes effect.
At ProPublica, we recently reported on bias and transparency in presidential pardons, which require no such public notice. The Justice Department keeps the identity of an applicant secret until the president has granted or denied the pardon. But sometimes victims are privately given an opportunity to weigh in. The Justice Department’s Office of the Pardon Attorney, which processes pardon claims and makes recommendations to the White House, can seek comments from victims.
At the federal level, most successful pardon and commutation applicants go through a rigorous application and interview process conducted by the pardon office. Although it is rare for a pardon to be granted for someone who has not applied through the pardon office, presidents can pardon anyone charged with or convicted of a federal crime at any time, with or without paperwork.