Criminal Law. Pardon.

New York Statute Provides for Compulsory Judicial Reversal of Conviction after Pardon on the Ground of Innocence Reviewed work(s): Source: Harvard Law Review, Vol. 59, No. 7 (Sep., 1946), pp. 1174-1175 Published by: The Harvard Law Review Association Stable URL: http://www.jstor.org/stable/1335179 . Accessed: 23/05/2012 21:16
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to Harvard Law Review.

http://www.jstor.org

II74

HARVARD LAW REVIEW

[Vol. 59

257 Pac. at 537. Where the power of modifying the fundamental law has been purposefully withheld from officeholdersand reserved to the people, the courts should be vigilant to safeguard the freedom of the people in exercising it. See THE FEDERALIST 49, 78] (Lodge ed. [Nos.
i888)
313,

482.

RECENT STATUTE
CRIMINAL LAW - PARDON- NEW YORK STATUTE PROVIDES FOR COMPULSORYJUDICIAL REVERSALOF CONVICTIONAFTERPARDON ON THE GROUND OF INNOCENCE. -A recent New York statute provides that

when a pardon by the governor is based on a finding of innocence from evidence discoveredafter the judgmentof conviction and after expiration of the permissibletime within which to move for a new trial, upon motion the judgment of conviction must be set aside and the indictment dismissed by the court in which the defendant was convicted. This "shall place the defendant in the same position as if the indictment . . . had been dismissed at the conclusion of the trial by the court because of the failure to establish the defendant'sguilt beyond a reasonabledoubt." N. Y. Laws I946, c. 6o. This statute, which providesproceduralmachinerywherebyan erroneously convicted person may clearly obtain the status of innocencewhich he deserves,constitutes a distinct advance in the law of pardons. Pardon is the only remedy ordinarilyavailable to an erroneouslyconvicted person after the close of the term. See Note (1942) 5I YALE L. J. 699. While purporting to remove the legal consequences of conviction, it is an insufficientremedy for the innocent person, since it does not affect the record fact of guilt. Williston, Does a Pardon Blot out Guilt? (19I5) 28 HARV. L. REV. 647. But see Ex parte Garland, 4 Wall. 333, 380 (U. S. i866). Where a pardon is granted while an appeal is pending, the right to remove the discredit and stigma of conviction has been recognized as sufficient to prevent a dismissal of the appeal as moot. State v. Jccobson, 348 Mo. 258, I52 S. W.(2d) io6i (I94I); Eigkmy v. People, 78 N. Y. 330 (i879). Contra: Manlove v. State, I53 Ind. 8o, 53 N. E. 385 (i899); Stout v. State, 38 Okla. Cr. 30, 258 Pac. I054 Despite pardon, a conviction may still be the basis for dis(I927). crediting a witness, disbarringan attorney, refusing an application for naturalization,or withholdinga license to engage in a business. Sipanek v. State, ioo Tex. Cr. 489, 272 S. W. I4I (I925) (witness); In re Bozarth, I78 Okla. 427, 63 P.(2d) 726 (1936) (disbarment); Weedin v. Hempel, 28 F.(2d) 603 (C. C. A. 9th, I928) (naturalization); Baldi v. Gilchrist, 204 App. Div. 425, i98 N. Y. Supp. 493 (ist Dep't I923) (license). And in New York, the Court of Appeals has reluctantly applied an habitual crimes statute to a person pardoned for innocence.

I946]

RECENT STATUTE

",75

The fact Prisament v. Brophy, 287 N. Y. I32,38 N. E.(2d) 468 (I94i). that the courts have often, although not invariably, failed to distinguish between pardons for innocence and pardons for other reasons has led legal writers to advocate judicial reversal of erroneous convictions as the only effective means to " blot out " guilt and restore the convicted person to his former status. See Prisament v. Brophy, supra at I39, 38
N. E.(2d) at 47I; BORCHARD,CONVICTING THE INNOCENT (1932) xxii;

Weihofen, The Effect of a Pardon (I939)

88 PA. L. REV. I77.

A few

jurisdictions have attempted by legislation to improve the predicament of the wrongfully convicted, but their efforts have been limited to provisions for indemnity. E.g., 52 STAT.438 (0938), i8 U. S. C. ?? 729, 730 (1940); CAL. PEN. CODE (Deering, I941) ? 4900; N. Y. CT. CL. ACT ? 9; N. D. REV. CODE (I943) ? I2-5704; WIS. STAT. (Brossard, I945)
? 285.05.

Although the present statute meets the problem squarely, its constitutionality may be questioned. Apparently the court must accept the governor's determination of innocence and set aside the original judgment of conviction. This in essence gives the executive appellate jurisdiction over the judiciary, and could be considered a violation of the principle of separation of powers. Cf. Matter of Greene, i66 N. Y. 485, 492, 6o N. E. I83, i85 (I90I); People v. Howland, I55 N. Y. 270,
282, 49 N. E. 775, 779 (i898).

The New York courts have stated

that a legislative declaration of innocence after conviction is an unconstitutional usurpation of the judicial function. See Roberts v. State, 3o App. Div. io6, II2, 5I N. Y. Supp. 69I, 695 (3d Dep't I898), aff'd, i6o N. Y. 2I7, 54 N. E. 678 (I899). Moreover, the courts may decline to accept the function allocated to them by the statute on the ground that it involves no real judicial determination. Cf. ICC v. Brimson, I54 U. S. 447 (i894); Matter of Davies, i68 N. Y. 89, I04, 6i N. E. ii8, I22
(I90I).

Since the governor has the constitutional power to eliminate the

immediate and most substantial incidents of conviction, and since the legislature may grant indemnity, it may be argued that the courts should not permit theoretical obstacles to bar removal of collateral consequences. However, there are very sound practical reasons for requiringa judicial determinationof facts offered as grounds for changing a judgment, since vesting such a function in the executive presents opportunity for the abuse of authority which the principle of separation of powers was designed to check. For this reason, vesting discretion in the court to set aside its conviction or to dismiss the proceedings would seem a preferable solution.