The Mississippi Supreme Court through judicial restraint brought sanity to the political schizophrenia which erupted over the late term pardons by then Governor Haley Barbour. Apoplectic Republicans derided Barbour for being soft on crime.

Opportunistic Democrats paraded victims' families in front of cameras. Strange bedfellows represented pardon recipients ranging from former Mississippi Supreme Court Justice Oliver Diaz who has in the past claimed himself to be a political target of Karl Rove, to former federal judge Charles Pickering who was elevated to the U.S. Fifth Circuit Court of Appeals by Rove's boss, then President George W. Bush. To further confound those concerned with justice, Attorney General Jim Hood sought to keep in prison individuals who had received pardons, which with the confirmation of the pardons' validity by the Supreme Court, effectively transformed former convicts into victims of the state.

Justice Jess Dickinson authored the majority opinion for the 6-3 decision upholding Barbour's pardons, and in the process offered a civics lesson on the separation of powers in the U.S. and Mississippi Constitutions through a review of the U.S. Supreme Court landmark decision of Marbury v Madison and prior decisions by the Mississippi Supreme Court.

Dickinson wrote, "This case is about whether this Supreme Court has the right, authority, and power to declare itself superior to, and above, both the other two branches of government in all matters of constitutional compliance...we decline - as have so many other courts before us - to assume for ourselves the absolute power to police the other branches of government in fulfilling their constitutional duties...."

The Court noted during oral arguments, Hood was asked to identify any pardon by Barbour that was not facially valid; Hood could not do so. The Court determined it did not have the constitutional authority "to void a facially-valid pardon issued by the coequal executive branch, where the only challenge is...[the] publication requirement....it fell to the governor alone to decide whether the Constitution's publication requirement was met."



The decision, steeped in core constitutional issues, brings sanity to the political schizophrenia which erupted over
Barbour's pardons.



Dickinson was joined in the majority by Justices George Carlson, Ann Lamar, Jim Kitchens, David Chandler and Leslie King. Chief Justice Bill Waller and Justices Michael Randolph and Randy Pierce dissented.

The decision, steeped in core constitutional issues, provides delicious reading for legal nerds spiced with two separate written opinions in further concurrence and three written dissents.

In his separate concurring opinion, Chandler suggested if the Court had decided the pardons were open for judicial review, then every pardon ever made in Mississippi of individuals living or dead could be subject to retroactive judicial review. Randolph wrote in his dissent the decision "is a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State."

Randolph footnoted in his dissent, and Carlson cited in his special concurrence, "the beauty of the Constitution is that, if application of its words causes unintended results, the Constitution provides a remedy: amend it."

Hood, having suffered this legal defeat, appears to want to do just that: he announced plans to lead a political fight to amend the Constitution. In his statement following the Supreme Court's decision, Hood said, "I intend to seek an initiative to amend Section 124 of our Constitution to make it very clear that the judicial branch is responsible for enforcing the 30-day notification period in the future. I am calling on all our victims groups, law enforcement and other volunteers to help me obtain the necessary signatures to place the measure on the ballot."

While speaking to the Stennis-Capitol Press Corps luncheon earlier this year, state Representative Bobby Moak - the House Minority Leader - noted that Democrats might use the initiative and referendum to increase voter turnout in future elections. Successfully putting an initiative on the ballot would require a minimum of 107,185 signatures with at least 21,437 signatures from each of the five, pre-2002, congressional districts.

Of some amusement coming from the pardon legal challenges was Hood's revelation that his office was collecting the costs of the legal work and investigations and that Barbour might be held personally responsible for repaying those costs after the pardon issues was settled. Defense attorney Tom Fortner, who represented some of the individuals receiving pardons, dismissed that idea as ridiculous and posed the question of whether if Hood lost, whether he would personally pay the costs. Another defense attorney, Cynthia Stewart, suggested that a cause of action exists to sue the State of Mississippi for monetary damages because of Hood's actions.

While some individuals were held in prison for nearly two months after they received their valid pardons, I suspect most will be thankful to move on with their lives. Some may seek to punish the state for Hood's actions; but I hope they will instead exhibit a measure of the grace shown them by Barbour instead.



Brian Perry is a partner in a public affairs firm. Contact him at reasonablyright@brianperry.ms or @CapstonePerry on Twitter.