Seriously, has Kasich’s folks even read the Ohio Constitution at any point?
Today, the Governor released a statement indicating that he has asked the Ohio Parol Board to examine the case and give a recommendation. That is a totally appropriate thing under the law for the Governor to consider. What isn’t proper is what the Governor asked the Parol Board to examine. According to the Governor’s prepared release:
“Today Gov. John R. Kasich announced that he has instructed the Ohio Parole Board to review the case of Kelley Williams-Bolar and make a recommendation to him to determine if her conviction should stand, if it should be reduced to a lesser offense, if her sentence should be reduced or if she should be pardoned.”
Folks, here’s Art. III, Sec. 11 of the Ohio Constitution:
The Governor shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as the Governor may think proper; subject, however, to such regulations, as to the manner of applying for commutations and pardons, as may be prescribed by law. . .
So when it comes to a Governor’s constitutional clemency powers, an Ohio Governor can only do one of three things: 1) Temporarily delay the fulfillment of the sentence through a reprieve; 2) lower or otherwise modify the terms of a sentence without forgiving the commission of the crime itself through a commutation; or 3) pardon both the offense and the sentence entirely.
A Governor has no power to determine “if her conviction should stand” or “if it should be reduced to a lesser offense.” The first is the purview of Ohio’s appellate courts. The second is exclusive purview of the grand jury and the prosecuting authority. Neither is the jurisdiction of the State’s chief executive.
There is no constitutional or legal authority for a Governor to reduce a conviction, post-conviction, to a lesser charge. I’m working to find out if the Administration has some anecdote or legal authority they’re relying on in even making the representation.
As anyone who has watched the Parole Board would tell you, ordinarily any application for a pardon this soon after a conviction (and before a person has even completed her sentence) is almost always rejected by the Parole Board.
Now, the Governor can, as Governor Strickland did on multiple occasions, go against the recommendation of the Parole Board legally. However, it’s not unheard of for the Parole Board’s recommendation being used to give the Governor some political cover to not grant clemency in a high-profile case.
Generally speaking, pardons have typically only been granted after a person has successfully completed all aspects of their sentence in Ohio, too. Williams-Bolar best bet is probably a commutation of the sentence first. But again, the sentence she received was minimal compared to the potential penalties she faced.
In the end, there is no real legal standard for any of this. In fact, the Parole Board isn’t bound to treat its prior rulings on similar applications as precedent at all. But the granting of clemency is an incredibly rare thing, as is the Ohio Parole Board favorably recommending it. According to its own report, in 2009, the Parole Board only made favorable recommendations in less than 11% of the applications it received, and most of those favorable recommendations were applications for pardons in which the applicant had gone decades since their conviction with no subsequent charges.
However, all is not lost for Williams-Bolar. I couldn’t locate a copy of the story, but I’m almost positive that as he was leaving office, Governor Strickland pardoned at least one person whose conviction would have kept them out of the military.
If correct, Kasich would have some precedent for pardoning Williams-Bolar in order to remove any risk of her convictions jeopardizing her teaching license (a risk that I believe is overstated.)
The question is what will the Parole Board do and is Kasich prepared to go against their recommendation and pardon her anyways? Stay tuned!