IN THE SUPREME COURT OF VIRGINIA. v. Record No PETITION FOR REHEARING PER R. 5:37. Introduction

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1 IN THE SUPREME COURT OF VIRGINIA TRAVION BLOUNT, Appellant, v. Record No HAROLD W. CLARKE, DIRECTOR OF THE VIRGINIA DEPARTMENT OF CORRECTIONS, Appellee. PETITION FOR REHEARING PER R. 5:37 Introduction This Court on February 12, 2016 entered an Opinion and Order answering the restated certified questions from Judge Allen of the United States District Court for the Eastern District of Virginia in the affirmative, specifically, holding that Governor McDonnell s commutation of Travion Blount s sentence of six consecutive life terms plus 118 years to 40 years was a valid partial pardon under the Article V, 12 of the Constitution of Virginia. In so doing, the Court erred by: (1) Announcing a previously undefined form of executive clemency under Virginia law (a partial pardon ), thereby retreating from 240 years of the constitutional limitation of the executive s clemency powers in the 1

2 Commonwealth, and from the continuing precedent of Lee v. Murphy, 63 Va. 789 (1872), and now allowing a Governor for the first time to impose a sentence not prescribed by law and without the prisoner s consent; (2) Dismissing Blount s contention that Governor McDonnell s commutation must be construed as a conditional pardon in accordance with Lee, on the grounds that Blount s partial pardon was a reduction of punishment in degree rather than in kind, when the commutation of Blount s punishment was one in kind, as well, since the conditions and privileges of a prisoner incarcerated for six consecutive life terms plus 118 years at a Security Level 5 prison are markedly different from the conditions and privileges found at all lower level Virginia penitentiaries. 1. The Court Should Vacate its Order Because Otherwise a Governor May Now Impose a Sentence not Prescribed by Law and Without a Prisoner s Consent, Contrary to Virginia Constitutional Law and Tradition. The Court, in agreement with Blount, reaffirmed Lee v. Murphy, 63 Va. 789 (1872), and held that the unambiguous language of Art. V, 12 restricts the Governor s power of commutation to commuting capital sentences (Opinion and Order at 4-5). In Lee, this Court took the straightforward position that, in the absence of an absolute pardon or a valid commutation of a capital sentence, the Governor is authorized to substitute, with the consent of the prisoner, any punishment recognized by 2

3 statute or the common law as enforced in this State. Lee, 63 Va. at 802 (emphasis added). Hence, the Court in Lee construed the alleged commutation in that case as a constitutionally valid conditional pardon, subject to the prisoner s acceptance. Id. at In Blount s case, though, the majority of this Court has circumvented its holding in Lee by invoking R. 5:40(d) to change the certified questions to omit the word conditional before pardon and by characterizing Governor McDonnell s commutation as a partial pardon to which Blount s consent is not required (Opinion and Order at 10-11). This holding is convenient for the Commonwealth but ignores the state s constitutional history wherein the framers designed a limited clemency power to preclude a Governor s abuse of the prerogative to impose sentences not otherwise prescribed by the law and without the prisoner s consent. In Gallagher v. Commonwealth, 284 Va. 444, , 732 S.E.2d 22, 25 (2012), this Court reiterated just four years ago that our constitutional history demonstrates a cautious and incremental approach to any expansions of the executive power, leading to the conclusion that the concerns motivating the original framers in 1776 still survive in Virginia. Yet, the majority here has relied heavily on the statements of one delegate to the 1851 constitutional convention and on a dissent in Ex Parte 3

4 Wells, 59 U.S. 307, 311 (1855), in engineering a previously undefined power of the Governor to issue a partial pardon remitting part of a prisoner s punishment in accordance only with the Governor s whim (Opinion and Order at 6-7). Ironically, as Justice Kelsey aptly pointed out in his dissent (Id. at 27-31), Del. Stanard and the dissenting Justice McLean in Wells each spoke out in protest against the executive having a power to impose a sentence not in accordance with prescribed law. See Debates and Proceedings of the Virginia Reform Convention, Supp. No 82-2, Richmond Enquirer (July 15, 1851); Wells, supra, 59 U.S. at 319. As to the debate about which should hold in Virginia -- Justice Marshall s statement in United States v. Wilson, 32 U.S. 150, 161 (1833), that [a] pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance, or Justice Holmes statement in Biddle v. Perovich, 274 U.S. 480, (1927), that [j]ust as the original punishment would be imposed without regard to the prisoner s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done this Court in Lee had made it clear that aside from a commutation of a non-capital sentence, the consent of the prisoner would be required as to the Governor s remittance of less than the whole of the punishment: The objection 4

5 sometimes urged, that no man can contract for his own imprisonment, is answered by the consideration that the convict, having already forfeited his life or his liberty, surrenders nothing by his contract with the executive. The substituted sentence is his own voluntary choice; and the courts merely execute that choice in the infliction of a milder punishment. Lee, supra, 63 Va. at 798. Instead, the majority has now granted the Governor the unlimited discretion and authority to impose a sentence of any term of years that suits only the Governor, upon a prisoner s petition for a conditional pardon. Such a sentence can now be imposed without the prisoner s consent and without any basis in the law, per the Governor s discretion. Blount petitioned specifically for a conditional pardon, reserving the opportunity to reject the Governor s clemency if imposed in such a manner contrary to Blount s perception of his own interests. The majority, for the first time in the Commonwealth s history, is telling Blount that he now can be sentenced based solely on a Governor s whim, even if further to his detriment. This new unbridled power in the executive is contrary to the 1851 Constitution, to this Court s holding in Lee, and to this Court s admonition in Gallagher that the clemency power is to remain strictly 5

6 limited, as the framers intended in 1776 and as the delegates to the subsequent constitutional conventions concurred. 2. Governor McDonnell s Commutation was In Kind as Well as In Degree, and in Accordance with Lee Must be Construed as a Conditional Pardon. The majority construes Governor McDonnell s commutation of Blount s sentence as actually being a partial pardon based on the reasoning that a commutation is a substitute of a different form of punishment or the imposition of a lesser penalty in kind, while Governor McDonnell s executive order reduced Blount s punishment merely in degree (Opinion and Order at 8-11). The Governor s commutation in Lee remitted the prisoner s punishment from three years in state prison to one year in the city jail, with the prisoner s initial consent. Lee, supra, 63 Va. at 799, 802. The majority cites this change in the form of Murphy s punishment as proof that the conditional pardon in Lee has no bearing on the construction of Blount s partial pardon, which supposedly changes only the degree (Opinion and Order at 11, at n.2). However, prior to Governor McDonnell s commutation Blount was sentenced to six consecutive life terms plus 118 years and was incarcerated at Wallens Ridge State Prison, a Security Level 5 correctional 6

7 institution, where multiple-life-termers are offered few, if any, opportunities to advance or improve themselves (higher education, technical/trade schooling, earned positions of trust within the prison) because they have little or no chance of ever being released. Due to the commutation of his sentence to a term of years, though, Blount has already been reassigned to River North Correctional Center, a Security Level 4 prison. As the Virginia Department of Corrections operating procedures attest, when a prisoner is remanded to a lower security level institution the living conditions and opportunities for rehabilitation and for privileges change concomitantly. A Security Level 5 prison is maximum security and is designed to hold prisoners with single, multiple, & Life + sentences who have served less than 20 years, such as Blount prior to his commutation. See, e.g. Operating Procedure (Jan. 1, 2015). Now, with a 40-year sentence he is incarcerated in a Security Level 4 close institution, and as the years of his sentence pass he will become eligible in turn for Security Level 3 (Medium), Security Level 2 (Moderate), and Security Level 1 (Minimum) much sooner than he would have (if ever) if he were still sentenced to six consecutive life terms plus 118 years. As he moves down these classifications, he will receive, for example, more career and technical 7

8 program opportunities, more offender services, and lesser disciplinary restrictions. See, e.g., Operating Procedure (April 1, 2013); Operating Procedure (Nov. 1, 2015); Operating Procedure 830.2, supra. A review of the operating procedures and rules and regulations of the Virginia Department of Corrections makes it clear that Governor McDonnell s commutation of Blount s six life sentences plus 118 years to a sentence of 40 years changed his punishment not just in degree but also in kind. There is no meaningful logical difference in the reasoning of the majority here that the Governor in Lee purported to change the kind and degree of Murphy s punishment by commuting his sentence from three years in state prison to one year in the city jail, and in a determination that Governor McDonnell changed the kind and degree of Blount s punishment by commuting his sentence to 40 years which Blount would necessarily or likely serve in a series of lower security level prisons. As effecting a change in kind and in degree of Blount s sentence and in accordance with the majority s stated reasoning, Governor McDonnell s commutation also must be construed as a conditional pardon, as this Court construed the commutation in Lee, and Blount may accept or reject it. 8

9 Now, it is true that a prisoner is ordinarily likely to accept or at least not contest a commutation of six consecutive life sentences plus 118 years to 40 years, just like it probably seemed unlikely that the prisoner in Lee would contest the conditional pardon of his sentence to one year in the city jail, especially after he had originally accepted it. Each prisoner, though, may have his own opinion of his best interests. Blount has never acceded to Governor McDonnell s conditional pardon of his six consecutive life terms plus 118 years because if he accepts the 40-year sentence he may be precluded from prosecuting his habeas corpus petition asserting his Eighth Amendment rights under Graham v. Florida, 560 U.S. 48 (2010). However, the majority has elided the framers intent, the constitutional history of the Commonwealth, and this Court s holding in Lee by validating Governor McDonnell s commutation, unmoored by prescribed law, as a partial pardon and forcing Blount to serve the 40 years without his consent. Whether Governor McDonnell s intentions were altruistic or not, the net effect of his discretionary and unilateral change in the kind and degree of Blount s punishment constitutes an abuse of the clemency power in the present context, easily remedied by this Court construing the commutation as a conditional pardon, which Blount may accept or reject. 9

10 Conclusion The Court s holding that Governor McDonnell issued a partial pardon to Blount is contrary to the terms, reasoning, and history of Art. V, 12 and to this Court s opinion in Lee, by granting the Governor the power to change the kind and degree of a prisoner s non-capital sentence without his consent. The Court should grant this Petition for Rehearing and order additional briefing or oral argument as it deems necessary. Dated: March 14, 2016 _/s/ John A. Coggeshall John A. Coggeshall VSB No PO Box 9508 Norfolk, VA (757) (Phone) (757) (Facsimile) john@johncog.com ( ) Counsel for the Appellant Travion T. Blount 10

11 CERTIFICATE OF FILING AND SERVICE 1. The full name of the Appellant is Travion T. Blount. 2. The full name of the Appellee is Harold Clarke, Director of the Virginia Department of Corrections. 3. The counsel for the Appellant is John A. Coggeshall, VSB No , PO Box 9508, Norfolk, VA 23505, (757) (Phone), (757) (Fax), ( ). 4. The counsel for the Appellee is Stuart A. Raphael (VSB No ), Solicitor General of Virginia, Office of the Attorney General, 900 East Main Street, Richmond, Virginia 23219, (804) (Telephone), (804) (Fax), ( ). 5. Counsel for the Appellant hereby certifies pursuant to R. 5:37(d)(1) that he has sent via an electronic mail attachment a copy of this Petition for Rehearing to the counsel of record for the Appellee, at his e- mail address of record at sraphael@oag.state.va.us on this 14 th day of March, _/s/ John A. Coggeshall John A. Coggeshall Counsel for the Appellant Travion T. Blount

12 CERTIFICATE OF COMPLIANCE This Petition for Rehearing has been prepared in compliance with R. 5:37(d)(1) using Arial, 14 Point, as 10 pages is longer than the total word count of 1,934, exclusive of the Certificate of Filing and Service and this Certificate of Compliance. _/s/ John A. Coggeshall John A. Coggeshall Counsel for the Appellant Travion T. Blount.