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May 8, 2007

Can Congress vacate a conviction by legislation?

This item from the New York Times blog pages brings up the border agents' cases (background here and here) and ponders whether Congress can essentially grant a pardon through legislation.  Here are the highlights:

Representative Duncan Hunter ... introduced a bill in January to initiate an unprecedented Congressional pardon of two former border patrol agents currently serving 11- and 12-year sentences after shooting a drug smuggler on the Texas-Mexico border in 2005.  For Mr. Hunter and other immigration hardliners, their conviction is an "extreme injustice."

While Constitutional objections are "very much a possibility," said Joe Kasper, Mr. Hunter's spokesman, he doesn't see the measure threatening executive power.  The president's required signature on the bill "would obviously be synonymous with his authority to execute a pardon," he said. "The Congress is doing nothing more than initiating a pardon."

A House Judiciary Committee spokesperson said a subcommittee will hold a hearing about sentencing guidelines related to the border patrol case in the coming weeks, but "no decisions have been made yet" on Mr. Hunter's bill, which has 98 cosponsors.

The House bill, H.R. 563, can be found here.  Technically, the bill does not speak in terms of granting a pardon; its operative language says orders "that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated." 

My uninformed gut instinct is that Congress ought to have the power to vacate a conviction.  After all, both of the other branches have this power and this power will simply serve to check prosecutorial power exercised by executive branch officials.  But perhaps more informed constitutional scholars might have a different view.

Some related posts on the border agents' case:

May 8, 2007 at 06:43 AM | Permalink


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Tracked on May 8, 2007 11:52:14 AM


You raise an interesting question about Congressional action. Unfortunately, it comes in the context of an emotionally-charged issue, and serious discussion will be difficult.

My reaction is: no. Sure, the president can pardon, but a pardon doesn’t necessarily vacate a conviction in the way that a federal court, exercising its inherent authority could.

However, Congress does not have the inherit power to convict people, nor does it have the explicit power to pardon people. Therefore, there is no correlative power to undo any mistakes that it made.

Perhaps, Congress could try and legislatively void all convictions over a specific band of time that only relate to this people. E.g. on the days of conviction. Of course, this risks helping other criminals who didn’t happen to be border patrol agents and killed a non-foreigner, but I am sure that Congress could draw the statute narrowly enough. The only remaining question, as I see it, is whether congress could make such action self-executing, or whether the agents would have to apply to a court.

Posted by: S.cotus | May 8, 2007 7:00:46 AM

Whether it's constitutional is probably academic. If such a bill passes and gets the president's signature, it's a safe bet the executive branch won't challenge in court. The agents clearly wouldn't challenge it, since they're the beneficiaries.

In short, there would be no one with standing to challenge it.

Posted by: Marc Shepherd | May 8, 2007 7:22:12 AM

"he doesn't see the measure threatening executive power"

Since when is that the question? The proper analysis is whether a pardon power appears anywhere in the enumerated (i.e., limited) powers of Congress found in Article I. (Which, of course, it does not.)

Posted by: KipEsquire | May 8, 2007 7:29:52 AM

Marc, It isn't that simple. Even assuming that the executive branch doesn't challenge it in court, whether it actually is vacated or not still matters for issues like claim preclusion or future sentencings.

Posted by: S.cotus | May 8, 2007 8:37:09 AM

What about "unwarranted disparity" which congress always pretends to be a big concern of theirs? I don't have a problem with congress having this power as long as it's used consistently. Each case where Congress grants a 'pardon' should act as a precedent which could be cited by other convicted persons in a habeas petition as grounds for having their conviction vacated. If the facts and circumstances are substantially similar, then the court should be able to grant a 'pardon' on the theory that congress did it for someone else similarly situated.

Posted by: Bruce | May 8, 2007 8:46:51 AM

Congress could probably do this.

There's precedent for the proposition that Congress can't pass legislation telling courts how to decide particular pending cases. Those who argue that Congress's legislation in the Terri Schiavo case was unconstitutional usually point to Plaut v. Spendthrift Farm (U.S. 1995), where the Supreme Court invalidated statutes that directed federal courts to reopen final judgments in certain cases. Plaut involved a civil case, though, and it's a clear affront to the rights of the prevailing party to have Congress open up the case.

While the victims in this case might feel similarly insulted, the "right" to redress criminal wrongs through criminal proceedings in the courts is with the government, not the victim.

As S. Cotus notes, there might be separation of powers issues if Congress phrased the statute as directing a court to vacate a conviction instead of as voiding the conviction, but I don't see that problem as insurmountable, and it can probably be worked out in the drafting.

Posted by: WB | May 8, 2007 9:38:48 AM

Congress already had its say when it drafted the law. Saying what an injustice is in a specific case is not for the legislature, but for the courts in the first instance and the executive secondarily. I'm with Kip -- the People never gave Congress the power to let individual petitioners [government thugs] off the hook.

Posted by: rothmatisseko | May 8, 2007 10:03:37 AM

I guess my knee-jerk reaction is why can't the legislature decide that a certain law should not apply in a certain case and apply that decision retroactively. The Ex Post Facto Clause would prevent it from going the other way, but it seems like there is precedent for legistatures to determine that penalties should be reduced and have that reduction apply retroactively. Why couldn't that be extended to vacation? I suppose the more troubling part of it is the sort of arbitariness of it, which sort of smells bad in an Equal Protection way. But doesn't Congress regularly pass some sort of "private" acts that only relate to an individual or a small number of people? If so, why would this be any different?

Posted by: Randall Hodgkinson | May 8, 2007 10:39:16 AM

Kip & rothmatisseko, assuming that Congress can constitutionally criminalize what the Border Patrol agents did, why can it not make individual retroactive exceptions?

As I mentioned earlier, there may be separation-of-powers issues with Congress potentially infringing on either the president's pardon power or the judiciary function of adjudicating individual cases, but I'm not convinced that the problems are insurmountable.

Posted by: WB | May 8, 2007 10:57:12 AM

The bill itself is fairly short. I was hoping that the drafters would include some mention of the source of their authority, but they only say that the conviction "represents an extreme injustice."


To vacate further proceedings in the prosecution of certain named persons.

Whereas the conviction and sentencing of United States Border Patrol Agents Ignacio Ramos and Jose Compean for the pursuit and shooting of drug smuggler Osvaldo Aldrete-Davila which is the subject of a Federal criminal case in the United States District Court for the Western District of Texas represents an extreme injustice: Now, therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Congressional Pardon for Border Patrol Agents Ramos and Compean Act'.


It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated. The release of the defendants from the custody of the Government is hereby ordered, with prejudice. No further criminal prosecution or other proceeding against these named individuals with respect to the circumstances giving rise to the convictions and sentences vacated by this Act shall take place.


It is the sense of Congress that the Department of Homeland Security review the rules of engagement presently utilized by the United States Border Patrol.

Posted by: WB | May 8, 2007 11:00:28 AM

Possibly dumb question - why wouldn't this be a bill of attainer?

Posted by: Anon | May 8, 2007 11:21:12 AM

WB, It can’t “retroactively” undo what the executive and the courts did, because Congress writes statutes, the criminally enforces them, the courts approve (or disapprove) that enforcement, and explicitly stated the executive has a pardon power. Separation of powers is funny this way.

So, for example, Congress can tell courts how to decide constitutional issues, and it can’t monkey with judicial creations such as claim or issue preclusion. It can, of course, change substantive law – provided that congress can validly legislate in that area.

The other issue is more of a metaphysical one. Each branch gets to control its own reality. So, if a court issues a judgment, another branch can’t claim that the judgment never “happened.” If congress enacts a statute, it still “exists” even if courts hold that it is unconstitutional or the executive chooses not to enforce it. Likewise, if the executive does something and it is held unconstitutional, it still “happened” and it can’t be erased.

However, each branch can generally correct its own errors. Courts can vacate convictions. The executive can fix whatever mess it created. Congress can repeal statutes.

The easiest suggestion would be to simply create a substantive right that would allow the convicted criminals to move to vacate their convictions. This would vest some discretion in the courts. This wouldn't resolve the preclusion issues.

Posted by: S.cotus | May 8, 2007 11:24:20 AM

Anon, It is only a bill of attainer if it hurts someone. On the other hand, it if helps, it is a "private bill."

But, there are some sticky situations (usually involving disputes between individuals, rather than the government) where congressional action has shown to be so specifically aimed at punishing someone that it didn't matter.

Posted by: S.cotus | May 8, 2007 11:27:08 AM

It would seem that what has been proposed is a private bill, and according to the House and Senate rules, there appears to be no prohibition against enacting a private bill for relief from a criminal conviction. A private bill is intended, in a broad sense, to afford equity. Immigrants who are otherwise barred from lawful residence because of a criminal conviction are somewhat routinely relieved of that bar and granted residence by private bills. Now, such immigration laws are, of course, civil laws, but the "equitable" relief of removing criminal consequences is the same. Whether it's a good idea in this case, of course, is another question.

Posted by: David Kidney | May 8, 2007 11:48:38 AM

Mr. Kidney, What the chambers “rules” say can be done or can’t be does doesn’t matter. The question if whether Congress can vacate an action of the judicial branch and make it look like the actions – determining that these men are criminals – never happened.

Private bills for individual immigrants (granting citizenship or residency, rather than overruling hardship determinations of the executive as happened in Chadda) are a different ball of wax. There, the relief given to the individual doesn’t conflict with that of any other branch. The other branches still validly determined that these people shouldn’t be in the country under the law as it saw them. Congress then passed ANOTHER law saying that they should be in the country.

There are far bigger problems then just providing relief to these criminals. Suppose, as frequently happens, a court enjoins the executive from enforcing a law. It is eventually affirmed by the Supreme Court or cert. is denied. By your logic, anyone that could stand to benefit by enforcement of such a law could seek a private bill that would vacate such decrees.

Instead, we have separation of powers.

There still are ways to provide these criminals some measure of relief. However, to complete erase court’s actions is probably impossible.

Posted by: S.cotus | May 8, 2007 12:01:15 PM

Congress sometimes makes specific exceptions to environmental laws, e.g. approving the routing of I-99 and H-3 to shortcut litigation. The courts have accepted such waivers as permissible changing of the rule of decision rather than impermissible meddling in judicial affairs. But it's not quite the same.

Posted by: John Carr | May 8, 2007 12:24:17 PM

Suppose this bill were passed by both chambers, vetoed by the president and then overridden? Hunter's kindergarten logic ("we're just initating the process for the president") sorta kinda falls apart under that scenario, doesn't it?

Posted by: KipEsquire | May 8, 2007 12:41:07 PM

I think the statute, as written, is probably unconstitutional. My question was whether the constitutional problems are essentially formalities and whether the statute could be redrafted to achieve the same result without running into constitutional problems.

Posted by: WB | May 8, 2007 1:36:25 PM

I think the only way to do it would be to require that specific agreement of another branch.

Here are two suggestions:

A non-binding resolution asking the president to pardon the criminals.
A narrowly drawn provision allowing certain criminals (who these people just happen to be) to come before a District Court and have their sentences vacated.

There is no way that Congress can go this alone.

Posted by: S.cotus | May 8, 2007 1:55:04 PM

This proposal is clearly constitutional, indeed, in some countries there is a constitutional right to have changes in criminal laws apply retroactively.

For an example of another similar law, one need look no further than the Military Commissions Act of 2006 which grants retroactive pardons of criminal acts to thousands of U.S. servicemen.

The most common term for a legislatively granted pardon, which happened in the reconstruction era on multiple occassions, is an "amnesty", rather than a pardon.

In some respects, the ability to grant an amnesty is cocommitant with the spending power. Keeping someone in prison costs money. Amnesty saves money and is sometimes money motivated (in the same vein, the executive is generally assumed to have the power to release prisoners before their mandamus date if there is simply no place to put them making it impossible to comply with the court order and hence not actionable in contempt).

The collateral effects of a conviction are set by law and a fundamentally prospective in nature. Congress is always free, for example, to allow felons to be securities brokers in the future, even if this wasn't permitted in the past.

This is undoubtedly "special legislation" as it impacts only two people. But, the Constitution doesn't prohibit special legislation. Moreover, who has a constitutional right to keep someone imprisoned that they would have standing to enforce? Criminal actions are not brought by victims, they are brought by the People. So victims lack standing. Citizen standing is almost never allowed. Where does taxpayer standing arise when the law reduces spending? A private prison has contract rights in that regard, but those rights are presumably not particular to who is imprisoned in their facility. The prisoner clearly has standing to seek release in his own case, and the People could argue in a habeas corpus action as a defense that the law was unconstitutional, but I think it is hard to identify why it would be unconstitutional.

Posted by: ohwilleke | May 8, 2007 3:35:51 PM

ohwilleke, I don’t know if you are joking or not. But here goes:

You said, “..in some countries there is a constitutional right to have changes in criminal laws apply retroactively.”
That doesn’t matter. In some countries ethnicities have specially-defined rights. Their constitutions are different and emerged under different circumstances.

You said, “For an example of another similar law, one need look no further than the Military Commissions Act of 2006 which grants retroactive pardons of criminal acts to thousands of U.S. servicemen.”
This is silly. The MCA, at best, alters a rule of decision, and perhaps restricts the jurisdiction of some courts. No convictions were at issue, nor did the plain language of the act specify any convictions or any individuals against whom indictments were pending or convictions were entered.

“The most common term for a legislatively granted pardon, which happened in the reconstruction era on multiple occassions, is an "amnesty", rather than a pardon.’
Again, amnesty is not a pardon. Amnesty is a change in the substantive law. Not the vacation of a previously entered judicial act.

“In some respects, the ability to grant an amnesty is cocommitant with the spending power. “
Congress has almost unlimited about to eliminate federal crimes from the US Code. But we are not talking about this. We are talking about the ability to erase a previous act of a court.

“The collateral effects of a conviction are set by law and a fundamentally prospective in nature. “
Yes and no. Congress can’t alter the state-law effects of federal convictions, even if there is a pardon. Now, on the other hand, if a conviction from one jurisdiction validly becomes void, then the collateral effects would change. Here we are dealing with the issue of whether Congress can vacate a prior conviction, and make the universe appear as if it never happened.

“Moreover, who has a constitutional right to keep someone imprisoned that they would have standing to enforce? “
Maybe the executive does. But the issue isn’t whether someone should be kept in prison, it is whether the conviction should be vacated.

The reason that we are saying that it is unconstitutional is that it is an attempt by Congress, without explicit constitutional authority to undertake a judicial act – vacating a conviction.

There are so many other ways to accomplish this goal.

Posted by: S.cotus | May 8, 2007 4:02:21 PM

If a majority of both houses of Congress believe that the use of deadly force in these circumstances should not be a federal crime, all they have to do is pass a bill that says so. It should be applicable not only to these two agents but to all others similarly situated. Messing around with legislative pardons of dubious constitutionality is neither necessary nor desirable.


Posted by: Kent Scheidegger | May 8, 2007 5:11:35 PM

But, Kent, that won't erase their convictions. Perhaps there could be a provision wherein they could apply to a court to have their convictions erased.

Posted by: S.cotus | May 8, 2007 5:49:30 PM

I see no reason that Congress couldn't provide that prior convictions can be vacated under section 2255.

Posted by: Kent Scheidegger | May 8, 2007 6:48:07 PM

Yes -- *CAN* be vacated under 28 USC 2255. This would be a rule of decision on a motion. The point is that such Congressional action can't be self-executing.

Posted by: S.cotus | May 8, 2007 9:25:29 PM

Isn't this just a Plaut problem?

"The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution, and which after the Revolution had produced factional strife and partisan oppression. In the 17th and 18th centuries colonial assemblies and legislatures functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments. . . . Often, however, they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal. . . .[S]uch legislation bears not on the problem of interbranch review but on the problem of finality of judicial judgments." 514 U.S. 211, 219.

The Plaut standard is pretty formalistic: as long as Congress can frame a statute as changing the substantive law, and the statute does not on its terms reopen a final judgment, it doesn't violate separation of powers.

Posted by: DN | May 9, 2007 12:14:36 PM

"Congress can’t alter the state-law effects of federal convictions, even if there is a pardon."

I disagree. If Congress can, for example, prohibit certain kinds of discrimination based upon a bankruptcy, or prohibit credit records from going back more than a certain number of years, I see no reason why the Congress could not pass a law preventing punishments from being imposed by states as a collateral effect of a federal conviction and give that law pre-emptive effect.

Indeed, under the interstate commerce clause, Congress could probably even prohibit employment discrimination based upon prior convictions if it chose to (with the possible exception of positions in state government itself where 11th Amendment immunities may be at play).

Posted by: ohwilleke | May 9, 2007 12:26:45 PM

Isn't all this beside the point? If the goal is to help these guys legislatively, then Bush has to sign a piece of paper--if he'd do that, then why not simply a pardon--another piece of paper. If the goal is to help people in their situation, then general legislation seems to be the ticket.

Posted by: federalist | May 9, 2007 12:58:14 PM

See, Federalist is right. Just issue the damn pardon. Let the criminals out. Now, of course, a pardon won’t prevent a future court from sentencing these criminals to higher prison sentences, and it won’t prevent their past conduct from being used against them in a future trial, but it will get them out of jail.

ohwilleke, As best I can tell, there are two issues you raise.

First: Whether a statute, aimed at vacating the convictions of two people has enough of an effect on interstate commerce to fall within the commerce clause. (This is different than a statute vacating a larger class of people.) We would have to make an argument that letting these criminals out of jail will cause them to buy a slurpee or something in interstate commerce.

Second: I the non-discrimination statutes you mention are really a 14th amendment issue. The power of Congress to prevent discrimination against criminals under the 14th amendment has never been tested.

Third: No statute could prevent a state court from taking into account their PRIOR convictions at sentencing or during a civil suit. If the convictions were validly vacated (that is, by a court) they might lose their preclusive effect. But, this isn’t the case.

Posted by: S.cotus | May 9, 2007 2:54:44 PM

This case shows how HR 563 should be worded - it is similar because it is an INS agent who was railroaded by the Justice Department using testimony of the criminals to do so. Joseph Occhipinti received a pardon from GH Bush Sr as a result of this bill:

House Concurrent Resolution 179 in the 103rd Congress in November, 1993, the text of which reads:

Title: Concerning the case of Joseph Occhipinti.
Requires the Attorney General to appoint a special prosecutor to investigate all allegations of a drug cartel inspired conspiracy against a named individual and to determine whether or not such individual's conviction was justified or if there was perjured testimony, organized crime coercion of witnesses, and possible prosecutorial misconduct.

States that the President should grant the individual a full and complete pardon and restore him to his position within the Immigration and Naturalization Service if the investigation finds that he was unjustly convicted.

Posted by: Zorro | Jun 22, 2007 10:56:11 AM

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