Could Maryland compensate a wrongfully imprisoned person after a court had already overturned the conviction?

Plain-English summary

The Board of Public Works asked whether it could compensate a person whose conviction a court had overturned before the Governor issued a pardon. The Attorney General answered yes. A prior judicial reversal did not extinguish the Governor's pardon authority.

The opinion distinguished the power to pardon from eligibility for compensation. Under SFP §10-501, the Board could grant an amount tied to actual damages from confinement only after the Governor issued a full pardon stating that the conviction was conclusively erroneous. Even then, the Board retained discretion over a grant. The opinion's editor's note records that the Legislature later expanded the types of compensation available under that section.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

People whose convictions were vacated

The AG said a court's decision to set aside a conviction did not itself prevent the Governor from granting a pardon. For compensation under the statute then in force, the pardon still had to state that the conviction had been shown conclusively to be erroneous.

Board of Public Works

The Board could consider a grant after such a pardon, even if the court had acted first. The opinion described the grant as discretionary and connected its amount to actual damages from confinement.

Common questions

Could the Governor pardon someone after a court overturned the conviction?

Yes. The AG read the Governor's constitutional pardon authority as extending to a person whose conviction had already been set aside.

Did reversal by a court alone satisfy the compensation statute?

No. The statute analyzed in the opinion required a full gubernatorial pardon stating that the conviction had been shown conclusively to be in error.

Was compensation automatic after that pardon?

No. The opinion said the Board of Public Works had discretion to grant compensation under SFP §10-501.

Background and statutory framework

The opinion quoted Maryland Constitution, Article II, §20, which confers the Governor's pardon authority. It also examined CS §7-601, which addressed the form of a pardon and the presumption ordinarily attached to a conviction. SFP §10-501 set the separate conditions for the Board's compensation decision.

Citations and references

• SFP §10-501: the compensation provision interpreted by the opinion.
• CS §7-601: statutory pardon procedures and presumption.
• Maryland Constitution, Article II, §20: the Governor's pardon authority.

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/search-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2003/88oag72.pdf

Original opinion text

72
[88 Op. Att’y

BOARD OF PUBLIC WORKS

G OVERNOR – P ARDONS – C OMPENSATION OF E RRONEOUSLY I NCARCERATED I NDIVIDUAL – G OVERNOR M AY I SSUE P ARDON E VEN IF C OURT HAS P REVIOUSLY O VERTURNED I NDIVIDUAL’S C ONVICTION

March 27, 2003

Sheila McDonald
Executive Secretary, Board of Public Works

You have asked for our opinion concerning a State statute that authorizes the Board of Public Works (“Board”) to grant compensation to an individual who has been erroneously convicted and incarcerated and who has been pardoned by the Governor. In particular, you asked whether there is any impediment to compensation under that statute if a court overturns the conviction before the Governor acts.

In our opinion, the Board of Public Works may grant compensation to such an individual even if the conviction has been vacated by a court prior to the issuance of a pardon.1

I

Compensation Statute

Under Annotated Code of Maryland, State Finance & Procurement Article (“SFP”) §10-501, the Board may grant an erroneously convicted individual “an amount commensurate with the actual damages sustained by the individual due to confinement.” SFP §10-501(a). The amount may be paid in a lump sum or in installments. SFP §10-501(c). An individual is eligible for such a grant only if he or she has received a full pardon from the Governor

1
The analysis in this opinion originally appeared in a letter of advice relating to a specific case, which resolved differing conclusions suggested by advice rendered by this Office in prior cases. See Letter to Sheila McDonald (January 3, 2003).

Gen. 72]
73

“stating that the individual’s conviction has been shown conclusively to be in error.” SFP §10-501(b).

II

Governor’s Pardon Authority

The State Constitution gives the Governor relatively unrestricted power to grant pardons, subject to limited exceptions and certain procedural requirements. It provides:

He shall have power to grant reprieves and pardons, except in cases of impeachment, and in cases, in which he is prohibited by other Articles of this Constitution; and to remit fines and forfeitures for offences against the State; but shall not remit the principal or interest of any debt due the State, except, in cases of fines and forfeitures; and before granting a nolle prosequi, or pardon, he shall give notice, in one or more newspapers, of the application made for it, and of the day on, or after which, his decision will be given; and in every case, in which he exercises this power, he shall report to either Branch of the
Legislature, whenever required, the petitions, recommendations and reasons, which influenced his decision.

Maryland Constitution, Article II, §20.

The Legislature has also set forth certain procedures for pardons in statute.2 See Annotated Code of Maryland, Correctional Services Article (“CS”), §7-601 et seq. In particular, “[on giving the notice required by the Constitution, the Governor may ... pardon an individual convicted of a crime subject to any conditions the Governor requires....” CS §7-601(a)(2). The pardon must be in the form of a written executive order signed by the Governor under the

2
The Legislature may supplement the Governor’s pardon authority by statute. See Letter from Assistant Attorney General Robert A. Zarnoch to Delegate John J. Bishop (March 25, 1991).

74
[88 Op. Att’y

State seal, and must indicate whether it is a partial or full pardon. CS §7-601(b).3

The grant of a pardon is not contingent on a showing that the conviction was erroneous or that the individual was innocent of the crime charged. Indeed, the Legislature has indicated that the granting of a pardon does not ordinarily call into question the legitimacy of the individual’s conviction. CS §7-601(c) reads:

There is a presumption that the grantee of a pardon was lawfully and properly convicted of a crime against the State unless the order granting the pardon states that the grantee has been shown conclusively to have been convicted in error.

(emphasis supplied). However, as noted above, the Legislature has conditioned the availability of compensation for a pardoned individual on a finding by the Governor that the conviction was erroneous.

III

Analysis

The answer to your question turns on whether the Governor may pardon an individual who was once convicted, but whose conviction has since been overturned by a court. One could construe the Governor’s pardon authority to extend only to an individual who stands convicted at the time he or she applies for, or receives, a pardon. However, the State Constitution, which is the source of the Governor’s pardon authority, does not restrict the authority in that way. Indeed, the Constitution includes within the pardon authority the ability to grant a “reprieve” or a “nolle prosequi,” indicating that the Governor’s authority extends to individuals not currently convicted.

3
Other procedural requirements may also pertain. For example, if the petitioner is in the custody of the Division of Correction, under certain circumstances, the Division is required to notify a victim that the petitioner is being considered for a pardon. See CS §7-805.

Gen. 72]
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Moreover, the pardon legislation enacted by the General Assembly clearly recognizes that the Governor may pardon the innocent, as well as the guilty. There is no suggestion that the Governor’s authority to pardon an innocent person is premised upon inaction by a court or prosecutor when the individual’s innocence becomes manifest. Thus, in our view, the Governor may pardon an individual even after a court has set aside the individual’s conviction.

IV

Conclusion

In our opinion, an individual who has been erroneously convicted and confined is eligible for a pardon, notwithstanding the fact that a court has set aside the conviction. Therefore, if the Governor grants a pardon stating that it has been conclusively shown that the conviction was erroneous, the Board of Public Works has discretion under SFP §10-501 to grant compensation to that individual.

J. Joseph Curran, Jr.
Attorney General

William R. Varga
Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

Editor’s Note:

The Legislature has since expanded the type of compensation that may be awarded under SFP §10-501 to an erroneously convicted individual. See Chapter 256, Laws of Maryland 2003.