Pardon Power in Nineteenth-Century Minnesota

Until 1897, Minnesota’s governors enjoyed unrestricted power to pardon, or commute the sentence of, anyone convicted of a crime in state courts. The first such pardon was given in 1854, the last in November 1896. In that span fourteen governors, from Willis Gorman to David M. Clough, issued more than 1400 acts of clemency (the blanket term for pardons and commutations). They covered crimes ranging from petty theft to murder, and canceled (or reduced) penalties as minor as a one-dollar fine, and as dire as death by hanging.

The pardon power derives from the unlimited authority of kings, and thus does not fit comfortably among the limited powers of elected leaders. Nevertheless the drafters of the US Constitution gave it to the president, for crimes against the United States, and it has never been altered. In 1849 the US Congress gave Minnesota’s territorial governor identical power regarding territorial crimes, and that power was carried over into the state’s first constitution, drafted in 1857.

Territorial Governor Willis Gorman issued the first pardon in 1854, to Louis Monroe, an African American man convicted of assault with a deadly weapon. He did so at the urging of the trial judge, who wrote that the jury had simply got the case wrong. The pardon was debated vigorously in St. Paul newspapers in a back-and forth-that raised the essential question: Why and when should the governor overturn the lawful actions of a judge and jury? The question resists resolution.

Nothing in law required governors to issue pardons or commutations, yet together they did so 1430 times, because they considered it their duty. In this they were led by Alexander Ramsey, Minnesota’s first Territorial governor, then its second elected governor, and a key figure in the state constitutional conventions of 1857 that gave the governor this power. Ramsey was also the only governor to give a clear public statement about when clemency ought to be used: “some defect in the proceedings, some doubt about the guilt of the convict, some new evidence discovered, some mitigating circumstances, or other reasons.” No other governor has put it more succinctly, and all who followed him used the power precisely that way.

Minnesota’s first six state governors used the pardon power comparatively few times: 206. But with the post-Civil War population boom came a boom also in acts of clemency: In six years (1876–1882), 170 by John S. Pillsbury; in five years (1882–1887), 215 by Lucius F. Hubbard; and in four years (1889–1893), 246 by William R. Merriam.

Hubbard was one of the governors most intensely interested in clemency. He sometimes responded to pardon petitions by investigating the cases himself, and on at least two occasions visited petitioning convicts at Stillwater Prison to discuss their cases. He alone among all the governors used his power mostly for serious crimes, including many violent ones.

Sometimes, especially in the first two decades, the governors acted on no more than a letter or from the prisoner or his family. But starting with Governor Pillsbury they began asking for more formality—a petition that included statements from the prosecutor, presiding judge, and jurors. This gave them much more information, and alerted them to serious defects in the criminal justice system: overzealous prosecutors, incomplete or doubtful evidence, juries caught up in the emotions of the case, blundering defense counsel. In many of the petitions, the prosecutor, judge, and jurors joined in the plea for mercy. A common theme: He may be guilty, but he has been punished enough.

The great majority of pardons and commutations went to men (only a tiny number of Minnesota women in this era went to prison) convicted of nonviolent property crimes; these acts of clemency served to release them from prison somewhat early.

The governors, especially Pillsbury, Hubbard, and Merriam, did not shrink from taking on hard cases and difficult decisions (though, again, nothing required them to do so). Together these three granted clemency to sixty-seven killers and thirty-three men convicted of sex crimes. And though their deliberations were secret, the law required pardons to be reported every year. The press reported them, but without fanfare, and no governor paid a political price for a pardon or commutation.

For a convict, an appeal to the supreme court was expensive (a lawyer was needed) and unlikely to succeed. Applications for pardon, by contrast, cost little or nothing, required no attorney, and could argue issues—like “punished enough”—that no court would hear. Thus the governors intervened in over a thousand more criminal cases in this period than the supreme court. They were, in effect, the chief officers of criminal justice administration.

Starting again with Pillsbury, the governors asked the legislature for help. The legislature never responded directly, but in 1868 it began a series of reforms that culminated with the creation of the Board of Pardons in 1897. The first was the state reform school, which took offenders sixteen and under out of the adult system and gave their release decisions to the school’s superintendent, not the courts. The creation of the St. Cloud Reformatory, and with it indeterminate sentencing, put in place a similar mechanism from convicts under age thirty. Their release dates (parole)were decided by a committee at the reformatory. In 1893 the legislature extended eligibility for parole to most prisoners at Stillwater, too. These were early steps in the professionalization of Minnesota corrections: Experts at the prisons, not judges, would decide when convicts got out.

These steps ought to have reduced the number of clemencies—prisoners now had other ways to get free—but they did not. The two governors in office after all these reforms, Knute Nelson and David M. Clough, roughly matched the pace of their predecessors. They pardoned nearly two hundred men and women held in the St. Paul Workhouse, all for short terms (usually thirty days or less), and more than seventy eligible for parole at St. Cloud. Nelson and Clough left no explanations for these decisions.

The constitutional amendment that created the Board of Pardons, passed in 1896, did not come as a result of any scandal or discontent with the way governors had used the pardon power. Instead, it was the culmination of reforms in corrections. The amendment took away the governor’s power and gave it to a committee of three: the governor, attorney general, and chief justice. It also gave the board a staff person and required hearings to be public, decisions to be explained, and positive decisions to be unanimous.

The reforms vastly reduced the number of clemencies. While Governor Clough, for example, issued 223 in four years, in 1902 the Board of Pardons granted only thirty-five and in 1906 just fifteen. A 1941 statute created what became known as “pardons extraordinary,” or pardons given only after the convict had served his or her sentence. In time these became the only variety of clemency given.

Since 1980 the Board of Pardons has released only two people from prison early: Margaret Kinsky in 1985 and Myon Burrell in 2020. Clemency as understood in nineteenth-century Minnesota, once so common, no longer exists.