pardon separation-of-powers
What allows the Connecticut legislature to exonerate previous witch convictions?
<p>A number of news services have report on the Connecticut legislature voting to &quot;exonerate&quot; witch convictions from the 17th century.  For example, <a href="https://www.wtnh.com/news/connecticut/connecticut-senates-passes-resolution-to-exonerate-witch-trial-victims/" rel="nofollow noreferrer">this article from wtnh.com news:</a></p>
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<p>With distant family members looking on, Connecticut senators voted Thursday to absolve the 12 women and men convicted of witchcraft — 11 of whom were executed — more than 370 years ago and apologize for the “miscarriage of justice” that occurred over a dark 15-year-period of the state’s colonial history.</p>
<p>The Senate voted 33-1 in favor of a resolution that officially proclaimed their innocence. ... Some of the descendants recently learned through genealogy testing that they were related to the accused witches and have since lobbied the state’s General Assembly to officially clear their names.</p>
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<p>I'm not familiar with the Connecticut constitution, but it seems that most states in the United States tend to follow the general format of the U.S. Consitution.</p>
<p>What part of the Connecticut constitution allows the legislature to do this?  That would seem to violate separation of powers for the legislature to void a court decision.  I can understand a pardon from the governor, since that tends to be an enumerated power.  But the <em>legislature</em>?</p>
<p><a href="https://www.cga.ct.gov/asp/content/constitutions/ctconstitution.htm" rel="nofollow noreferrer">Article XVIII</a> of the Connecticut constitution mentions the separation of powers:</p>
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<p>The powers of government shall be divided into three distinct
departments, and each of them confided to a separate magistracy....</p>
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<p>And article FIVE section 1 says that &quot;The powers and jurisdiction of these courts shall be defined by law.&quot;  But from my lay person understanding, allowing the legislature to define the &quot;powers and jurisdiction&quot; <em>of the courts</em> wouldn't allow the legislature to grant the power to <em>themselves</em>.</p>
<p>It looks like the Connecticut constitution doesn't enumerate legislative powers the way the U.S. Constitution does.  And that sort of makes sense since &quot;police powers&quot; are granted to the states, and their legislatures can pretty much do anything that they want, as long as it isn't specifically prohibited by the state or U.S. Constitution.</p>
<p>But since Article FIVE says specifically that &quot;powers of government shall be <em>divided</em>...&quot; [emphasis added], it seems to my lay-person reasoning that the legislature couldn't intrude into court decision unless specifically authorized elsewhere in the Connecticut constitution.</p>
<p>The news article linked above mentions &quot;Because it’s a resolution, it does not require the governor’s signature.&quot;  Does that mean it's all for show?  That it doesn't truly exonerate the victims?</p>

<p>The <a href="https://legiscan.com/CT/bill/HJ00034/2023" rel="noreferrer">resolution in Connecticut</a> is a statement that has been agreed by the state's legislature, but is not a law. If it were, it would indeed need to be signed by the Governor, by virtue of Article 4, Section 15 of the state Constitution. It exonerates the victims insofar as it expresses the current legislature's disapproval of the witchcraft trials of the past, and apologizes to living relatives. All of the victims are long dead, whether they were executed by the state or not, so even if this were a legally-effective pardon, it would have no other practical consequences.</p>
<p>That said, a state legislature could enact pardons for named individuals, or a class of people. It would be unlawful to criminalize a named person (that's a &quot;bill of attainder&quot;) or to punish someone for an act that wasn't a crime at the time (an &quot;ex post facto law&quot;). But the opposite, which reduces or eliminates a punishment, is not covered by the federal or state constitutional bans on such laws. That was explained by Samuel Chase in <a href="https://supreme.justia.com/cases/federal/us/3/386/" rel="noreferrer"><em>Calder v Bull</em>, 3 U.S. 386</a>, a Supreme Court decision of 1798 dealing with actions of the Connecticut legislature ordering a retrial in a probate case (with my emphasis):</p>
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<p>Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but <strong>there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon</strong>. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.</p>
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<p>At the time, Connecticut's system for pardons made it so that an offender would always have to petition the legislature to pass a bill to that specific effect. That model predated the U.S. Constitution, and continued to operate after its ratification. The Governor only had the power to grant temporary reprieves, when the legislature was out of session - in fact, he still does (Article 4, Section 13 of the Constitution of Connecticut). Presently, the state has instituted a permanent system of a Board of Pardons and Paroles, but in principle they could enact some other model. The contemporaneous <em>A System of the Laws of the State of Connecticut</em> by Zephaniah Smith (1795) <a href="https://www.google.co.uk/books/edition/A_System_of_the_Laws_of_the_State_of_Con/dBE4AAAAIAAJ?hl=en&amp;gbpv=1&amp;pg=RA1-PA406&amp;printsec=frontcover" rel="noreferrer">says in Book 5, Chapter 26</a>:</p>
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<p>The power of granting pardon to criminals sentenced to death, or to any other punishment, is vested by law in the legislature.</p>
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<p>This carries forward a practice from the British legislatures, which also often passed acts to pardon or indemnify certain offenders. There was therefore quite a long history for Chase to allude to, even though he was writing not long after the revolution, in terms of this being part of the standard panoply of things a state legislature can generally do.</p>
