Mansell v. Turner, 9881
| Decision Date | 02 August 1963 |
| Docket Number | No. 9881,9881 |
| Citation | 384 P.2d 394,14 Utah 2d 352 |
| Parties | d 352 Paul MANSELL, Plaintiff and Appellant, v. Warden John W. TURNER, Defendant and Respondent. |
| Court | Utah Supreme Court |
Paul Mansell, pro se.
A. Pratt Kesler, Atty. Gen., Ronald N. Boyce, Asst. Atty. Gen., Salt Lake City, for respondent.
Appeal from a denial of petition for writ of habeas corpus. Affirmed.
Mansell, convicted burglar, was granted a termination of sentence by the Board of Pardons, conditioned on his leaving Utah, providing that if he returned he would be reimprisoned. He agreed to the conditions in writing, paid no attention to them, stayed in Utah and was returned to the state prison.
Petitioner urges that the conditional termination amounted to a banishment offensive to Art. I, Sections 3, 9 and 26 of the Utah Constitution, the 5th, 6th and 14th amendments of the Federal Constitution, was against public policy, hence void.
If the conditional termination were void, petitioner has no complaint as to recommitment to prison, since the compact was nudum pactum.
If he takes the inconsistent position that it was valid but unenforceable, the same result should inhere, since it would be against public policy unilaterally to enforce it in favor of the felon as against the state, but unenforceale by the latter,--particularly when the whole tenor of the conditioned compact was a matter of grace to the former.
Under Art. VII, sec. 12, Utah Constitution, implemented by Title 77-62-3, U.C.A.1953, the Board is authorized to release prisoners on condition. Under what conditions, the legislation is silent, but the authority obviously is plenary. The prisoner may reject the conditions and serve out his term. It hardly lies in his mouth to accept such conditions, obtain his release from confinement and then blithely contend his sentence is terminated and he is free as a bird. Any such ridiculous result would militate against clemency for all prisoners, and a Board of Pardons, in its right mind, would withhold from them any conditional release, simply to wait until it decided it was time for unrestricted termination.
Petitioner cites Michigan and South Carolina cases 1 in support of his position. There the court sentenced the prisoner to virtual banishment. This is no analogy to a conditional release by a state clemency agency, and it is significant to note that both Michigan and South Carolina have held in cases analogous to the instant case precisely as we are constrained to decide here. 2 The Michigan court said that 'It is generally held that a condition that the convict leave the state and never return is a valid condition.' 3 We subscribe. 4
I concur but desire to add these observations. While as pointed out in the opinion, the Board of Pardons has plenary power to release prisoners on condition, I think it implicit in the creation of the Board and its duties that the condition imposed must bear some reasonable relationship to the function it is purposed to perform. That is, it should be something calculated to assist in the treatment or rehabilitation of the individual and/or the protection of society. Only such a condition would be a valid exercise of the Board's authority. But it is easy to imagine conditions which may be capricious or arbitrary and which would have no such purpose, in which event the condition could not properly be imposed.
Without knowing more facts than are made to appear to us, I confess difficulty in seeing how the order expelling plaintiff from the state of Utah would serve the purpose indicated. In that connection I observe that in my opinion it would be particularly unwise as a matter of policy and unfair to our neighboring states to order a convict to leave the state if this were done only because it seemed undesirable to have such an individual at large in Utah. If this is so, the likelihood is that it would likewise be undesirable for him to be at large in our sister states. If the officials of our own and our sister states should follow a policy of expelling persons for no other reason than that they are convicts, it would result in merely shuttling undesirable persons back and forth to each other.
However, in deference to the authority of the Board and its wisdom in performing its duties, I am willing to assume that its order was motivated by something other than the fact that plaintiff was a convict; and that there was some particular reason why the purpose of his rehabilitation and/or public safety would best be served by his removal from the state. Upon that basis I concur in affirming the...
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...authority. See Note "Banishment as condition of pardon," 31 Minn.L.Rev. 742 (1946). For a recent case on this point see Mansell v. Turner, 384 P.2d 394 (Utah 1963). The roots of the clemency power as exercised in the states are the same of course as those of the President's clemency 28 Blac......
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