PRO AND CON: SHOULD THE MAYOR HAVE THE POWER TO PARDON?; MAYOR NEEDS OPTION TO OVERTURN JUDGE

Monday night the Cape Girardeau City Council refused to bring to a vote a proposed ordinance that would have given the mayor powers to remit fines and forfeitures and to grant reprieves and pardons for violations of city ordinances.

The genesis of the ordinance arose as a result of information brought to my attention about two circumstances involving incarceration of people charged with shoplifting. The first instance was two university students who were incarcerated during finals week. The second instance involved a husband and wife from Tennessee who were incarcerated at the same time.

The uniqueness of the husband-and-wife situation was that they also had a six-month-old child whom they brought with them to court. As a result of the incarceration of both the mother and father, the city had to place the child in temporary foster care with the Division of Family Services. It was my understanding that the judge wouldn't consider placing the father in jail for the five-day period and then the mother in jail after the father was released, in order that one of the parents could be with the child.

The concern about the students dealt with being able to properly study for and take their finals this past week and the municipal judge's refusal to change the sentence date to another week, which would not conflict with the finals schedule. It is my understanding that the students were allowed to get out of jail 30 minutes before the final exam and take the exam and then be brought back to the jail 30 minutes after the exam.

Both of these instances were brought to my attention by members of the Cape Girardeau Police Department.

I also might add that neither the students nor the couple from Tennessee were represented by an attorney.

After this information was brought to my attention, I reviewed the city ordinances as well as the city charter to determine whether or not any review of these sentences was allowed. Under our ordinances, if a person pleads guilty before a municipal judge, there essentially is no right for a trial de novo for review.

Further review of Missouri statutes indicated that a mayor has the power in a third-class city to remit fines and forfeitures and grant reprieves and pardons. The wording of the state statute is identical to the proposed ordinance considered by the city council. This law was adopted initially in 1883 and recodified in 1939. Cape Girardeau was a third-class city until 1981, when it adopted the city charter, which it now operates under. Prior to 1981 the mayor of Cape Girardeau, as a mayor of a third-class city, and under the counsel/manager form of government, had the same powers that was proposed to the city council.

While I would doubt that even one in 10,000 cases would ever be considered for review by the mayor, I do believe that there should be some form of review of the municipal judge's authority when it would appear that justice has not been served in a specific case.

If this power were to be granted to the mayor, it would have to be used only in the very exceptional, extra-ordinary circumstances. This ordinance could not to be used as a substitute for the normal appeal process of convictions. While there would be the potential for abuse, the council could immediately repeal the ordinance if it felt the mayor abused his or her position in granting any relief under this ordinance. While this particular matter has seemed to create significant interest since it has been brought up, it should be remembered that this power has been on the books and a state law since the late 1800s.

The revelation of the lack of an ordinance granting these powers came to light as a result of the review of the specific cases that were brought to my attention. No one has requested that this ordinance be prepared other than myself. I believe it is an adoption of an existing power granted by state statute. If abuse of this statute was rampant in third-class and fourth-class cities, I am sure the legislature in its wisdom would repeal the authority granting mayors of third- and fourth-class cities the power to remit fines or reprieve or pardon ordinance violators. The legislature in over 100 years has not done this. The governor of Missouri has the authority to grant pardons of convicted felons and misdemeanants. The governors of Missouri over the years have used this power on several occasions. All that is being requested at this time is that the power be available in the event there is an abuse or injustice committed in Municipal Court.

An ordinance of this nature certainly can be perceived by the public as granting the mayor significant power. I must re-emphasis that this ordinance should only be used in the most extraordinary and unusual circumstances and only after a full investigation of the facts of a person's case. It should not be used as a run-of-the-mill remedy for people's problems with the Municipal Court.

Al Spradling III is the mayor of Cape Girardeau.