Pardon Power

The pardon power is a constitutional power assigned to the President which allows for the correction of political corruption of the criminal justice process, either by entirely repealing a conviction or mitigating the severity of the criminal punishment. "The President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." U.S. Constitution, Article II, Section 2, Clause 1. The United States Supreme Court has interpreted the "Pardon Power" to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, respites, remissions, and amnesties. Pardons can be granted before anyone is charged with a crime, but cannot apply to new crimes that may be committed in the future. The Department of Justice asserts that the president cannot pardon someone with respect to state (non-federal) crimes, but apparently the U.S. Supreme Court has never addressed this issue of pardoning state crimes and there are arguments on both sides of this issue.

The U.S. Supreme Court held that:

“

The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

”

Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867) (emphasis added).

As of August 27, 2023, a total of 669 reported decisions refer to "pardon power" or "pardon clause", including 255 federal, 411 state, and 1 tribal. Only 17 U.S. Supreme Court decisions refer to this, as discussed below.

The power comes from the royal English Prerogative of Kings, which predates the Norman invasion. British monarchs frequnelt sold pardons and conditional pardons were used to populate the colonies. Felons were also forgiven if they agreed to serve one year as a soldier. Edward III granted pardons to celebrate his birthday and James II shared pardon sales with the two ladies "then most in favor." To curb abuses in which kings would grant pardons in exchange for money, Parliament tried unsuccessfully to limit this power. However, in 1701 Parliament limited this power in the Act of Settlement.

Under the Articles of Confederation, the executive had no pardon power. Likewise, the power was not a feature of either of the major plans discussed at the Constitutional Convention (the Virginia Plan and the New Jersey Plan). Nor did the power appear in a first draft sent to the Committee on Detail. However, Charles Pickney and Alexander Hamilton submitted minor plans at the Convention which contained the power and John Rutlegde, a member of the Committee, scribbled it into the margins. The first real discussion of pardons did not take place until the end of a working day near the end of the Convention (August 25). Thus, there was "relative paucity of debate" at the Federal Convention concerning the pardon power and little further discussion at the state ratifying conventions.

Federalist Papers

The Federalist No. 74 (written by Alexander Hamilton well after the Convention) explains its purpose of "humanity and good policy" and to lessen harsh results of the criminal code. Several Supreme Court decisions have upheld a broad interpretation of the Pardon Power.

Alexander Hamilton wrote about why a president should have the power to pardon:

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He is also to be authorized to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

”

Controversial Pardons

Here is a list of controversial pardons by presidents throughout history:

• George Washington pardoned the leaders of the Whiskey Rebellion
• Andrew Johnson pardoned thousands of former Confederate soldiers after the Civil War
• Gerald Ford pardoned former President Richard Nixon for his actions during Watergate
• Jimmy Carter pardoned (granted amnesty) to those who evaded the draft during the Vietnam War
• George H.W. Bush pardoned 75 persons allegedly connected with the Iran-Contra affair
• Bill Clinton pardoned 140 people, many political supporters of his, in the hours before Clinton left office
• George W. Bush commuted the prison sentence of I. Lewis "Scooter" Libby

Supreme Court decisions

As of Aug. 27, 2023, a total of 17 Supreme Court decisions (including concurrences and dissents) have cited the "pardon power" or "pardon clause," including:

• Ex parte Grossman (extending the presidential pardon power to erase criminal contempt in federal district court) (cited 170 times, and questioned only 1 time)
• Bank Markazi v. Peterson (separation of powers case that addressed pardon power only in passing by analogy)
• Schick v. Reed, 419 U.S. 256 (1974) (upheld presidential pardon power to including commuting a death penalty and converting it to life imprisonment) From its dissent: "The King's pardon power, from which the President's Art. II power derives, also was subject historically to statutory limitations. See Ex parte Wells, supra, at 312-313; id., at 322 (McLean, J., dissenting)."
• Ins v. Chadha (invalidating a scheme whereby one House of Congress could act independently) Dissent cited a case holding against an Act that "impinged upon the Executive's pardon power" (citing United States v. Klein, 13 Wall. 128 (1872), where "an Act of Congress was struck for encroaching upon judicial power, but the Court found that the Act also impinged upon the Executive's exclusive pardon power. Art. II, § 2."
• Patchak v. Zinke (concurrence cited Klein)
• Nixon v. United States (found nonjusticiability, and addressed an argument about the "except in Cases of Impeachment")
• Office of Pers. Management v. Richmond (citing Knote v. United States, 95 U.S. 149, 154 (1877) for the precedent that the pardon power does not extend to an order to repay the US Treasury)
• Grzegorczyk v. United States, 142 S. Ct. 2580, 2581 (2022) (denial of a petition for a writ of certiorari):

Justice Kavanaugh on behalf of a total of 6 Justices:

That said, the Constitution affords the Executive Branch authority to unilaterally provide relief to the defendant, if the Executive wishes to do so. The Framers of the Constitution contemplated that a federal criminal conviction or sentence might later be questioned by the Executive. And Article II of the Constitution grants the President broad unilateral authority to pardon federal defendants and to commute federal sentences. Art. II, §2, cl. 1. Presidents regularly exercise that power. In order to provide relief to the defendant in this case, the Executive Branch therefore has no need to enlist the Judiciary, or to ask the Judiciary to depart from standard practices and procedures. To the extent that the Department of Justice has concluded that this defendant’s conviction should be vacated or that his sentence should be reduced, the Attorney General may recommend a pardon or commutation to the President, and the President may pardon the defendant or commute the sentence.

Justice Sotomayor in the same case in dissent from denial of a request for a GVR, on behalf of a total of 4 Justices:

Plainly, the Article II pardon power, which applies in all federal criminal cases, does not obviate or impliedly displace available judicial processes and remedies. To the contrary, while Presidential pardons and commutations may be granted as acts of mercy, to address changes in society or personal circumstances, or for other reasons, they have never been understood as mechanisms for correcting errors, whether by courts or by the Government. Moreover, relying on the theoretical availability of a pardon overlooks the fact that the courts, not just the Government, initially erred by approving Grzegorczyk’s unlawful sentence in excess of the statutory maximum.

Grzegorczyk v. United States, 142 S. Ct. 2580, 2586 n.7 (2022) (Sotomayor, J., dissenting from denial of certiorari).

Chief Justice Marshall

• Herrera v. Collins, 506 U.S. 390, 412-14 (1993) stated as follows:

Our Constitution adopts the British model and gives to the President the "Power to grant Reprieves and Pardons for Offences against the United States." Art. II, § 2, cl. 1. In United States v. Wilson, 7 Pet. 150, 160-161 (1833), Chief Justice Marshall expounded on the President's pardon power:

"As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages."

See also Ex parte Garland, 71 U.S. 333, 4 Wall. 333, 380-381, 18 L. Ed. 366 (1867); The Federalist No. 74, pp. 447-449 (C. Rossiter ed. 1961) (A. Hamilton) ("The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel").

Indirectly related

• Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 275 (1998) (holding, in connection with state clemency proceedings, that “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review”
• Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)

Other Federal Court decisions

In United States v. Noonan, 906 F.2d 952 (3d Cir. 1990), Judge Aldisert canvassed American and English precedent, courts in the British Commonwealth, and scholarly commentary. Judge Aldisert concluded:

Thus, on the basis of long-held traditional views on the effect of a pardon, covering diverse periods and sources from Bracton and Blackstone to Professor Williston, from seventeenth century English cases to those in contemporary courts of Great Britain and the British Commonwealth, from 1915 teachings of the Supreme Court, and the 1975 analysis of the Court of Appeals of the Seventh Circuit, we conclude that the Presidential pardon of 1977 does not eliminate Noonan's 1968 conviction and does not "create any factual fiction" that Noonan's conviction had not occurred to justify expunction of his criminal court record.

906 F.2d at 960. United States v. Noonan is pertinent because the recipient of the presidential pardon in that case unsuccessfully requested a court order that he "may, as well as all others must, consider the criminal indictment expunged as if it had never occurred." 906 F.2d at 954. George seeks no less. In re N., 314 U.S. App. D.C. 102, 62 F.3d 1434, 1437 (1994).

Power of Congress to Pardon?

It has never been decided whether Congress can grant pardons itself. Some argue that the grant of the power to pardon only to the President by implication precludes a power to pardon by Congress. But there is Supreme Court authority suggesting that Congress also has the power to pardon.

A Congressional Research Service (CRS) Report (Jan. 14, 2020) explained:

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A separate question, over which there appears to be some dispute, is whether Congress can itself grant pardons or amnesties through legislation. In two 19th century cases, the Supreme Court appeared to suggest that it can, see Brown v. Walker, 161 U.S. 591, 601 (1896) (noting that pardon power of President “has never been held to take from congress the power to pass acts of general amnesty”); The Laura, 114 U.S. 411, 414 (1885) (upholding law that authorized subordinate officers to remit forfeitures and penalties). Nevertheless, the executive branch has taken the position that “the Constitution gives Congress no authority to legislate a pardon for any particular individual or class of individuals,” Legislative Proposal to Nullify Criminal Convictions Obtained Under the Ethics in Government Act, 10 Op. O.L.C. 93, 94 (1986), and at least one scholar agrees, pointing out the potential for conflict between presidential and legislative clemency. See Todd David Peterson, Congressional Power Over Pardon & Amnesty: Legislative Authority in the Shadow of Presidential Prerogative, 38 WAKE FOREST L. REV. 1225, 1278 (2003) (“If Congress had the power to pardon through legislation, it would be able to defeat the President’s ability to grant conditional pardons by granting unconditional clemency to recipients of the President’s conditional pardon.”); but see James N. Jorgensen, Federal Executive Clemency Power: The President’s Prerogative to Escape Accountability, 27 U. RICH. L. REV. 345, 360 (1993) (citing Brown and The Laura for the proposition that the “[pardoning] prerogative is vested concurrently in the Congress”).

”

State pardons

The authority and use of pardons at the state level, not always by the governor, vary widely.

Georgia

The Georgia State Board of Pardons and Paroles has five members on a panel that grants pardons only in narrow circumstances, and only after a defendant has "completed all sentence(s) at least five (5) years prior to applying" for a pardon.

New York

The New York Constitution grants authority to the Governor to pardon (or grant other forms of clemency, such as commutation) for anyone convicted of state crimes. Democrat Gov. David Paterson fully used this authority.

External links

• Congressional Research Service Reports - Presidential Pardons: Overview and Selected Legal Issues (January 14, 2020)
• Pardons Page, University of Pittsburgh
• Pardon Power Blog
• TIME Magazine's "Notorious" Pardons
• Analysis by Politifact of pardon power
• Heritage Institute's history and analysis of the pardon power