Pardon Power

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The pardon power is a constitutional power assigned to the President which allows for the mitigation of the severity of 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.[1] 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.

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.[2] Felons were also forgiven if they agreed to serve one year as a soldier.[3] Edward III granted pardons to celebrate his birthday and James II shared pardon sales with the two ladies "then most in favor."[4] 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[5] and little further discussion at the state ratifying conventions.[6]

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.[7][8][9][10][11]

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

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:[12]

  • 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

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.[13]

References

  1. P.S. Ruckman, Jr. 1997. “Executive Clemency in the United States: Origins, Development, and Analysis (1900-1993),”27 Presidential Studies Quarterly, 251-271
  2. Patrick R. Cowlishaw, "The Conditional Presidential Pardon." 28 Stanford Law Review 149-77
  3. William F. Duker, "The Presidential Power to Pardon." 18 William and Mary Law Review 255-72
  4. Kathleen Dean Moore, "Pardon for Good and Sufficient Reasons," University of 27 Richmond Law Review 281-8
  5. James N. Jorgensen. 1993. "Clemency and Pardons Note," 27 University of Richmond Law Review, 345-370
  6. David G. Adler. 1989. "The President's Pardon Power." In Thomas Cronin's Inventing the Presidency
  7. United States v. Wilson, 32 U.S. 150 (1833)
  8. Ex parte Garland, 71 U.S. 333 (1867)
  9. United States v. Klein, 80 U.S. 128 (1871)
  10. Biddle v. Perovich, 274 U.S. 480 (1927)
  11. Schick v. Reed, 419 U.S. 256 (1974)
  12. Robert J. Mcwhirter, "Baby, Don't Be Cruel: Part I: What's So "Cruel and Unusual" about the Eighth Amendment," 46 AZ Attorney 13 (Dec. 2009).
  13. Brown v. Walker, 161 U.S. 591 (1896); The Laura, 114 U.S. 411 (1885).

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