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]

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 Viginia 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 25th). 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]

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]

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.[12]

  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. Brown v. Walker, 161 U.S. 591 (1896); The Laura, 114 U.S. 411 (1885).

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