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| | The '''pardon power''' is a [[constitution]]al 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.<ref>P.S. Ruckman, Jr. 1997. “Executive Clemency in the United States: Origins, Development, and Analysis (1900-1993),”27 ''Presidential Studies Quarterly'', 251-271</ref> 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.<ref>''For'' a broader pardon power: this has been the trend in court decisions, and the prospect of a county prosecutor convicting a current or past president without the pardon power covering this seems absurd. ''Against'' a broader pardon power: viewing the states as separate sovereigns has a following on the Supreme Court.</ref> | | The '''pardon power''' is a [[constitution]]al 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.<ref>P.S. Ruckman, Jr. 1997. “Executive Clemency in the United States: Origins, Development, and Analysis (1900-1993),”27 ''Presidential Studies Quarterly'', 251-271</ref> 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.<ref>''For'' a broader pardon power: this has been the trend in court decisions, and the prospect of a county prosecutor convicting a current or past president without the pardon power covering this seems absurd. ''Against'' a broader pardon power: viewing the states as separate sovereigns has a following on the Supreme Court.</ref> |
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| − | 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 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. |
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| | 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.<ref>Patrick R. Cowlishaw, "The Conditional Presidential Pardon." 28 ''Stanford Law Review'' 149-77</ref> Felons were also forgiven if they agreed to serve one year as a soldier.<ref>William F. Duker, "The Presidential Power to Pardon." 18 ''William and Mary Law Review'' 255-72</ref> Edward III granted pardons to celebrate his birthday and James II shared pardon sales with the two ladies "then most in favor."<ref>Kathleen Dean Moore, "Pardon for Good and Sufficient Reasons," University of 27 ''Richmond Law Review'' 281-8</ref> 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''. | | 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.<ref>Patrick R. Cowlishaw, "The Conditional Presidential Pardon." 28 ''Stanford Law Review'' 149-77</ref> Felons were also forgiven if they agreed to serve one year as a soldier.<ref>William F. Duker, "The Presidential Power to Pardon." 18 ''William and Mary Law Review'' 255-72</ref> Edward III granted pardons to celebrate his birthday and James II shared pardon sales with the two ladies "then most in favor."<ref>Kathleen Dean Moore, "Pardon for Good and Sufficient Reasons," University of 27 ''Richmond Law Review'' 281-8</ref> 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''. |
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| | *[[Bill Clinton]] pardoned 140 people, many political supporters of his, in the hours before Clinton left office | | *[[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 | | *[[George W. Bush]] commuted the prison sentence of I. Lewis "Scooter" Libby |
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| | + | == Supreme Court decisions == |
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| | + | 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: |
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| | + | *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) |
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| | == Power of Congress to Pardon? == | | == Power of Congress to Pardon? == |