In the United States, federal pardons are granted only by the president, pursuant to authority under the U.S. Constitution to grant "reprieves and pardons for offenses against the United States". Pardons extend to all federal criminal offenses, except in cases of impeachment, and entail various forms of clemency, including commuting or postponing a sentence, remitting a fine or restitution, delaying the imposition of a punishment, and providing amnesty to an entire group or class of individuals. The pardon power extends to cases involving courts-martial against members of the United States Armed Forces.
The president may grant pardons on their own accord or in response to requests made through the U.S. Department of Justice's Office of the Pardon Attorney. The Pardon Attorney investigates and reviews applications for clemency but serves only an advisory role; the president may disregard the findings. The pardon power is considered "plenary" and thus generally cannot be restricted or modified by Congress or the judiciary.Gary David Adler. 1989. "The President’s Pardon Power." In Inventing the American Presidency. Thomas E. Cronin, ed. University Press of Kansas: Lawrence, KS. p. 219. In Ex parte Garland (1867), the U.S. Supreme Court confirmed the "unlimited" nature of federal pardons (except for impeachment cases) and broadened its scope to include offenses for which legal proceedings have not been initiated. Pardons have been used for presumptive cases, most notably when President Gerald Ford pardoned Richard Nixon over any possible crimes connected with the Watergate scandal; the legal effect of such "open pardons" has not been determined by the judiciary. In Burdick v. United States (1915), the Supreme Court held that a pardon does not take effect if the defendant does not accept it.
Constitutional basis The pardon power of the president is based on Article II, Section 2, Clause 1 of the U.S. Constitution, which provides:
The U.S. Supreme Court has interpreted the provision to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites and amnesties.
Definitions A pardon is an executive order granting clemency for a conviction. It may be granted "at any time" after the commission of the crime. As per Justice Department regulations, convicted persons may only apply five or more years after their sentence has been completed. However, the president's power to pardon is not restricted by any temporal constraints except that the crime must have been committed. A pardon is an expression of the president's forgiveness and ordinarily is granted in recognition of the applicant's acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. Its practical effect is the restoration of civil rights and reversal or elimination of statutory disabilities of, e.g., firearm rights, occupational licensing, etc., associated with or caused or occasioned by a past criminal conviction. In rarer cases, such as the pardon of Richard Nixon, a pardon can also halt criminal proceedings or investigations and prevent an indictment, though this has not been tested in court. A reprieve is a temporary postponement of a punishment (refer to pardon/related concepts). A commutation is the mitigation of the sentence of someone currently serving a sentence for a crime pursuant to a conviction, without cancelling the conviction itself.
History Origins and background The concept of governments having the authority to provide relief from criminal punishment has deep and broader historical roots, including in ancient Jewish, Greek, and Roman legal principles and practice. The U.S. Constitution's pardon power originated from longstanding English tradition, which permitted the monarch to exercise the "royal prerogative of mercy" to withdraw or provide alternatives to death sentences. The first known prerogative of mercy was issued by King Ine of Wessex (688–725), and during the reign of King Henry VIII (1509–1547), it was formally declared by parliament as an exclusive right of the Crown. By the 18th century, the power had been restricted by parliament, enabling it to address potential abuses, but retained its broad application, including in the American colonies. The framers of the U.S. Constitution were directly influenced by the English practice.
Alexander Hamilton defended the pardon power in The Federalist Papers, particularly in Federalist No. 74, where he argued that such a power should be as little as possible fettered or embarrassed to ensure easy access to exceptions in favour of unfortunate guilt. Hamilton also argued that placing power solely with the President would lead to its most beneficial exercise, as a single person would be a more eligible dispenser of the mercy of the government than a body of men who 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.
Given the historical precedent, the 1787 Constitutional Convention saw little debate on whether to enshrine a pardon power; neither the Virginia nor New Jersey plan, which concerned the structure of the new government, addressed pardons. Rather, most discussions and disagreements centered on how and where presidential pardons would be exercised. Hamilton proposed amendments to the Virginia Plan that would vest the pardon power in an Executive authority that could be exercised over all offences except Treason, with a pardon for treason requiring approval by the Senate.The Records of the Federal Convention of 1787, at 20–23 (Max Farrand ed., 1911) (Virginia Plan, in Madison's notes); Id. at 292 (New Jersey Plan, in Madison's notes). The first report of the Committee of Detail proposed allowing the president to grant "reprieves and pardons", with the only exception being that a pardon would not be pleadable in bar of an impeachment,The Records of the Federal Convention of 1787, at 185 (Max Farrand ed., 1911) which was similar to English restrictions on royal pardons.
Virginia delegate Edmund Randolph submitted a motion to reincorporate an exception to cases of treason, on the basis that extending pardons to such instances was too great a trust, that the President may himself be guilty, and that the Traytors may be his own instruments. During the Virginia Ratifying Convention, fellow Virginia delegate George Mason likewise argued against ratification partly on the grounds that "the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself", which eventually establish a monarchy, and destroy the republic. James Wilson of Pennsylvania countered that if the President were himself involved in treasonous conduct, he could be impeached.The Records of the Federal Convention of 1787, at 626 (Max Farrand ed., 1911) (Virginia Plan, in Madison's notes). Responding to Randolph's motion, James Madison expressed that the Senate should be consulted for pardons that concerned treason; Roger Sherman submitted a separate proposal requiring Senate consent for all pardons, while making presidential reprieves applicable only until the subsequent Senate session. Randolph's motion was ultimately defeated by an 8–2 vote (with one divided), while Sherman's motion was defeated by a vote of 8–1.
Early history The pardon power was first used by George Washington in 1795, when he gave amnesty to participants of the Whiskey Rebellion. Pardons were subsequently issued for a wide variety of convictions and crimes. Thomas Jefferson granted amnesty to any citizen convicted of a crime under the Alien and Sedition Acts. Abraham Lincoln used clemency during the U.S. Civil War to encourage desertions from the Confederate Army; in 1868, his successor, Andrew Johnson, pardoned Jefferson Davis, the former president of the Confederacy, which was perhaps the most controversial pardon up to that point.
Until Grover Cleveland's first term (1885–1889), pardons were handwritten by the president; after typewriters came to be used for regular White House business, pardons were prepared for the president by administrative staff, requiring only that the president sign them.
Modern process
All federal pardon petitions are addressed to the president, who grants or denies the request. Typically, applications for pardons are referred for review and non-binding recommendation by the Office of the Pardon Attorney, an official of the United States Department of Justice. The number of pardons and reprieves granted has varied from administration to administration. Fewer pardons have been granted since World War II.
A federal pardon can be issued prior to the start of a legal case or inquiry, prior to any indictments being issued, for unspecified offenses, and prior to or after a conviction for a federal crime. President Gerald R. Ford's broad federal pardon of former president Richard M. Nixon in 1974 for "all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974" is a notable example of a fixed-period federal pardon that came prior to any indictments being issued and that covered unspecified federal offenses that may or may not have been committed. The legal effectiveness of such a form of pardon (an "open pardon") has not been tested in court.
The Justice Department normally requires that anyone filing a petition for a pardon wait five years after conviction or release prior to receiving a pardon. However, this policy does not bind or restrict the president's power.
While clemency may be granted without the filing of a formal request, in most cases the Office of the Pardon Attorney will consider only petitions from persons who have completed their sentences and, in addition, have demonstrated their ability to lead a responsible and productive life for a significant period after conviction or release from confinement.
The Supreme Court ruled in United States v. Wilson (1833) that a pardon could be rejected by the convict. In Burdick v. United States (1915), the court specifically said: "Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy." Commutations (reduction in prison sentence), unlike pardons (restoration of civil rights after prison sentence had been served) may not be refused. In Biddle v. Perovich , the subject of the commutation did not want to accept life in prison but wanted the death penalty restored. The Supreme Court said, "Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done."Biddle v. Perovich , at 486
Limitations Federal pardons issued by the president apply only to federal crimes; they do not apply to state or local crimes or to private civil lawsuits. Pardons for state crimes are handled by governors or a state pardon board.
The president's power to grant pardons explicitly does not apply "in cases of impeachment." This means that the president cannot use a pardon to stop an officeholder from being impeached, or to undo the effects of an impeachment and conviction.
Acceptance by the recipient