Constitutional Topic: Presidential Pardons

The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns Presidential Pardons. Pardons are
mentioned in the Constitution at Article 2,
Section 2.

A reference of particular use in the preparation of the topic was
Pardons: Justice, Mercy, and the Public Interest by Kathleen Dean Moore
(1989, Oxford University Press).

Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little as possible fettered or
embarrassed.

So wrote Alexander Hamilton in The Federalist #74, first published on
March 25, 1788. The argument was that when the power to pardon is granted, it
should be granted only to a few people, or, in the case of the U.S.
Constitution, to just one person.

The U.S. Constitution grants the power to pardon to the President. In
keeping with the feeling of the day, expressed in Hamilton’s words, the power
to pardon is virtually unqualified:

The President … shall have Power to Grant Reprieves and Pardons
for Offenses against the United States, except in Cases of
Impeachment.

Hamilton expanded on why he thought this power was important:

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.

To the framers, the power to pardon, familiar as a power of the King of
England, was necessary because the way the law was applied. In England, it was
common for minor offenses to carry a sentence of death, with pardon by the King
being the only way to avoid the punishment. Judges often applied a death
sentence, having no choice, but at the same time applied for a Royal Pardon in
the same breath. This is what Hamilton was referring to when he mentioned
“necessary severity” and “unfortunate guilt.”

President George Washington used the pardon power after the suppression of
the Whiskey Rebellion on 1794. The Rebellion was seen as one of the first
tests of the new government. The government instituted taxes on whiskey, the
government raised troops to put down a rebellion against the tax, and the
President pardoned the participants in the rebellion who had not already been
indicted.

Over time, the power of the President to pardon has evolved quite a bit from
the words in the Constitution. The President has the power to completely
overturn a criminal conviction. This is a full pardon. The conviction is
wiped away as if it never happened. The President can commute a criminal
sentence, turning a life sentence into a 10 year sentence or a death penalty
into a life sentence. The President can make a pardon conditional, vacating a
conviction but leaving paid fines in place, or even making the payment of a
fine a prerequisite before a pardon takes effect.

It appears as though a pardon can even be granted against the will of the
grantee. Originally, however, a pardon could be refused. In the case of US
v Wilson (32 US 150) the Supreme Court stated that a pardon is like a gift
that can be refused, upholding the notion in Burdick v US (236 US 79).
Then began a reversal of the so-called “acceptance doctrine” in Biddle v
Perovich (274 US 480) when it declared that the commutation of a death sentence
to a life sentence could not be refused: “A pardon in our days is not a private
act of grace from an individual happening to possess power. It is a part of the
Constitutional scheme. When granted it is the determination of the ultimate
authority that the public welfare will be better served by inflicting less than
what the judgment fixed.” President Calvin Coolidge, in an unadjudicated case,
pardoned a prisoner named Craig, and when he refused the pardon, ordered him
removed from the prison and “the doors locked behind him.”

A pardon can also be granted to a class of people, such as those involved in
the Whiskey Rebellion. In US v Klein (80 US 128), the Supreme Court
upheld such blanket or group pardons — President James Carter pardoned all
Vietnam draft dodgers.

Pardons can take place before or after a criminal proceeding. President
Gerald Ford, for example, pardoned Richard Nixon before Nixon was ever charged
with, let alone convicted, of any crime. Such pardons, however, are rare, and
general procedures dictate that at least five years of a sentence should be
served before a pardon is considered. In the Constitutional Convention of
1787, this issue was brought up and debated quickly, with no restriction on
when a pardon might be granted, suggested by James Wilson as a way of
obtaining the testimony of accomplices.

There are, however, things that a pardon cannot cover. The first and most
obvious is impeachment, since it is specifically excepted in the Constitution.
Civil liability cannot be excused — a harm against another can still be
considered a harm even if there is no longer any criminal liability. Contempts
of court cannot be pardoned, as they are offenses against the dignity of the
court, and not necessarily offenses against the law. In the Constitutional
Convention, a proposal to except treason was popular, but was defeated when
the talk turned to granting the Senate only the power to pardon treason.

There are several reasons for a President to issue a pardon, and they come
from all sides of the political world. The pardons of President William
Clinton can illustrate some of the various reasons. Clinton pardoned his
brother, Roger, for obvious familial reasons. He pardoned a pair of Hasidic
Jews convicted of defrauding the government, restoring their civil rights but
leaving monetary penalties intact. In a controversial move, he pardoned
fugitive financier Marc Rich, after application for clemency, in part, from the
state of Israel, which had benefited from Rich’s philanthropic gestures.
President Ford pardoned President Nixon of any wrong-doing in order to put a
close to the Nixon era for good. President James Madison pardoned army
deserters in an attempt to refill the military’s ranks for the War of 1812.
President Abraham Lincoln pardoned all Civil War deserters on the condition
that they return to their units to fight. Carter pardoned the Vietnam War
draft dodgers to help in the long healing process the nation endured after that
war.

Finally, there is no review of pardons. This issue, too, was brought up in
the Constitutional Convention, that pardons be granted with the consent of the
Senate, but the measure was defeated on the vote of eight states to one.
In modern days, there is an office
in the Justice Department where pardons are sent, and a Pardons Attorney who
reviews and recommends applications. The President may still receive pardons
personally, and may grant them at any time. The President need not provide a
reason for a pardon, and the courts and the Congress have no legal authority to
approve, disapprove, reject, or accept a pardon. Currently, the only way
to change the pardon power is by constitutional amendment, though history has
shown that the scope of the power can be modified by the courts (as in the
acceptance doctrine).