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Presidential Pardons

Introduction

The U.S. Constitution establishes the power of the presidential pardon to forgive individuals for federal criminal acts. From the days of George Washington presidents have granted pardons and reprieves to individuals and groups of people to forgive them for offenses against the United States. In fact, the founding fathers were aware of the English kings’ absolute power to grant pardons and decided to grant this power to the president. So, why would a president want to give a pardon?

Well, a president may grant a pardon for many reasons, including to obtain justice for an individual, for public-policy purposes such as to ensure peace in the case of an uprising or after a conflict (such as war), and even to help out a friend.

In this article, we’ll explore who the president can grant pardons to, the different types of pardons and reprieves, the process of asking for a presidential pardon, and some high-profile (and controversial) presidential pardons.

Next, we’ll take a look at who the president can pardon.

Who Can the President Pardon?

Article II, Section 2 of the U.S. Constitution states as follows:

The President…shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

In general, a pardon is the act of forgiving a crime. A pardon nullifies punishments or other legal consequences of a crime. However, a presidential pardon does not expunge a crime or remedy the past act. In other words, the crime can still be taken into consideration against the wrongdoer (e.g. on a job application or when giving a sentence for a different crime). For example, if the pardoned person is later tried for a similar crime, the pardoned crime may be taken into consideration when giving the sentence for the new crime. The pardon does not blot out the past.

One key thing to keep in mind: Presidential pardons only apply to federal criminal acts against the United States.

So, the president cannot pardon a person for violations of any federal civil laws or state criminal or civil laws. For example, if a person commits armed robbery at a local gas station and is convicted under state law for armed robbery, that person cannot receive a presidential pardon. Why? Because that person committed a state criminal act, not a federal criminal act. However, if that person also robbed a U.S. post office (a federal facility), then he or she could petition the president for a pardon of the robbery at the U.S. post office.

Presidential pardons can be granted anytime after an offense has been committed including before, during, or after a conviction for the offense. If granted before a conviction is given, it prevents any penalties from attaching to the person. If granted after a conviction, it removes the penalties, and restores the person to all his or her civil rights. However, a pardon can never be granted before an offense has been committed – because the president does not have the power to waive the laws.

Furthermore, because the power of the presidential pardon comes directly from the U.S. Constitution, it cannot modified, diminished or altered by any laws passed by Congress, except by an amendment to the Constitution (which is generally very difficult to do). Also, the president has unlimited pardon power, except in cases of impeachment. This means the president can pardon as many individuals as he or she wants for any federal criminal acts against the United States, unless that individual has been impeached by Congress (which is also very rare).

Next, we’ll look at the different types of pardons and reprieves that the President can grant.

Different Types of Pardons and Reprieves

Article II, Section 2 of the U.S. Constitution states that the President may "grant reprieves and pardons." So, what exactly is a reprieve? And what types of pardons can the President grant?

A reprieve is merely a temporary postponement of a criminal sentence. For example, the president may decide to delay the death penalty for an individual. However, a reprieve does not relieve the individual from serving the sentence. So, if the individual was sentenced to the death penalty he or she would still receive the death penalty at some later point (unless the president actually grants a pardon to the individual).

So, what types of pardons can the president grant? Well, the president can grant many different types of pardons including absolute, conditional, and partial pardons.

An absolute pardon completely releases the wrongdoer from punishment and grants back all the wrongdoer’s civil rights. For example, if an individual commits federal tax evasion (i.e. did not pay his or her federal taxes), and the president pardons that individual, then he or she would be relieved of facing any imprisonment for the tax evasion.

A conditional pardon requires the wrongdoer to satisfy some type of requirement before receiving the pardon (i.e. a prerequisite). For example, the president may require the wrongdoer to serve out a parole sentence before the conditional pardon takes effect. If the wrongdoer fails to meet the prerequisite, then the wrongdoer will likely not receive the pardon.

A partial pardon releases the wrongdoer from some, but not all, of the punishment of a crime. For example, if the wrongdoer was convicted on two separate criminal charges, the president may elect to pardon only one of the charges. So, if the wrongdoer was convicted of treason against the United States and attempted arson on a federal building, the President may elect to pardon the wrongdoer for just treason or just attempted arson, but not both.

Presidents may also give commutations or amnesties to wrongdoers. A commutation occurs when the president gives a less severe punishment for a crime that what has already been issued by a judge. For example, the president may reduce a judge’s order for the death penalty of an individual to a life in prison sentence. An amnesty is a type of pardon given to a group or class of individuals.

Now that you have a better understanding of the different types of pardons and reprieves available to the president, let’s explore the process of the presidential pardon.

The Process of the Presidential Pardon

The U.S. Constitution offers no guidance on how the process of a presidential pardon should be carried out; however, a standard system has been created over time to deal with the process of presidential pardons. But while this system is almost always followed, the president is under no legal obligation to follow it. In fact, the president is free to completely disregard the system. Let’s take a closer look at this system.

From George Washington to 1865, presidents generally handled the pardon process on their own. As the office of the president grew, in 1865 the office of Pardon Clerk was set up to take over the pardon process to relieve the president of the administrative work. In 1893, the office of the Attorney in Charge of Pardons took over the functions and responsibilities of the Pardon Clerk. Eventually, the U.S. Department of Justice took over the task of administering the pardon process through its Office of the Pardon Attorney.

Today, the Office of the Pardon Attorney handles all petitions for presidential pardons. There is one person who acts as the Pardon Attorney with a staff of 14 or so junior attorneys. Title 28 of the U.S. Code of Federal Regulations, Sections 1.1-1.10, set forth the general guidelines for how a person can petition for a presidential pardon.

With that background in mind, let’s take a look at the actual pardon process.

The Pardon Process

The petitioner, i.e. person seeking the pardon, must:

Submit a pardon petition to the Office of the Pardon Attorney for federal criminal convictions only.
Generally wait 5 years after conviction or the end of jail before he or she can be eligible for a pardon.
State the reason for seeking a pardon to the Office of Pardon Attorney.
Provide thorough background information to Office of Pardon Attorney

NOTE: Pardons for military offenses must be sent directly to the secretary of the military department that had original jurisdiction in the individual’s case. For example, if a soldier in the Army was court-martialed for a particular offense, and wanted a presidential pardon, that soldier would have to submit his or her application to the Secretary of the Army.

A presidential pardon will not change the character of the military discharge. So, for example, if a member of the Navy receives a dishonorable discharge, a presidential pardon of that Navy member will not eliminate the dishonorable discharge.

Provide character references to the Office of Pardon Attorney.
Await the decision of the president.

REMEMBER: As stated earlier, pardons do not erase or expunge a person’s record or conviction. Therefore, a person who receives a presidential pardon would still have to disclose all their convictions where such information is required (e.g. applying for a new job). Also, states are usually free to impose civil disabilities on the person, like the loss of the right to vote and/or hold state public office.

No appeals allowed.

No hearing is held on the pardon petition, and the president’s decision is final without any grounds for appeal.
Also, the information and reasoning upon which the president makes the decision is not available under the Freedom of Information Act. In other words, if the petitioner is denied his or her petition to be pardoned, the petitioner cannot ask for the information used to make the decision.
The petitioner must wait at least 2 years from the date of the denial to submit another pardon petition.

Remember that the president is free to disregard everything we just stated (because the pardon power is nearly unlimited) – but that rarely happens. Presidents generally follow the above process and let the Office of the Pardon Attorney do their work.

Next, let’s explore some high-profile pardons and reprieves.

High-Profile Pardons

There have been a number of high-profile pardons, reprieves, and amnesties throughout U.S. history. George Washington granted the first presidential pardon (or amnesty) in U.S. history in his last day in office when he pardoned the leaders of the Whiskey Rebellion. Tom the Tinker is credited as the first person to receive a presidential pardon, because of his involvement in the Whiskey Rebellion.

President Andrew Jackson is the only president to have actually received a rejection from an individual of his pardon. George Wilson, a postal clerk, robbed a federal train and killed a guard during the presidency of Jackson. The court convicted him and sentenced him to death. Because of public sentiment against capital punishment, Jackson granted Wilson a pardon. However, Wilson refused it! The Supreme Court had to step in to decide if a person could refuse a presidential pardon, and it decided that a person is free to decline a pardon. In other words, a person must actually accept the pardon. Why would someone refuse a pardon? It sure doesn’t seem too logical. If only we could ask Wilson…

President Andrew Johnson granted amnesty to all Confederate soldiers after the Civil War, and he also granted pardons to Dr. Samuel Mudd, Edmund Spangler, and Samuel Arnold – all charged with conspiring to assassinate President Abraham Lincoln.

President Harry Truman commuted, i.e. lessened, Oscar Collazo’s death sentence to a life in prison sentence for his attempted assassination of Truman. Truman actually met the man that tried to kill him and granted him the commutation!

President Gerald Ford pardoned President Richard Nixon for Nixon’s misconduct in the Watergate scandal. President Jimmy Carter granted amnesty to all the Vietnam draft dodgers. And President Bill Clinton pardoned around 140 people in his last day in office, including Marc Rich, who committed tax evasion and illegal trading with Iran during the Iran hostage crises.

Now that you have a better picture of some of the high-profile pardons, we’ll conclude this article with some main points to keep in mind.

Conclusion

The founding fathers of the U.S. Constitution saw the importance of granting the president the power to pardon individuals for wrong acts. Alexander Hamilton stated in Federalist 74:

It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motive which may plead for and against the remission of the punishment, than any numerous body whatever…[I]n seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.

In other words, Hamilton believed that there were times when a pardon, if judged properly and given at the right time, could benefit everyone. Hopefully our presidents take Hamilton’s advice and grant pardons for the right reasons.