pardon power
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Pardon Power
Vested in the president by Article II, section 2, the pardon power extends to “Offenses against the United States, except in Cases of Impeachment.” Granting the power entailed a theoretical problem for the framers of the Constitution in 1787. It was vested in the Crown in England, for crimes there were reckoned as offenses against the Crown, but in a republic crimes are offenses against the people. Accordingly, it was widely held that only the people could forgive the offense. Most of the Revolutionary state constitutions provided for an executive pardon, but none did so unconditionally, and several gave the legislatures the final word. The framers of the federal Constitution saw the matter in a fresh light, less as a means of granting mercy than as an instrument for punishing or preventing crimes—pardoning a criminal to obtain his or her testimony against confederates, for instance, or granting general pardons to quell insurrections. It was on the latter ground that Alexander Hamilton, in The Federalist, no. 74, rejected the criticism of some anti‐Federalists that the pardoning power should not extend to cases of treason. No other serious objections were made to the executive pardon during the debates over the ratification of the Constitution.2
Presidents exercised the power from the beginning. George Washington pardoned two persons who had been convicted of treason in connection with the 1794 Whiskey Rebellion in Pennsylvania. John Adams pardoned John Fries, who was convicted of treason after an abortive uprising in Northampton County, Pennsylvania, in 1799. Thomas Jefferson pardoned ten newspaper printers who had been convicted under the Sedition Act of 1798. Along with those pardons, Congress voted to remit the printers' fines, suggesting that the original understanding of the president's power did not extend that far.
General pardons were also the norm, as Hamilton had suggested. James Madison in 1815, Abraham Lincoln in 1863, and Andrew Johnson in 1865 all granted such pardons. One of Johnson's pardons was challenged, giving the Supreme Court occasion to issue its definitive pronouncement on the subject. Under the Test Act of 1865, Congress required that persons seeking to practice law in federal court had to take an oath swearing that they had never given aid or comfort to enemies of the United States. An Arkansas attorney, Alexander Hamilton Garland, was unable to take the oath because he had been a Confederate sympathizer. He had, however, been pardoned, without having been tried, by President Johnson for any offenses he might have committed during the Civil War. In Ex parte Garland (1867) the Court ruled in Garland's favor, holding that a pardon “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment” (p. 380) and that it makes the offender retroactively “innocent” in the eyes of the law.
The most publicized pardons in recent decades were those granted by Presidents Gerald Ford and Jimmy Carter. In 1974 Ford bestowed upon former President Richard Nixon, “a full, free, and absolute pardon … for all offenses against the United States which he had committed or may have committed or taken part in.” Ford justified his action by paraphrasing Hamilton's language in The Federalist: to “restore the tranquility of the commonwealth.” In 1977 Carter issued a blanket amnesty proclamation—amnesty being a species of pardon—to all persons who had unlawfully evaded the military draft during the Vietnam War. His justification was essentially the same as Ford's.
President Ronald Reagan, following his convictions about crime as well as a trend that was already under way, normally refused to consider applications for pardons until five to seven year after offenders had served their full sentences. Then the pardon attorney, an officer in the Justice Department, supervised a thorough investigation to determine whether the offender had been a law‐abiding and constructive citizen since leaving prison. Few measured up: only 9 percent of the more than three thousand applicants received pardons.
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See also Inherent Powers
Bibliography
- William F. Duker,
The President's Power to Pardon: A Constitutional History , William and Mary Law Review18 (Spring 1977): 475–538
— Forrest McDonald
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pardon power
The Constitution (Article 2, Section 2) grants the President the power to reprieve and pardon individuals who have committed crimes or other offenses against the United States. A reprieve is a temporary postponement of a court's sentence, designed to give the President time to consider a request for a pardon or a reduction of the sentence. A pardon stops any further criminal judicial process from proceeding and, in effect, makes a “new person” of the offender. Amnesty is a pardon granted to a class of offenders. In the case Ex parte Garland (1867) the Supreme Court said of a pardon that “in the eye of the law the offender is as innocent as if he had never committed the offense.” A pardon restores to the offender all civil and political rights.
The framers of the Constitution gave the President the pardon power to prevent miscarriages of justice and also to provide the President with a way to end treasonous activities such as rebellion.
The President may not use the pardon power to overrule the impeachment process. Indeed, if the President used a pardon to prevent the execution of the laws, that would constitute an impeachable offense, according to Chief Justice William Howard Taft in Ex parte Grossman (1925). Any conditions that a President attaches to a pardon issued to an individual are subject to review by the Supreme Court. In two cases, Ex parte Garland and Klein v. United States (1872), the Supreme Court ruled that the pardon power could not be regulated by congressional legislation, leaving the judiciary itself as the only check on the pardon power.
Pardons are administered by the Department of Justice. The attorney general provides the President with recommendations about pardons. The attorney general, in turn, relies on the department's Office of Pardon Attorney.
After Thomas Jefferson assumed the Presidency in 1801, he pardoned members of the Democratic Societies, most of them his political supporters, who had been convicted of violating the Alien and Sedition Acts of 1798. At the end of the Civil War, President Andrew Johnson proclaimed amnesty for most Confederate soldiers and pardoned Jefferson Davis, President of the Confederate States of America. He also pardoned Dr. Samuel Mudd, the doctor who set John Wilkes Booth's broken leg after Booth assassinated Abraham Lincoln. In 1921 President Warren G. Harding issued a pardon to labor organizer and Socialist party leader Eugene V. Debs for antiwar organizing with only one condition: Debs had to travel to Washington and meet Harding in person to receive his pardon. In 1971 President Richard Nixon commuted the prison term of a former president of the Teamsters Union, Jimmy Hoffa, on condition that Hoffa take no further part in union activities.
The most unpopular pardon was issued by Gerald Ford to his predecessor, Richard Nixon, in 1974 for all offenses against the United States that he had committed “or may have committed or taken part in.” These offenses involved the obstruction of justice in the Watergate scandal of 1972, because of which Nixon resigned his office. Ford's public approval rating nose-dived from 71 to 49 percent within a week after he issued the pardon. His press secretary resigned in protest, and the pardon probably cost Ford the Presidential election of 1976. He appeared before the House Judiciary Committee to answer questions about the pardon, claiming “there never was at any time any agreement whatsoever concerning a pardon to Mr. Nixon if he were to resign and I were to become President.” Ford insisted that he had issued the pardon to Nixon to end “the long national nightmare” of Watergate. By a 55-to-24 vote, the Senate passed a resolution opposing pardons for other Watergate conspirators.
President Ronald Reagan did not offer pardons to any of those accused of violating federal laws in the Iran-Contra affair, but near the end of his term President George Bush pardoned six participants, including Caspar Weinberger, former defense secretary. Some critics charged that President Bush had pardoned Weinberger in order to prevent testimony or the introduction of evidence at the trial that might have implicated Bush directly in the cover-up. The independent counsel for Iran-Contra prosecutions, Lawrence Walsh, condemned the Presidential pardon, charging that “The Iran-Contra cover-up, which has continued for more than six years, has now been completed.”
See also Amnesty, Presidential; Bush, George; Ford, Gerald R.; Nixon, Richard M.; Reagan, Ronald; Watergate investigation (1973–74)
Sources
- David Gray Adler, “The President's Pardon Power”, in Inventing the American Presidency, edited by Thomas Cronin (Lawrence: University Press of Kansas, 1989)
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Oxford Companion to the US Supreme Court
The Oxford Companion to the Supreme Court of the United States. Copyright © 1992, 2005 by Oxford University Press. All rights reserved.
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