Pardons

SIGNIFICANCE: The power of government to pardon criminals is an essential part of the checks and balances of the American constitutional system, as it allows executive branches to check the fairness of rulings from the judicial branches.

Modern government’s power to pardon has its origin in ancient Hebrew law. It also existed within European churches and monarchies that had the power of clemency during medieval times. Centuries later, in England, the pardon power was recognized as the “royal prerogative of mercy.” In the United States, pardons are viewed as a way for the executive branches of state and federal government to check the judiciary.

Many scholars view the pardon power as antidemocratic because it permits one person to subvert the rulings of the criminal justice system. However, the Framers of the US Constitution supported the idea of a pardon power because it allowed executive leaders to use well-timed pardons during times of crisis to quell rebellion among dissatisfied segments of the population.

The chief executive officers at the national and the state levels may issue pardons in particular cases. In each of the fifty states, a board of pardons makes recommendations—often in consultation with the state boards of parole—on persons who should be given pardons. Three main goals are served through the use of the pardon power: remedying injustice, removing the disgrace of conviction, and mitigating the punishment stage of the criminal justice system. It is rare for pardons to be issued for injustices, but many convicted persons are released from prison after they are found to have been wrongfully convicted. Pardons are more commonly employed in cases in which young offenders seek to expunge their criminal records in order to pursue careers that are not open to convicted felons. Pardons allow all former convicts to find employment more easily and generally remove the disgrace of criminal records.

Presidential Pardons

The US Constitution provides US presidents with the power to pardon individuals for offenses against the United States, except in cases of impeachment. President pardons generally receive little attention, but they have been exercised frequently throughout history. In Ex parte Garland (1866), the US Supreme Court ruled that Congress cannot limit the president’s pardon power through legislation. Hence, the power to pardon at the federal level is potentially unlimited. Moreover, presidents can issue pardons at any time during judicial proceedings and for any offense. In fact, offenses do not even have to be specified, and a person need not be convicted of a crime to be issued a pardon.

By contrast, a large majority of states have placed limitations on their governors’ power to pardon. For example, many states have imposed postconviction requirements upon governors, requiring that a person must first be convicted of a crime to be eligible for a pardon.

The Pardon of Richard M. Nixon

The most controversial pardon in American history was issued on September 8, 1974, when President Gerald R. Ford pardoned former president Richard M. Nixon one month after succeeding Nixon as president. At that moment, Nixon had not even been charged with any crime; however, he was under investigation for his involvement in a burglary at the Democratic headquarters at the Watergate hotel in Washington, DC. Nevertheless, Ford’s proclamation pardoned Nixon for all offenses against the United States that he may have committed during his presidency.

Many Americans believed that Ford’s pardon of Nixon was motivated by partisan interests and contradicted the assumption of the Framers of the Constitution that presidents would not break the law. In fact, some speculated that Ford promised to pardon Nixon even before Nixon named him vice president on Spiro Agnew’s resignation, thus putting him in line for the presidency. Nevertheless, in Murphy v. Ford (1975), a federal district court judge upheld the constitutionality of Ford’s pardon of Nixon. Citing Ex parte Garland as precedent, the judge reaffirmed that the president’s power to pardon is not subject to any limitations.

Bush’s Pardons of Iran-Contra Figures

In December 1992, President George H. W. Bush pardoned six key figures in the Iran-Contra scandal, which involved members of President Ronald Reagan’s administration illegally selling weapons to Iran during the 1980s in exchange for funds to support the Contras who were fighting against Nicaragua’s Sandinista government. Congress had specifically addressed the issue of the Contras by passing legislation to keep the US government out of the Nicaraguan civil war. In December 1992, Reagan’s former vice president, George H. W. Bush, was himself a lame-duck president, after losing his bid for reelection in November. Bush pardoned former defense secretary Caspar Weinberger, three Central Intelligence Agency officials, and two former advisers to Reagan. By pardoning these people, Bush halted the criminal justice process and prevented more information from surfacing about the scandal.

The pardon power is a significant grant of authority bestowed upon US presidents. The pardons issued by Ford and Bush demonstrate that the power might be used for political purposes and, more important, might pose risks to democratic government. The pardon power has the potential of being used by governors and presidents to conceal criminal and other government misconduct. Therefore, some politicians, such as former senator Walter Mondale of Minnesota, have proposed constitutional amendments to place a postconviction limitation on the president’s power to pardon individuals for federal crimes. Until such an amendment is ratified, however, the US Supreme Court’s interpretation of the pardon power prohibits restrictions upon presidents.

Twenty-First Century Presidential Pardons

As presidents continued to make use of the power to grant pardons into the twenty-first century, the speculated reasons behind such actions and the decisions about who to pardon remained varied as well as debated. In comparison to their more contemporary predecessors, presidents George W. Bush (2001–9) and Barack Obama (2009–17) utilized the full pardon power fewer times. However, both were involved in several overall grants of clemency, with Obama reportedly commuting more sentences (over 1,700) than any other president in the recorded history of the presidency. It was believed that Obama, who only issued 212 pardons in his two terms in office, focused more on commutations in an attempt to make a difference in the number of people serving lengthy sentences for more minor drug offenses. In a departure from the majority of past presidents, Donald Trump, who was elected in 2016, granted his first presidential pardon within his first year in office, and it proved controversial as he had granted the clemency to former Arizona sheriff Joseph Arpaio, who had been convicted of criminal contempt and was known for ruthlessly cracking down on undocumented immigrants. After Trump had issued twenty-five pardons by February 2020, debates persisted about whether presidents should consult with the Department of Justice's pardon office and whether pardoning decisions were made for suitable reasons. At the same time, Gamble v. United States (2019), in which the Supreme Court upheld the "dual sovereignty" doctrine which allows states to prosecute a defendant under state law after they have been prosecuted under federal law without violating double jeopardy. The case answered the question many had about whether states could pursue charges against those Trump had pardoned. In November 2020, Trump pardoned former National Security Advisor Michael Flynn after he had pleaded guilty of making false statements to the FBI. At the end of his presidency, in December 2020, Trump pardoned twenty-six of his allies, including former campaign chairman Paul Manafort and his son-in-law's father, Charles Kushner. In his time in office from 2017 to 2021, Trump issued 143 pardons and 93 commutations.

Trump’s successor, President Joe Biden, also issued a number of commutations for non-violent drug offenses and symbolically pardons thousands of US service members who had been arrested on the military’s former ban on gay sex. The ban was abolished in 2013.

Bibliography

Chabot, Steve. Presidential Pardon Power: Hearing Before the Committee on the Judiciary, US House of Representatives. Collingdale: Diane, 2003. Print.

Eisen, Lauren-Brooke, et al. "Presidential Pardon Power Explained." Brennan Center, 9 Jan. 2021, www.brennancenter.org/our-work/research-reports/presidential-pardon-power-explained. Accessed 8 July 2024.

Genovese, Michael. The Power of the American Presidency, 1789–2000. New York: Oxford UP, 2000. Print.

Gramlich. "Trump Used His Clemency Power Sparingly Despite a Raft of Late Pardons and Commutations." Pew Research Center, 22 Jan. 2021, www.pewresearch.org/short-reads/2021/01/22/trump-used-his-clemency-power-sparingly-despite-a-raft-of-late-pardons-and-commutations/. Accessed 8 July 2024.

Howe, Amy. "The Supreme Court and the President's Pardon Power." SCOTUSblog, 1 Jan. 2021, www.scotusblog.com/2021/01/the-supreme-court-and-the-presidents-pardon-power. Accessed 8 July 2024.

Johnson, Scott P., and Christopher E. Smith. “White House Scandals and the Presidential Pardon Power: Persistent Risks and Prospects for Reform.” New England Law Review (1999). Print.

Liptak, Kevin, et al. "Trump Pardons Former Sheriff Joe Arpaio." CNN, 27 Aug. 2017, www.cnn.com/2017/08/25/politics/sheriff-joe-arpaio-donald-trump-pardon/index.html. Accessed 8 July 2024.

Miller, Zeke. "Biden Pardons Potentially Thousands of Ex-Service Members Convicted Under Now-Repealed Gay Sex Ban." Associated Press, 26 June 2024, apnews.com/article/biden-lgbtq-pride-pardon-military-pentagon-sodomy-a83b799323380de10aac0ca6fb57595b. Accessed 8 July 2024.

Macgill, Hugh C. “The Nixon Pardon: Limits on the Benign Prerogative.” Connecticut Law Review (1974). Print.

Mollenhoff, Clark R. The Man Who Pardoned Nixon. New York: St. Martin’s, 1976. Print.