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Pardon

From lawbrain.com

The action of an executive official of the government that mitigates or sets aside the punishment for a crime.

The granting of a pardon to a person who has committed a crime or who has been convicted of a crime is an act of clemency, which forgives the wrongdoer and restores the person's civil rights. At the federal level, the president has the power to grant a pardon, and at the state level the governor or a pardon board made up of high-ranking state officials may grant it.

The power to grant a pardon derives from the English system in which the king had, as one of his royal prerogatives, the right to forgive virtually all forms of crimes against the crown. The Framers of the U.S. Constitution, in Article II, Section 2, Clause 1, provided that the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." Throughout U.S. history the courts have interpreted this clause to give the president virtually unlimited power to issue pardons to individuals or groups and to impose conditions on the forgiveness.

The first major court case involving the pardon power, Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366 (1866), established both the scope of the pardon power and the legal effect on a person who was pardoned. President Andrew Johnson pardoned Arkansas attorney and Confederate sympathizer Alexander Hamilton Garland, who had not been tried, for any offenses he might have committed during the Civil War. Garland sought to practice in federal court, but federal law required that he swear an oath that he never aided the Confederacy. Garland argued that the pardon absolved him of the need to take the oath. The Supreme Court agreed with Garland. It held that the scope of the pardon power "is unlimited, with the exception stated [impeachment]. It extends to every offence 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."

The power to pardon applies only to offenses against the laws of the jurisdiction of which the pardoning official is the chief executive. Thus the president may only pardon for violations of federal law, and governors may only pardon for violations of the laws of their states.

A president or governor may grant a full (unconditional) pardon or a conditional pardon. The granting of an unconditional pardon fully restores an individual's civil rights forfeited upon conviction of a crime and restores the person's innocence as though he or she had never committed a crime. This means that a recipient of a pardon may regain the right to vote and to hold various positions of public trust.

A conditional pardon imposes a condition on the offender before it becomes effective. Typically this means the commutation of a sentence. For example, the president has the power under the Pardon Clause to commute a death sentence on the condition that the accused serve the rest of his or her life in prison without eligibility for parole, even though a life sentence imposed directly by a court would otherwise be subject to parole. In upholding this type of conditional pardon, the Supreme Court in Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430 (1974), reasoned that "considerations of public policy and humanitarian impulses support an interpretation of that [pardon] power so as to permit the attachment of any condition which does not otherwise offend the Constitution."

Unless the pardon expressly states that it is issued because of a determination that the recipient was innocent, a pardon does not imply innocence. It is merely a forgiveness of the offense. It is generally assumed that acceptance of a pardon is an implicit acknowledgment of guilt, for one cannot be pardoned unless one has committed an offense.

The Constitution allows two other pardon powers besides the power of commutation. It expressly speaks about the president's power to grant "reprieves." A reprieve differs from a pardon in that it establishes a temporary delay in the enforcement of the sentence imposed by the court, without changing the sentence or forgiving the crime. A reprieve might be issued for the execution of a prisoner to give the prisoner time to prove his or her innocence. A related power is the power to grant "amnesty," which is also implicit in the pardon power. Amnesty is applied to whole classes or communities, instead of individuals. The power to issue an amnesty and the effect of an amnesty are the same as those for a pardon.

The most widely publicized pardons have involved political figures. President Gerald R. Ford's September 1974 pardon of former president Richard M. Nixon for all offenses that he had committed, or in which he had taken part, relieved Nixon from facing criminal prosecution for his role in the Watergate scandal. President Ford justified the pardon as a way to restore domestic tranquility to a nation that had spent two years in political turmoil.

In 1977, President Jimmy Carter granted an amnesty to all persons who had unlawfully evaded the military draft during the Vietnam War. Carter, too, justified his amnesty as a way to end a divisive period in U.S. history. In December 1992, President George H.W. Bush pardoned six officials of the Ronald Reagan administration who were implicated in the iran-contra affair. Bush granted the pardons shortly before leaving office. He based the pardons on his belief that the officials had been prosecuted over policy differences rather than for criminal acts.

In January 2001, a day before leaving office, President Bill Clinton issued pardons to several individuals, including financier Marc Rich and his associate Pincus Green. Rich and Green had fled to Switzerland in 1983 to avoid prosecution on fraud charges in the United States. Soon after the pardon was announced, it was revealed that Rich's ex-wife, Denise, had made a gift of $450,000 to the Clinton Library Foundation and a $109,000 donation to the Senate campaign of Hillary Rodham Clinton. The donations apparently were made during the period when she and several of Marc Rich's business associates were lobbying for the pardons. The news caused an uproar among Republicans and Democrats alike. Many of Clinton's strongest supporters said that even if there was no wrongdoing, the timing was at best a sign of extremely poor judgment. The revelations led to federal investigations. In March 2001, the House and Senate introduced legislation that would require stringent contributor disclosure for anyone seeking either a pardon or a commutation, as well as stricter disclosure rules for anyone donating to a presidential library (previously not subject to campaign disclosure laws).

Further Readings

"House Focuses on Clinton Staff in Pardon Probe." February 15, 2001. CNN.com: Inside Politics. Available online at <http://www.cnn.com/2001/ALLPOLITICS/02/15/pardon.hearing.02> (accessed August 14, 2003).

Isikoff, Michael. 2002."Scandal Still Going." Newsweek (September 16).

Moore, Kathleen Dean. 1989. Pardons: Justice, Mercy, and the Public Interest. New York: Oxford Univ. Press.



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