Presidential Pardon The 2019 Stack Overflow Developer Survey Results Are In Announcing the arrival of Valued Associate #679: Cesar Manara Planned maintenance scheduled April 17/18, 2019 at 00:00UTC (8:00pm US/Eastern)Does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary? (France)Does the President's Pardon authority extend to crimes not committed at the time of the pardon?Is there something legally stronger than a pardon that does not constitute an admission of guilt?Can use of a pre-emptive pardon also be illegal obstruction of justice?Do (any) US State Governors have legal authority to preemptively pardon persons of a state crime?Can the POTUS really pardon via tweet? If so, what would one actually look like?Can a Presidential pardon nullify a search warrant?Can Congress issue a legislative pardon?Overturning a presidential pardon and double jeopardyCan a U.S. President pardon an accessory to murder if the murder occurred in a foreign country?
How did passengers keep warm on sail ships?
What aspect of planet Earth must be changed to prevent the industrial revolution?
Is it ok to offer lower paid work as a trial period before negotiating for a full-time job?
Why can't wing-mounted spoilers be used to steepen approaches?
What does Linus Torvalds mean when he says that Git "never ever" tracks a file?
Why did Peik Lin say, "I'm not an animal"?
Am I ethically obligated to go into work on an off day if the reason is sudden?
How to support a colleague who finds meetings extremely tiring?
What to do when moving next to a bird sanctuary with a loosely-domesticated cat?
Can withdrawing asylum be illegal?
Would an alien lifeform be able to achieve space travel if lacking in vision?
Why doesn't shell automatically fix "useless use of cat"?
Could an empire control the whole planet with today's comunication methods?
One-dimensional Japanese puzzle
Drawing vertical/oblique lines in Metrical tree (tikz-qtree, tipa)
Can we generate random numbers using irrational numbers like π and e?
What happens to a Warlock's expended Spell Slots when they gain a Level?
Define a list range inside a list
Example of compact Riemannian manifold with only one geodesic.
Was credit for the black hole image misappropriated?
Why can't devices on different VLANs, but on the same subnet, communicate?
The following signatures were invalid: EXPKEYSIG 1397BC53640DB551
Identify 80s or 90s comics with ripped creatures (not dwarves)
Is there a way to generate uniformly distributed points on a sphere from a fixed amount of random real numbers per point?
Presidential Pardon
The 2019 Stack Overflow Developer Survey Results Are In
Announcing the arrival of Valued Associate #679: Cesar Manara
Planned maintenance scheduled April 17/18, 2019 at 00:00UTC (8:00pm US/Eastern)Does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary? (France)Does the President's Pardon authority extend to crimes not committed at the time of the pardon?Is there something legally stronger than a pardon that does not constitute an admission of guilt?Can use of a pre-emptive pardon also be illegal obstruction of justice?Do (any) US State Governors have legal authority to preemptively pardon persons of a state crime?Can the POTUS really pardon via tweet? If so, what would one actually look like?Can a Presidential pardon nullify a search warrant?Can Congress issue a legislative pardon?Overturning a presidential pardon and double jeopardyCan a U.S. President pardon an accessory to murder if the murder occurred in a foreign country?
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon? Can it be used to pardon any crime?
On the surface, it seems to make the president above the law. CNN just reported that president Trump promised to pardon the head of CBP if he broke the law. It would seem the president could just do this for any law or policy he doesn't like and thereby bypass Congress or the courts.
pardon
add a comment |
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon? Can it be used to pardon any crime?
On the surface, it seems to make the president above the law. CNN just reported that president Trump promised to pardon the head of CBP if he broke the law. It would seem the president could just do this for any law or policy he doesn't like and thereby bypass Congress or the courts.
pardon
add a comment |
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon? Can it be used to pardon any crime?
On the surface, it seems to make the president above the law. CNN just reported that president Trump promised to pardon the head of CBP if he broke the law. It would seem the president could just do this for any law or policy he doesn't like and thereby bypass Congress or the courts.
pardon
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon? Can it be used to pardon any crime?
On the surface, it seems to make the president above the law. CNN just reported that president Trump promised to pardon the head of CBP if he broke the law. It would seem the president could just do this for any law or policy he doesn't like and thereby bypass Congress or the courts.
pardon
pardon
asked 3 hours ago
user27343user27343
756
756
add a comment |
add a comment |
3 Answers
3
active
oldest
votes
Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.
Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.
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.
http://avalon.law.yale.edu/18th_century/fed74.asp
Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.
add a comment |
If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.
A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.
A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.
Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.
The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.
Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.
– Putvi
2 hours ago
@Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?
– David Siegel
2 hours ago
1
@Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours
– Dale M
2 hours ago
1
@DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.
– Putvi
2 hours ago
1
@Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.
– David Siegel
2 hours ago
|
show 7 more comments
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?
The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.
Relieving Wrongful Or Doubtful Convictions
One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.
Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.
The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.
This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:
Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little as possible fettered or
embarrassed. 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. On the other
hand, as men generally derive confidence from their numbers, they
might often encourage each other in an act of obduracy, and might be
less sensible to the apprehension of suspicion or censure for an
injudicious or affected clemency. On these accounts, one man appears
to be a more eligible dispenser of the mercy of government, than a
body of men
A Tool To End Insurgencies
Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.
Federalist Paper No. 74 also discusses this justification for the pardon power:
The expediency of vesting the power of pardoning in the President has,
if I mistake not, been only contested in relation to the crime of
treason. This, it has been urged, ought to have depended upon the
assent of one, or both, of the branches of the legislative body. I
shall not deny that there are strong reasons to be assigned for
requiring in this particular the concurrence of that body, or of a
part of it. As treason is a crime levelled at the immediate being of
the society, when the laws have once ascertained the guilt of the
offender, there seems a fitness in referring the expediency of an act
of mercy towards him to the judgment of the legislature. And this
ought the rather to be the case, as the supposition of the connivance
of the Chief Magistrate ought not to be entirely excluded. But there
are also strong objections to such a plan. It is not to be doubted,
that a single man of prudence and good sense is better fitted, in
delicate conjunctures, to balance the motives which may plead for and
against the remission of the punishment, than any numerous body
whatever. It deserves particular attention, that treason will often be
connected with seditions which embrace a large proportion of the
community; as lately happened in Massachusetts. In every such case, we
might expect to see the representation of the people tainted with the
same spirit which had given birth to the offense. And when parties
were pretty equally matched, the secret sympathy of the friends and
favorers of the condemned person, availing itself of the good-nature
and weakness of others, might frequently bestow impunity where the
terror of an example was necessary.
On the other hand, when the sedition had proceeded from causes which
had inflamed the resentments of the major party, they might often be
found obstinate and inexorable, when policy demanded a conduct of
forbearance and clemency. But the principal argument for reposing the
power of pardoning in this case to the Chief Magistrate is this: in
seasons of insurrection or rebellion, there are often critical
moments, when a welltimed offer of pardon to the insurgents or rebels
may restore the tranquillity of the commonwealth; and which, if
suffered to pass unimproved, it may never be possible afterwards to
recall. The dilatory process of convening the legislature, or one of
its branches, for the purpose of obtaining its sanction to the
measure, would frequently be the occasion of letting slip the golden
opportunity. The loss of a week, a day, an hour, may sometimes be
fatal. If it should be observed, that a discretionary power, with a
view to such contingencies, might be occasionally conferred upon the
President, it may be answered in the first place, that it is
questionable, whether, in a limited Constitution, that power could be
delegated by law; and in the second place, that it would generally be
impolitic beforehand to take any step which might hold out the
prospect of impunity. A proceeding of this kind, out of the usual
course, would be likely to be construed into an argument of timidity
or of weakness, and would have a tendency to embolden guilt.
Restoring Civil Rights
In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.
This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.
Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.
Other Reasons For Modern Persons
It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.
Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.
But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.
Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.
Can it be used to pardon any crime?
The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.
Pardons can be granted to identifiable groups of people, in addition to specific individuals.
There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.
add a comment |
Your Answer
StackExchange.ready(function()
var channelOptions =
tags: "".split(" "),
id: "617"
;
initTagRenderer("".split(" "), "".split(" "), channelOptions);
StackExchange.using("externalEditor", function()
// Have to fire editor after snippets, if snippets enabled
if (StackExchange.settings.snippets.snippetsEnabled)
StackExchange.using("snippets", function()
createEditor();
);
else
createEditor();
);
function createEditor()
StackExchange.prepareEditor(
heartbeatType: 'answer',
autoActivateHeartbeat: false,
convertImagesToLinks: false,
noModals: true,
showLowRepImageUploadWarning: true,
reputationToPostImages: null,
bindNavPrevention: true,
postfix: "",
imageUploader:
brandingHtml: "Powered by u003ca class="icon-imgur-white" href="https://imgur.com/"u003eu003c/au003e",
contentPolicyHtml: "User contributions licensed under u003ca href="https://creativecommons.org/licenses/by-sa/3.0/"u003ecc by-sa 3.0 with attribution requiredu003c/au003e u003ca href="https://stackoverflow.com/legal/content-policy"u003e(content policy)u003c/au003e",
allowUrls: true
,
noCode: true, onDemand: true,
discardSelector: ".discard-answer"
,immediatelyShowMarkdownHelp:true
);
);
Sign up or log in
StackExchange.ready(function ()
StackExchange.helpers.onClickDraftSave('#login-link');
);
Sign up using Google
Sign up using Facebook
Sign up using Email and Password
Post as a guest
Required, but never shown
StackExchange.ready(
function ()
StackExchange.openid.initPostLogin('.new-post-login', 'https%3a%2f%2flaw.stackexchange.com%2fquestions%2f39066%2fpresidential-pardon%23new-answer', 'question_page');
);
Post as a guest
Required, but never shown
3 Answers
3
active
oldest
votes
3 Answers
3
active
oldest
votes
active
oldest
votes
active
oldest
votes
Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.
Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.
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.
http://avalon.law.yale.edu/18th_century/fed74.asp
Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.
add a comment |
Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.
Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.
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.
http://avalon.law.yale.edu/18th_century/fed74.asp
Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.
add a comment |
Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.
Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.
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.
http://avalon.law.yale.edu/18th_century/fed74.asp
Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.
Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.
Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.
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.
http://avalon.law.yale.edu/18th_century/fed74.asp
Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.
answered 3 hours ago
PutviPutvi
86718
86718
add a comment |
add a comment |
If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.
A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.
A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.
Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.
The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.
Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.
– Putvi
2 hours ago
@Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?
– David Siegel
2 hours ago
1
@Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours
– Dale M
2 hours ago
1
@DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.
– Putvi
2 hours ago
1
@Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.
– David Siegel
2 hours ago
|
show 7 more comments
If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.
A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.
A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.
Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.
The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.
Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.
– Putvi
2 hours ago
@Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?
– David Siegel
2 hours ago
1
@Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours
– Dale M
2 hours ago
1
@DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.
– Putvi
2 hours ago
1
@Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.
– David Siegel
2 hours ago
|
show 7 more comments
If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.
A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.
A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.
Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.
The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.
If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.
A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.
A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.
Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.
The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.
answered 2 hours ago
David SiegelDavid Siegel
16.9k3665
16.9k3665
Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.
– Putvi
2 hours ago
@Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?
– David Siegel
2 hours ago
1
@Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours
– Dale M
2 hours ago
1
@DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.
– Putvi
2 hours ago
1
@Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.
– David Siegel
2 hours ago
|
show 7 more comments
Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.
– Putvi
2 hours ago
@Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?
– David Siegel
2 hours ago
1
@Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours
– Dale M
2 hours ago
1
@DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.
– Putvi
2 hours ago
1
@Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.
– David Siegel
2 hours ago
Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.
– Putvi
2 hours ago
Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.
– Putvi
2 hours ago
@Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?
– David Siegel
2 hours ago
@Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?
– David Siegel
2 hours ago
1
1
@Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours
– Dale M
2 hours ago
@Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours
– Dale M
2 hours ago
1
1
@DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.
– Putvi
2 hours ago
@DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.
– Putvi
2 hours ago
1
1
@Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.
– David Siegel
2 hours ago
@Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.
– David Siegel
2 hours ago
|
show 7 more comments
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?
The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.
Relieving Wrongful Or Doubtful Convictions
One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.
Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.
The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.
This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:
Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little as possible fettered or
embarrassed. 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. On the other
hand, as men generally derive confidence from their numbers, they
might often encourage each other in an act of obduracy, and might be
less sensible to the apprehension of suspicion or censure for an
injudicious or affected clemency. On these accounts, one man appears
to be a more eligible dispenser of the mercy of government, than a
body of men
A Tool To End Insurgencies
Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.
Federalist Paper No. 74 also discusses this justification for the pardon power:
The expediency of vesting the power of pardoning in the President has,
if I mistake not, been only contested in relation to the crime of
treason. This, it has been urged, ought to have depended upon the
assent of one, or both, of the branches of the legislative body. I
shall not deny that there are strong reasons to be assigned for
requiring in this particular the concurrence of that body, or of a
part of it. As treason is a crime levelled at the immediate being of
the society, when the laws have once ascertained the guilt of the
offender, there seems a fitness in referring the expediency of an act
of mercy towards him to the judgment of the legislature. And this
ought the rather to be the case, as the supposition of the connivance
of the Chief Magistrate ought not to be entirely excluded. But there
are also strong objections to such a plan. It is not to be doubted,
that a single man of prudence and good sense is better fitted, in
delicate conjunctures, to balance the motives which may plead for and
against the remission of the punishment, than any numerous body
whatever. It deserves particular attention, that treason will often be
connected with seditions which embrace a large proportion of the
community; as lately happened in Massachusetts. In every such case, we
might expect to see the representation of the people tainted with the
same spirit which had given birth to the offense. And when parties
were pretty equally matched, the secret sympathy of the friends and
favorers of the condemned person, availing itself of the good-nature
and weakness of others, might frequently bestow impunity where the
terror of an example was necessary.
On the other hand, when the sedition had proceeded from causes which
had inflamed the resentments of the major party, they might often be
found obstinate and inexorable, when policy demanded a conduct of
forbearance and clemency. But the principal argument for reposing the
power of pardoning in this case to the Chief Magistrate is this: in
seasons of insurrection or rebellion, there are often critical
moments, when a welltimed offer of pardon to the insurgents or rebels
may restore the tranquillity of the commonwealth; and which, if
suffered to pass unimproved, it may never be possible afterwards to
recall. The dilatory process of convening the legislature, or one of
its branches, for the purpose of obtaining its sanction to the
measure, would frequently be the occasion of letting slip the golden
opportunity. The loss of a week, a day, an hour, may sometimes be
fatal. If it should be observed, that a discretionary power, with a
view to such contingencies, might be occasionally conferred upon the
President, it may be answered in the first place, that it is
questionable, whether, in a limited Constitution, that power could be
delegated by law; and in the second place, that it would generally be
impolitic beforehand to take any step which might hold out the
prospect of impunity. A proceeding of this kind, out of the usual
course, would be likely to be construed into an argument of timidity
or of weakness, and would have a tendency to embolden guilt.
Restoring Civil Rights
In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.
This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.
Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.
Other Reasons For Modern Persons
It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.
Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.
But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.
Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.
Can it be used to pardon any crime?
The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.
Pardons can be granted to identifiable groups of people, in addition to specific individuals.
There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.
add a comment |
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?
The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.
Relieving Wrongful Or Doubtful Convictions
One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.
Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.
The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.
This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:
Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little as possible fettered or
embarrassed. 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. On the other
hand, as men generally derive confidence from their numbers, they
might often encourage each other in an act of obduracy, and might be
less sensible to the apprehension of suspicion or censure for an
injudicious or affected clemency. On these accounts, one man appears
to be a more eligible dispenser of the mercy of government, than a
body of men
A Tool To End Insurgencies
Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.
Federalist Paper No. 74 also discusses this justification for the pardon power:
The expediency of vesting the power of pardoning in the President has,
if I mistake not, been only contested in relation to the crime of
treason. This, it has been urged, ought to have depended upon the
assent of one, or both, of the branches of the legislative body. I
shall not deny that there are strong reasons to be assigned for
requiring in this particular the concurrence of that body, or of a
part of it. As treason is a crime levelled at the immediate being of
the society, when the laws have once ascertained the guilt of the
offender, there seems a fitness in referring the expediency of an act
of mercy towards him to the judgment of the legislature. And this
ought the rather to be the case, as the supposition of the connivance
of the Chief Magistrate ought not to be entirely excluded. But there
are also strong objections to such a plan. It is not to be doubted,
that a single man of prudence and good sense is better fitted, in
delicate conjunctures, to balance the motives which may plead for and
against the remission of the punishment, than any numerous body
whatever. It deserves particular attention, that treason will often be
connected with seditions which embrace a large proportion of the
community; as lately happened in Massachusetts. In every such case, we
might expect to see the representation of the people tainted with the
same spirit which had given birth to the offense. And when parties
were pretty equally matched, the secret sympathy of the friends and
favorers of the condemned person, availing itself of the good-nature
and weakness of others, might frequently bestow impunity where the
terror of an example was necessary.
On the other hand, when the sedition had proceeded from causes which
had inflamed the resentments of the major party, they might often be
found obstinate and inexorable, when policy demanded a conduct of
forbearance and clemency. But the principal argument for reposing the
power of pardoning in this case to the Chief Magistrate is this: in
seasons of insurrection or rebellion, there are often critical
moments, when a welltimed offer of pardon to the insurgents or rebels
may restore the tranquillity of the commonwealth; and which, if
suffered to pass unimproved, it may never be possible afterwards to
recall. The dilatory process of convening the legislature, or one of
its branches, for the purpose of obtaining its sanction to the
measure, would frequently be the occasion of letting slip the golden
opportunity. The loss of a week, a day, an hour, may sometimes be
fatal. If it should be observed, that a discretionary power, with a
view to such contingencies, might be occasionally conferred upon the
President, it may be answered in the first place, that it is
questionable, whether, in a limited Constitution, that power could be
delegated by law; and in the second place, that it would generally be
impolitic beforehand to take any step which might hold out the
prospect of impunity. A proceeding of this kind, out of the usual
course, would be likely to be construed into an argument of timidity
or of weakness, and would have a tendency to embolden guilt.
Restoring Civil Rights
In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.
This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.
Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.
Other Reasons For Modern Persons
It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.
Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.
But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.
Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.
Can it be used to pardon any crime?
The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.
Pardons can be granted to identifiable groups of people, in addition to specific individuals.
There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.
add a comment |
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?
The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.
Relieving Wrongful Or Doubtful Convictions
One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.
Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.
The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.
This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:
Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little as possible fettered or
embarrassed. 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. On the other
hand, as men generally derive confidence from their numbers, they
might often encourage each other in an act of obduracy, and might be
less sensible to the apprehension of suspicion or censure for an
injudicious or affected clemency. On these accounts, one man appears
to be a more eligible dispenser of the mercy of government, than a
body of men
A Tool To End Insurgencies
Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.
Federalist Paper No. 74 also discusses this justification for the pardon power:
The expediency of vesting the power of pardoning in the President has,
if I mistake not, been only contested in relation to the crime of
treason. This, it has been urged, ought to have depended upon the
assent of one, or both, of the branches of the legislative body. I
shall not deny that there are strong reasons to be assigned for
requiring in this particular the concurrence of that body, or of a
part of it. As treason is a crime levelled at the immediate being of
the society, when the laws have once ascertained the guilt of the
offender, there seems a fitness in referring the expediency of an act
of mercy towards him to the judgment of the legislature. And this
ought the rather to be the case, as the supposition of the connivance
of the Chief Magistrate ought not to be entirely excluded. But there
are also strong objections to such a plan. It is not to be doubted,
that a single man of prudence and good sense is better fitted, in
delicate conjunctures, to balance the motives which may plead for and
against the remission of the punishment, than any numerous body
whatever. It deserves particular attention, that treason will often be
connected with seditions which embrace a large proportion of the
community; as lately happened in Massachusetts. In every such case, we
might expect to see the representation of the people tainted with the
same spirit which had given birth to the offense. And when parties
were pretty equally matched, the secret sympathy of the friends and
favorers of the condemned person, availing itself of the good-nature
and weakness of others, might frequently bestow impunity where the
terror of an example was necessary.
On the other hand, when the sedition had proceeded from causes which
had inflamed the resentments of the major party, they might often be
found obstinate and inexorable, when policy demanded a conduct of
forbearance and clemency. But the principal argument for reposing the
power of pardoning in this case to the Chief Magistrate is this: in
seasons of insurrection or rebellion, there are often critical
moments, when a welltimed offer of pardon to the insurgents or rebels
may restore the tranquillity of the commonwealth; and which, if
suffered to pass unimproved, it may never be possible afterwards to
recall. The dilatory process of convening the legislature, or one of
its branches, for the purpose of obtaining its sanction to the
measure, would frequently be the occasion of letting slip the golden
opportunity. The loss of a week, a day, an hour, may sometimes be
fatal. If it should be observed, that a discretionary power, with a
view to such contingencies, might be occasionally conferred upon the
President, it may be answered in the first place, that it is
questionable, whether, in a limited Constitution, that power could be
delegated by law; and in the second place, that it would generally be
impolitic beforehand to take any step which might hold out the
prospect of impunity. A proceeding of this kind, out of the usual
course, would be likely to be construed into an argument of timidity
or of weakness, and would have a tendency to embolden guilt.
Restoring Civil Rights
In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.
This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.
Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.
Other Reasons For Modern Persons
It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.
Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.
But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.
Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.
Can it be used to pardon any crime?
The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.
Pardons can be granted to identifiable groups of people, in addition to specific individuals.
There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.
When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?
The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.
Relieving Wrongful Or Doubtful Convictions
One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.
Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.
The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.
This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:
Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little as possible fettered or
embarrassed. 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. On the other
hand, as men generally derive confidence from their numbers, they
might often encourage each other in an act of obduracy, and might be
less sensible to the apprehension of suspicion or censure for an
injudicious or affected clemency. On these accounts, one man appears
to be a more eligible dispenser of the mercy of government, than a
body of men
A Tool To End Insurgencies
Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.
Federalist Paper No. 74 also discusses this justification for the pardon power:
The expediency of vesting the power of pardoning in the President has,
if I mistake not, been only contested in relation to the crime of
treason. This, it has been urged, ought to have depended upon the
assent of one, or both, of the branches of the legislative body. I
shall not deny that there are strong reasons to be assigned for
requiring in this particular the concurrence of that body, or of a
part of it. As treason is a crime levelled at the immediate being of
the society, when the laws have once ascertained the guilt of the
offender, there seems a fitness in referring the expediency of an act
of mercy towards him to the judgment of the legislature. And this
ought the rather to be the case, as the supposition of the connivance
of the Chief Magistrate ought not to be entirely excluded. But there
are also strong objections to such a plan. It is not to be doubted,
that a single man of prudence and good sense is better fitted, in
delicate conjunctures, to balance the motives which may plead for and
against the remission of the punishment, than any numerous body
whatever. It deserves particular attention, that treason will often be
connected with seditions which embrace a large proportion of the
community; as lately happened in Massachusetts. In every such case, we
might expect to see the representation of the people tainted with the
same spirit which had given birth to the offense. And when parties
were pretty equally matched, the secret sympathy of the friends and
favorers of the condemned person, availing itself of the good-nature
and weakness of others, might frequently bestow impunity where the
terror of an example was necessary.
On the other hand, when the sedition had proceeded from causes which
had inflamed the resentments of the major party, they might often be
found obstinate and inexorable, when policy demanded a conduct of
forbearance and clemency. But the principal argument for reposing the
power of pardoning in this case to the Chief Magistrate is this: in
seasons of insurrection or rebellion, there are often critical
moments, when a welltimed offer of pardon to the insurgents or rebels
may restore the tranquillity of the commonwealth; and which, if
suffered to pass unimproved, it may never be possible afterwards to
recall. The dilatory process of convening the legislature, or one of
its branches, for the purpose of obtaining its sanction to the
measure, would frequently be the occasion of letting slip the golden
opportunity. The loss of a week, a day, an hour, may sometimes be
fatal. If it should be observed, that a discretionary power, with a
view to such contingencies, might be occasionally conferred upon the
President, it may be answered in the first place, that it is
questionable, whether, in a limited Constitution, that power could be
delegated by law; and in the second place, that it would generally be
impolitic beforehand to take any step which might hold out the
prospect of impunity. A proceeding of this kind, out of the usual
course, would be likely to be construed into an argument of timidity
or of weakness, and would have a tendency to embolden guilt.
Restoring Civil Rights
In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.
This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.
Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.
Other Reasons For Modern Persons
It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.
Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.
But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.
Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.
Can it be used to pardon any crime?
The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.
Pardons can be granted to identifiable groups of people, in addition to specific individuals.
There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.
edited 20 mins ago
answered 51 mins ago
ohwillekeohwilleke
52.8k259134
52.8k259134
add a comment |
add a comment |
Thanks for contributing an answer to Law Stack Exchange!
- Please be sure to answer the question. Provide details and share your research!
But avoid …
- Asking for help, clarification, or responding to other answers.
- Making statements based on opinion; back them up with references or personal experience.
To learn more, see our tips on writing great answers.
Sign up or log in
StackExchange.ready(function ()
StackExchange.helpers.onClickDraftSave('#login-link');
);
Sign up using Google
Sign up using Facebook
Sign up using Email and Password
Post as a guest
Required, but never shown
StackExchange.ready(
function ()
StackExchange.openid.initPostLogin('.new-post-login', 'https%3a%2f%2flaw.stackexchange.com%2fquestions%2f39066%2fpresidential-pardon%23new-answer', 'question_page');
);
Post as a guest
Required, but never shown
Sign up or log in
StackExchange.ready(function ()
StackExchange.helpers.onClickDraftSave('#login-link');
);
Sign up using Google
Sign up using Facebook
Sign up using Email and Password
Post as a guest
Required, but never shown
Sign up or log in
StackExchange.ready(function ()
StackExchange.helpers.onClickDraftSave('#login-link');
);
Sign up using Google
Sign up using Facebook
Sign up using Email and Password
Post as a guest
Required, but never shown
Sign up or log in
StackExchange.ready(function ()
StackExchange.helpers.onClickDraftSave('#login-link');
);
Sign up using Google
Sign up using Facebook
Sign up using Email and Password
Sign up using Google
Sign up using Facebook
Sign up using Email and Password
Post as a guest
Required, but never shown
Required, but never shown
Required, but never shown
Required, but never shown
Required, but never shown
Required, but never shown
Required, but never shown
Required, but never shown
Required, but never shown