Why is the US president allowed to grant a pardon?

  • So I was reading today and I read for about the thousandth time about a presidential pardon, and I started to wonder:

    Why is the president allowed to grant a pardon? What are the limits of a presidential pardon? What happens to people barred from prison or execution etc. who are granted a presidental pardon?

  • Jasper

    Jasper Correct answer

    7 years ago

    Pardons have three major benefits:

    • By explicitly giving one person the power to overrule punishments, they make the law less impersonal. If public opinion concludes that an injustice has been done, a particular politician can be convinced to grant a pardon.
    • It makes it easier to end civil wars. A common provision of civil war settlements is an amnesty for participants in the civil war. Such an amnesty can be implemented using pardons. This can help end the cycle of vengeance that tends to make civil wars drag on.
    • It makes it easier for a president to hand over power at the end of their term of office -- or earlier, in the case of impeachment or other coup d'etat. It has become traditional for presidents to pardon a number of people at the end of their term. These pardons are often done at the suggestion of major political donors. Part of the resolution of the Watergate scandal was that Nixon was pardoned by Ford. This may not have been a quid pro quo, but it did help resolve the situation, without further degrading the former president.

    There are some limits on presidential pardons:

    • A pardon can only be granted for an alleged crime that has already allegedly been committed. It does not grant immunity for future alleged crimes, nor does it grant immunity for current alleged crimes to the extent that they continue to be committed.
    • A presidential pardon is for federal crimes. The president cannot pardon someone for a state crime (or a crime committed subject to a local jurisdiction whose power is derived from a state).
    • Unless the pardoner presents strong evidence for the pardonee's actual innocence, a pardon tends to convict the recipient in the court of public opinion. Thus, it tends to harm the reputation of the pardonee.
    • As cpast points out, a defendant can decline the benefits of a presidential pardon.

    Presidential pardons are reinforced by the constitutional prohibitions against double jeopardy and ex post facto laws. Once a person has been pardoned for a federal crime, the federal government (and any territories or districts that derive their power from the federal government) cannot re-try the pardonee for that crime.

    Presidential pardons could theoretically have enormous power: "a power of summary execution." In Tom Kratman's fictional Caliphate, a dystopian United States opposes the Caliphate. President Buckman's party passes a law granting the federal government exclusive jurisdiction over, among other things, political murders. (This is arguably constitutional under the "guarantee of a republican government" clause.) This meant that Buckman could credibly threaten a person's life by offering to pardon any future murderer of that person.

    Other limits: Pardons are only for criminal cases, and don't remove civil liability (you can still be sued). Also, pardonees have the right to decline a pardon; it can't be forced on someone.

    @cpast The right to decline a pardon was indeed assessed in *US v. Wilson*, but this ruling was overturned in *Biddle v. Petrovich*. The President may grant pardon unilaterally, without the beneficiary's consent.

    @eikre So a president could grant a pardon to someone who had committed no crime to destroy their reputation?

    Interesting that you should ask. The findings of *Wilson* were extended in *Burdick v. US*, wherein justice McKenna opined that **acceptance** of a pardon was both 1) indeed, an admission of guilt and 2) necessary, to benefit from the pardon. *Biddle* would go on to overturn the second part of this ruling, but doesn't really speak to the first. It's my opinion that, to reconcile *Biddle* with earlier jurisprudence, one should treat a pardon as neither a consequence of guilt nor as an acquittal. It's not for the Executive to determine guilt, only to manage *outcomes* that serve the public good.

    To be fair, though: Gerald Ford disagreed with me. He would quote *Burdick* when people challenged him about pardoning Nixon. On the other hand, part of the reason that a lot of people were angry about that pardon was because they thought it was supposed to indicate *innocence*. All that goes to show: If the President wants to impugn someone's good name, he has far more straightforward ways to communicate his accusations, and either way, plenty of people are going to refuse to take his word for it.

    This answer discusses the benefits of the existence, in a government, of a power to pardon. But it does not really explain how, historically, that power came to be granted to the US President. Nor does it provide any reason why the US President should have that power (rather than, say, the US Senate).

    @sampablokuper -- The first bullet point explains why it should be "one person", not a committee (like the Senate). There are only two persons whose jobs are defined in the Constitution who are elected nationally -- the President and Vice President.

    @Jasper, thanks. Your comment makes clearer what the opening sentences of the answer were intended to communicate. I have made an edit to the answer accordingly, and will remove my downvote if that becomes possible.

    @sampablokuper -- Thanks for your good-faith edit. I rolled it back, because this phrasing is simpler, and also applies to U.S. governors. In the U.S., most criminal convictions are under state jurisdiction; governors can pardon state convictions for the same reasons that presidents can pardon federal convictions. The phrase "particular politician" means "one person who is a politician".

    @Jasper, as a result of the edit, the software has now allowed me to remove my downvote, so I have done so. Thank you for explaining your rollback, and for the additional clarifications in your latest comment. If you can find a way to transfer the clarifications from your comments into your answer, I think that would be worthwhile. I would consider upvoting the answer if that happens. Thanks again.

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Content dated before 7/24/2021 11:53 AM